Citation Nr: 0003762 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 96-29 757 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant is the widow of the veteran, who served on active duty from April 1942 to February 1945; he died in January 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating action of April 1995, by the New York, New York, Regional Office (RO), which denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. REMAND Controlling statutes and regulations provide that a proper appeal consists of a timely notice of disagreement in writing and, after a statement of the case has been furnished, a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1999). A substantive appeal must be filed within 60 days from the date of mailing of the statement of the case or within the remainder of the one-year period from the date of mailing of the notification of the initial review and determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302(b) (1999). The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely Notice of Disagreement to a rating decision denying the benefit sought, and a timely Substantive Appeal. See 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet.App. 554 (1993). In this regard, the U.S. Court of Appeals for Veterans Claims (Court) had held that "jurisdiction does indeed matter and it is not 'harmless' when the VA during the claims adjudication process fails to address threshold issues." McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The Court has further indicated that "[a] jurisdictional matter may be raised at any stage" of a proceeding. AB v. Brown, 6 Vet.App. 35, 37 (1995) quoting Phillips v. General Servs. Admin., 924 F.2d 1577, 1579 (Fed.Cir. 1991). The Board finds that the issue of whether the appellant has perfected this issue for appellate review on the merits by filing a timely substantive appeal must be resolved in order to determine whether the Board has jurisdiction to address the merits of the claim. See Roy, supra. In this case, the RO denied the appellant's claim of entitlement to service connection for the cause of the veteran's death by a rating action of April 1995; the appellant was notified of this determination by letter dated May 1, 1995. The appellant submitted a notice of disagreement with that determination in August 1995, indicating that she had received notice of the denial. A statement of the case (SOC) was issued and mailed to the appellant by the New York RO on April 15, 1996. On the letter transmitting the SOC, the appellant was advised that she was required to file a substantive appeal within 60 days from the date of that letter or within the remainder, if any, of the one-year period from the date of the previous letter notifying her of the action she had appealed. A VA Form 9, Appeal to Board of Veterans' Appeals, was enclosed for the appellant's use if she wished to perfect the appeal. The appellant was further notified that, if the RO did not hear from her within the applicable period, her case would be closed. It appears that a substantive appeal was received, at the earliest, on July 9, 1996, when the RO received a Form 9, with continuation page attached, signed by the appellant. Thus, it does not appear that a substantive appeal was received within 60 days from the date that the agency of original jurisdiction mailed the SOC to the appellant (i.e., April 1996), or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed (i.e., May 1995). It therefore appears that a timely substantive appeal was not filed in this case. See 38 C.F.R. § 20.302(b). The claims file contains no indication that the RO advised the appellant that her appeal had not been perfected in a timely manner, nor was she afforded the opportunity to explain the time discrepancy. Because a failure to file a timely sunstantive appeal deprives the Board of jurisdiction over a case, we might be inclined to dismiss this appeal at this time. However, we are mindful that a determination as to the timeliness of an NOD or a substantive appeal is itself an appealable issue, as to which a claimant is entitled to file an NOD and as to which he or she must then receive an SOC. See 38 C.F.R. §§ 19.34, 20.101(c); see also 38 U.S.C. §§ 7104(a), 7105(b)(1). Moreover, certain procedural rights govern pursuit of VA benefits. A claimant has the right to file a claim and to receive a decision on that claim; to identify for appeal an issue or issues that he or she believes were wrongly decided and to express disagreement; to receive an SOC, perfect the appeal, and submit argument on behalf of a position; and to receive a hearing. Here, the Board has the jurisdiction -- indeed, we have the obligation -- to assess our jurisdiction, but this obligation cannot come at the expense of the procedural rights that belong to an applicant for VA benefits who has had no opportunity to present evidence or argument on that jurisdictional issue. Accordingly, because the RO has not yet rendered a decision on the question of whether the appellant has filed a timely substantive appeal regarding the denial of service connection for the cause of the veteran's death, a remand is required. See Marsh v. West, 11 Vet.App. 468 (1998). The Court has also held that, when the Board addresses in its decision a question that has not yet been addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether she has been given an adequate opportunity to actually submit such evidence and argument, and whether any SOC and/or SSOC provided the claimant fulfills the regulatory requirements. See 38 C.F.R. §§ 19.29, 19.31 (1999). If not, the matter must be remanded to the RO to avoid prejudice to the claimant. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). Under the circumstances described above, the Board is deferring adjudication of the issue certified for appellate review pending a REMAND of the case to the RO for the following action: The RO should determine whether a timely substantive appeal was received as to the appellant's claim of entitlement to service connection for the cause of the veteran's death. See 38 C.F.R. §§ 20.200, 20.302, 20.303 (1999). If it is determined that the appellant submitted a timely substantive appeal, the RO should return the case to the Board, after notifying the appellant that the Board may find that the appeal was not timely and that she could make arguments as to its timeliness. If the RO finds that the substantive appeal was not timely, then the RO should notify the appellant and furnish appellate rights. No action is required of the appellant until she is further informed. By this action, the Board intimates no opinion, legal or factual, as to the ultimate decision warranted in this case. The purpose of this REMAND is to accord the appellant due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ANDREW J. MULLEN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a final decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).