BVA9505820 DOCKET NO. 93-11 817 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable disability evaluation for post- operative residuals of arthrotomy of the right knee. REPRESENTATION Appellant represented by: Max D. Leifer, Attorney ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1962 to August 1965. For reasons stated below, the Board is of the opinion that the veteran's appeal from the January 1991 rating action which denied an increased evaluation for his right knee disability must be dismissed. However, subsequent to the end of the period in which he could have perfected that appeal, the veteran testified at a hearing on appeal in March 1992 and additional evidence was added to the record. By decision of the hearing officer in November 1992, the prior rating was confirmed. The veteran was advised of this in a supplemental statement of the case. Thereafter, in November 1992, he expressed disagreement with the action taken. Accordingly, it appears that he has initiated a new claim based on the November 1992 rating action. This matter is not inextricably intertwined with the earlier claim and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the regional office (RO) committed error in denying his claim of entitlement to a compensable evaluation for his service-connected right knee disability. He asserts that he has experienced pain in his right knee since the in-service injury to this joint in 1964. He also maintains that the post-service injury he sustained to his right knee in 1988 further damaged his already disabled right knee. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim of entitlement to a compensable disability evaluation for post-operative residuals of arthrotomy of the right knee is dismissed. FINDING OF FACT The veteran did not file a substantive appeal within 60 days of the August 13, 1991 statement of the case or within one year from the RO's notification letter of January 17, 1991. CONCLUSION OF LAW The veteran did not file a timely substantive appeal following the August 1991 statement of the case with respect to the issue of entitlement to a compensable disability evaluation for post- operative residuals of arthrotomy of the right knee. 38 U.S.C.A. §§ 7105(a), (d) (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION On January 17, 1991, the RO mailed to the veteran notification of the denial of his claim of entitlement to a compensable disability evaluation for post-operative residuals of arthrotomy of his right knee. On June 5, 1991, the RO received the veteran's notice of disagreement with this denial. Subsequently, on August 13, 1991, the RO mailed to the veteran a statement of the case regarding the issue of entitlement to a compensable evaluation for a service-connected right knee disability. Every appeal must be initiated by a notice of disagreement and completed by a substantive appeal. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1994). See also Roy v. Brown, 5 Vet.App. 554, 555 (1993) (the Board properly dismissed a claim in which the appellant failed to file a timely and valid substantive appeal). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1994). The regulations provide that 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 of 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. 38 C.F.R. § 20.302(b) (1994). In the present case, the veteran was required to file a substantive appeal with regard to the issue of entitlement to a compensable evaluation for his service-connected right knee disability within 60 days of August 13, 1991, the date that the statement of the case was mailed to him, or, in any event, by January 17, 1992, one year from the date of notification of the appealed rating decision. A complete and thorough review of the claims file shows that the veteran did not submitted a substantive appeal by January 17, 1992. According to the applicable law and regulations, a substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the statement of the case and any prior supplemental statements of the case. The Board of Veterans' Appeals (Board) will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. Proper completion and filing of a substantive appeal are the last actions the appellant needs to take to perfect an appeal. 38 U.S.C.A. § 7105(d)(3) and (5) (West 1991); 38 C.F.R. § 20.202 (1994). In the present case, the veteran submitted three additional statements after the statement of the case was mailed on August 13, 1991, but before January 17, 1992, the end of the one-year period following notification of the denial of the claim. Two of these statements were dated in August 1991, and one was dated in September 1991. Significantly, however, in these letters, the veteran simply requested postponements of the personal hearing he had previously requested. Nowhere in any of these letters did the veteran allege specific error of fact or law in the RO's prior determination. The earliest document which can be considered a substantive appeal is the transcript of the veteran's testimony at the personal hearing. Significantly, however, this hearing was not conducted until March 20, 1992, which was after the January 17, 1992 deadline for receipt of a valid substantive appeal. The veteran's testimony and the additional evidence added to the record thereafter may support a subsequent claim. However, as noted above, this claim would not yet be ripe for appellate consideration. Clearly, the veteran did not file a timely and valid substantive appeal. Therefore, the Board lacks appellate jurisdiction over the issue of entitlement to a compensable evaluation for a right knee disability. ORDER The issue of entitlement to a compensable evaluation for post- operative residuals of arthrotomy of the right knee is dismissed. V. L. JORDAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.