Citation Nr: 0001920 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 92-11 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Whether a timely notice of disagreement was filed with regard to a claim for entitlement to an effective date earlier than August 1, 1989, for the award of service connection for a right wrist disability. (The issue of whether an April 1958 decision of the Board of Veterans' Appeals denying service connection for a right wrist disability should be revised or reversed on the grounds of clear and unmistakable error, Docket Number 97-32 548A, is the subject of a separate decision). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from September 1953 to September 1956. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions issued by the Manchester, New Hampshire, Department of Veterans Affairs (VA) Regional Office (RO). In a decision dated September 19, 1997, the Board determined that the appellant had not filed a timely notice of disagreement with regard to a claim for entitlement to an effective date earlier than August 1, 1989, for the award of service connection for a right wrist disability. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In October 1998, counsel for VA filed an unopposed motion to vacate and remand the Board's decision of February 1997. The motion was granted by Order of the Court dated in February 1999, and the case has been remanded to the Board for further readjudication and disposition in accordance with the Court's order. FINDINGS OF FACT 1. A rating decision issued in August 1991 implemented a Hearing Officer's decision to grant service connection for a right wrist disability. A 10 percent rating was assigned for this disability effective from August 1, 1989. 2. The appellant timely perfected an appeal to the Board as to the proper effective date assigned for the 10 percent rating for the right wrist disability with the filing of a VA Form 1-9 Substantive Appeal in June 1992. However, he withdrew his appeal at a prehearing conference held before a member of the Board in November 1992. 3. The appellant's November 1994 letter was received more than three years after mailing of the notice of the August 1991 rating decision, and there is no other correspondence of record which could be construed as a valid Notice of Disagreement filed after the November 1992 withdrawal of the appeal on the earlier effective date issue. CONCLUSIONS OF LAW 1. The appellant withdrew his June 1992 Substantive Appeal as to the issue of entitlement to an effective date earlier than August 1, 1989, for the award of service connection for a right wrist disability. 38 C.F.R. § 20.204(b) and (c) (1999). 2. The appellant's November 1994 letter was not timely as to establishing a valid Notice of Disagreement with regard to the effective date assigned for the right wrist disability by the August 1991 rating decision. 38 C.F.R. § 20.302(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The pertinent facts in this case are not in dispute. In August 1989, the appellant's representative filed a memorandum requesting consideration of a previously denied claim seeking entitlement to service connection for a right wrist disability. Evidence submitted in support of the claim included a statement dated August 1, 1989, that was authored by a VA orthopedic specialist who stated that in his opinion, the appellant's instability in his right wrist was the direct result of a surgical excision procedure performed in service. Service connection was initially denied by the RO in a confirmed rating decision dated in August 1989 on the basis that the evidence submitted was not new and material sufficient to reopen the claim. The appellant's representative filed a notice of disagreement with respect to this rating decision in May 1990, and following issuance of a statement of the case in May 1990, the appellant perfected an appeal by filed a VA Form 1-9 (the substantive appeal) in August 1990. In October 1990, the RO received a request for a hearing before a Hearing Officer on this issue. Following an administrative remand by the Board in February 1991, the aforementioned hearing before the RO's Hearing Officer was held on April 11, 1991. At that time, the appellant submitted additional statements from the VA orthopedic specialist cited above in the preceding paragraph, and based on these statements, together with a review of all the evidence in the claims file, the Hearing Officer issued a decision in August 1991 which granted service connection for the right wrist disability. A rating decision was thereafter issued in August 1991 to implement the Hearing Officer's decision, at which time a 10 percent disability rating was assigned for the right wrist disability effective from August 1, 1989. In addition to the implementing action, service connection for additional symptoms manifested by degenerative arthritis of the right elbow joint was denied by the August 1991 rating decision. In response, the appellant's representative filed a notice of disagreement in October 1991 challenging the disability rating and effective date assigned for the right wrist disability as well as the denial of service connection for degenerative arthritis of the right elbow joint. In compliance with appellate procedures, the RO in turn issued a statement of the case in October 1991 as to these three issues. Thereafter, the appellant timely perfected an appeal as to these issues with the filing of a Form 1-9 substantive appeal in June 1992. At that time, he requested a hearing before a member of the Board to be held at the Board's headquarters in Washington, DC. The aforementioned Board hearing was held before the undersigned on November 25, 1992. The transcript of the hearing reflects that the appellant decided to withdraw his appeal of the issue of entitlement to an earlier effective date for the award of service connection for the right wrist disability at a prehearing conference. No subsequent testimony taken at the hearing reflects any attempt by either the appellant or his representative to revoke the prehearing conference withdrawal of the appeal of the earlier effective date issue. Thereafter, the Board issued a remand as to the other two issues in February 1994, at which time it specifically noted in the introduction that the appeal of the earlier effective date issue had been withdrawn at the November 1992 hearing. No additional statements from either the appellant or his representative addressing the effective date for the award of service connection for the right wrist disability were submitted until November 1994, when the RO received a letter from the appellant in which he claimed that his award of service connection for this disability should have been effective from 1957 and that a clear and unmistakable error was made at that time for failure to award service connection. In response, the RO sent him a letter in January 1995 informing him that his original claim denied in 1957 had been subsumed by an April 1958 Board decision and therefore was not subject to collateral attack under the theory of clear and unmistakable in accord with relevant caselaw in effect at that time. Thereafter, the appellant's November 1994 letter was submitted to the Board by his representative in May 1996, and later developed as a motion filed under 38 U.S.C.A. § 7111 alleging clear and unmistakable error in an April 1958 Board decision. As noted on the title page, this matter has been addressed by a separate decision of the Board in accord with the Court's Order of February 1999. The issue of whether a timely notice of disagreement was filed with regard to the earlier effective date issue was also developed for appellate review by the RO following receipt of the May 1996 copy of the appellant's November 1994 letter. At a hearing before a Hearing Officer in November 1996, the appellant testified that he did not intend to withdraw the issue of entitlement to an earlier effective date for the award of service connection for the right wrist disability at his hearing before the Board in November 1992. He stated that he was advised at that time by his representative to "table" the claim, and although he admitted that he agreed to withdraw it, he stated that he did not intend to "throw it out," but rather, to just set it aside to be addressed as a separate claim. See Transcript at p. 12. This issue is currently before the Board for readjudication as ordered by the Court in its February 1999 order. Specifically, the Court ordered the Board to consider application of 38 C.F.R. § 20.204(a) and (c) in connection with this appeal. Analysis Under the pertinent law and regulations, "[a]ppellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section." 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999); see also 38 C.F.R. § 20.201 (1999) (requirements for notices of disagreement). The Notice of Disagreement must be filed within one year from the date of mailing of the notice of the result of the initial review or determination. 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. § 20.302(a) (1999). Time limits within which a claimant is required to act to perfect a claim or challenge an adverse VA determination may be extended for good cause shown, if requested. 38 C.F.R. § 3.109(b) (1999). Thereafter, upon the timely receipt of a Notice of Disagreement, the RO must prepare and furnish to the claimant a Statement of the Case unless the benefit being sought is granted in full. 38 U.S.C.A. § 7105(d)(1) (West 1991). The claimant must then file a Substantive Appeal within 60 days from the date the Statement of the Case is mailed or within the remainder of the one-year time period from the date of mailing of notice of the initial determination being appealed, whichever ends later. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1999). The 60-day appeals period may be extended for good cause shown. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.303 (1999). VA regulations require that the Substantive Appeal consist of either a VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 20.202 (1999). The Substantive Appeal must either indicate that the appeal is being perfected as to all of the issues contained in the Statement of the Case and any prior Supplemental Statement of the Case or must specifically identify the issues appealed. The Substantive Appeal should also set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. 38 U.S.C.A. § 7105(d)(5) (West 1991); 38 C.F.R. § 20.202 (1999); see also Archbold v. Brown, 9 Vet. App. 124 (1996). The Board's Rules of Practice provide that a Notice of Disagreement and/or Substantive Appeal may be filed by the claimant personally, or by his or her representative if a proper Power of Attorney or declaration of representative, if applicable, is on record or accompanies such Notice of Disagreement or Substantive Appeal. 38 C.F.R. § 20.301(a) (1999). In the same light, the Board's Rules of Practice provide that a Notice of Disagreement or Substantive Appeal may be withdrawn by the appellant or his or her representative, except that a representative may not withdraw either a Notice of Disagreement or Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (1999). A Notice of Disagreement may be withdrawn in writing before a timely Substantive Appeal is filed. 38 C.F.R. § 20.204(a) (1999). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b) (1999). On the basis of the above, the Board finds that the issue of entitlement to an effective date earlier than August 1, 1989, for the award of service connection for a right wrist disability was timely appealed and perfected for appellate review, but was withdrawn at a prehearing conference at the November 1992 Board hearing. The Board further finds that the November 1994 letter from the appellant was not a timely notice of disagreement with respect to this claim. The Board will address each of these findings in turn as set forth below. The Board construes the appellant's intentions expressed at the November 1992 prehearing conference as valid withdrawal of his Substantive Appeal of June 1992 as to the issue of an earlier effective date for award of service connection for the right wrist disability. As detailed above in the Background, the hearing transcript of November 1992 clearly reflects his intentions to withdraw the appeal on this issue, and such intentions are further validated by his subsequent hearing testimony of November 1996. The Board is not persuaded by his November 1996 testimony that he did not "intend" to withdraw the appeal even though he stated at the same time that he "agreed" to withdraw it at the November 1992 Board hearing. The Board will not now engage in a pointless exercise in semantics in an attempt to figure out the appellant's true intentions with respect to this matter. What is shown by the appellate record is that a prehearing conference was held in connection with the November 1992 hearing at which time it was clearly expressed that the appellant desired to withdraw his appeal of the earlier effective date issue. The significant lapse in time between his withdrawal of the appeal expressed at the 1992 hearing and his subsequent attempt to revisit this issue when he submitted his November 1994 letter further serves to support the Board's interpretation of the facts in this case. Addressing the concerns of the Court's February 1999 order, the Board finds that the November 1992 hearing transcript constitutes a written withdrawal by the appellant of his June 1992 Substantive Appeal pursuant to 38 C.F.R. § 20.204(b) and (c). As it is undisputed that he was present at the November 1992 hearing and that he admitted in subsequent testimony that he agreed to withdraw the appeal at that time, the Board finds that the appellant personally withdrew the appeal of the earlier effective date issue at the November 1992 hearing. Hence, it is not shown by the evidence that the appeal was withdrawn by his representative without his express written authorization in violation of 38 C.F.R. § 20.204(c). As to the question of whether the hearing transcript constitutes a written communication under section 20.204(b), the Board observes that the Court has held that oral statements made at a hearing expressing disagreement with an adjudicative determination, if otherwise timely, and if later reduced to writing in a transcript, constitute "a written communication from a claimant or his or her representative" for purposes of establishing a valid Notice of Disagreement under 38 C.F.R. § 20.201. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The Board finds the Court's holding in Tomlin to be readily analogous to the facts in this case. Here, an oral statement made at the November 1992 prehearing conference evidencing the appellant's express withdrawal of the earlier effective date issue was reduced to writing in a transcript that has been made part of the appellate record. There being no other competent evidence to show otherwise, and for the reasons detailed above, the Board finds that the appellant's withdrawal of his June 1992 Substantive Appeal was in writing in accord with 38 C.F.R. § 20.204(b). The Court also ordered the Board to consider the applicability of section 20.204(a) of 38 C.F.R. (withdrawal of Notice of Disagreement), but the Board does not find this section applicable to the facts in this case because a Substantive Appeal was timely filed in June 1992 as to the earlier effective date issue. Having withdrawn his appeal of the earlier effective date issue at the November 1992 hearing, the appellant's November 1994 letter clearly was not timely as to establishing a valid Notice of Disagreement with regard to the August 1991 rating decision. 38 C.F.R. § 20.302(a) (1999). This letter was received more than three years after mailing of the notice of the August 1991 rating decision, and there is no other correspondence of record which could be construed as a valid Notice of Disagreement filed after the November 1992 withdrawal of the appeal on this issue. Moreover, there is no correspondence or statement that can be construed as a request for an extension for good cause. 38 C.F.R. § 20.303 (1999). Accordingly, since the appellant withdrew his June 1992 Substantive Appeal and did not thereafter reinstate his appeal by filing a timely Notice of Disagreement, his claim for entitlement to an effective date earlier than August 1, 1989, for the award of service connection for a right wrist disability must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law and not the evidence is dispositive, the appeal to the Board may be terminated because of the absence of legal merit or lack of entitlement under the law). ORDER The appellant's claim seeking entitlement to an effective date earlier than August 1, 1989, for the award of service connection for a right wrist disability is dismissed. GEORGE R. SENYK Member, Board of Veterans' Appeals