Citation Nr: 0001153 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-19 425A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether the appellant has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy. 2. Whether the appellant has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for osteoarthritis of both knees. 3. Whether the appellant has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for hearing loss. 4. Whether the appellant has submitted an adequate substantive appeal with respect to the issue of entitlement to service connection for tinnitus. 5. Whether the appellant has submitted an adequate substantive appeal with respect to the issue of entitlement to a permanent and total disability rating for nonservice- connected pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The appellant had active military service from August 1954 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the above claims. In June 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). FINDINGS OF FACT 1. The appellant's VA Form 9 received in December 1998 did not discuss any errors of fact or law regarding the claims of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to nonservice-connected pension benefits. 2. The written argument presented by the appellant's representative in April 1999 did not discuss any errors of fact or law regarding these claims. 3. The appellant did not file an adequate substantive appeal with respect to these claims. CONCLUSION OF LAW An adequate substantive appeal of the claims of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to a permanent and total disability rating for nonservice- connected pension purposes was not filed, and the Board lacks jurisdiction to consider these issues. 38 U.S.C.A. §§ 7104(a), 7105(a), 7105(d)(3), and 7108 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.200, 20.202, and 20.203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law provides that ". . . questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals." 38 U.S.C.A. § 7105(d)(3) (West 1991). The initial question that must be resolved is whether the Board has jurisdiction to consider the issues of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to nonservice-connected pension benefits. In September 1999, the appellant and his representative were given notice that the Board was going to consider whether the substantive appeal was adequate with respect to these claims and given an opportunity to request a hearing or present argument related to this issue. See 38 C.F.R. § 20.203 (1999). Although the Board has the obligation to assess its jurisdiction, it must consider whether doing so in the first instance is prejudicial to the appellant. Cf. Marsh v. West, 11 Vet. App. 468 (1998); see also Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the Board concludes that its consideration of this issue does not violate the appellant's procedural rights. The September 1999 letter to the appellant provided him notice of the regulations pertinent to the issue of adequacy of substantive appeals, as well as notice of the Board's intent to consider this issue. He was also advised of the Board's intent to consider this issue at his June 1999 hearing before the Board. The appellant was given 60 days to submit argument on this issue and provided an opportunity to request a hearing on this issue. He did not request a hearing, nor did he submit any argument concerning the adequacy of his substantive appeal. As noted by the United States Court of Appeals for the Federal Circuit, "it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted). In order to perfect an appeal of an adverse determination, governing statutory and regulatory provisions require the submission, following an adverse rating action and adequate notice thereof, of a notice of disagreement and, following issuance of a statement or supplemental statement of the case, an adequate substantive or formal appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200 and 20.202 (1999). A July 1998 rating decision, inter alia, denied service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and denied entitlement to nonservice-connected pension benefits. The appellant was advised of that decision on August 11, 1998, and he filed a notice of disagreement in August 1998. After a notice of disagreement is filed, the agency of original jurisdiction is to take such review action as is appropriate and, if the matter is not resolved to the claimant's satisfaction, issue a statement of the case (SOC). 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. §§ 19.26 and 19.29 (1999). A SOC was issued in September 1998, which included these five issues. Under pertinent statutory provisions, a claimant must file a substantive appeal to perfect an appeal. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999); see Roy v. Brown, 5 Vet. App. 554 (1993). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 20.202 (1999). The substantive appeal should 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)(3) (West 1991); 38 C.F.R. § 20.202 (1999). To the extent feasible, the argument should be related to specific items in the SOC. Id. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Id. The appeal must be filed within a year of notice of the adverse rating action, or within 60 days of the issuance of the SOC, whichever is longer. 38 U.S.C.A. § 7105(b)(1), (d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1999). Since the SOC was issued shortly after the July 1998 rating decision, a substantive appeal had to be filed within one year of notification of that decision. In this case, the appellant submitted a VA Form 9 on December 8, 1998, which did not contain any specific contentions regarding his claims. There were no identified errors of fact or law cited by the appellant with respect to those issues. He merely stated that he would provide argument at a hearing before a Member of the Board. The only other correspondence received within the appeal period was a written statement by the appellant's representative dated April 27, 1999. This statement did list the above five issues as on appeal. However, the representative also indicated that the contentions of the appellant and the representative would be expressed at a hearing before the Board. Again, no specific contentions were made regarding these claims, and there were no identified errors of fact or law cited by the representative with respect to these issues. Of record is the appellant's testimony on these issue given on June 28, 1999. In general, a claimant's testimony before the RO can be accepted in lieu of a VA Form 9 once it is reduced to writing when the hearing is transcribed. Cf. Tomlin v. Brown, 5 Vet. App. 355 (1993) (hearing testimony before the RO, when reduced to writing, can constitute a notice of disagreement). However, in this case, the appellant's testimony cannot constitute a timely and adequate substantive appeal. VA regulations provide that a notice of disagreement and substantive appeal "must be filed with the [VA] office from which the claimant received notice of the determination being appealed . . ." 38 C.F.R. § 20.300 (1999). Hearing testimony before the Board cannot be accepted as a substantive appeal, since this testimony is not being presented to RO personnel. See Beyrle v. Brown, 9 Vet. App. 24, 28 (1996) (hearing testimony before the Board, even though given within the one-year NOD filing period, cannot constitute a valid NOD, because it was taken before the Board and not the RO and it did not serve to trigger or initiate appellate review). An application for review on appeal shall not be entertained unless it is in conformity with chapter 71, Title 38, United States Code. 38 U.S.C.A. § 7108 (West 1991). There has not been an adequate appeal of these issues, so any purported appeal is not in conformity with the law. Therefore, the appeal was not perfected, and the Board is without jurisdiction to adjudicate these claims. 38 U.S.C.A. §§ 7104(a), 7105(a), 7105(d)(3), and 7108 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.101(a), 20.200, and 20.202 (1999); YT v. Brown, 9 Vet. App. 195 (1996). ORDER The appellant having failed to perfect an appeal through filing of an adequate substantive appeal, the claims of entitlement to service connection for a back condition, including osteoarthritis and residuals of laminectomy, osteoarthritis of both knees, hearing loss, and tinnitus, and entitlement to a permanent and total disability rating for nonservice-connected pension purposes are dismissed. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals