Citation Nr: 0001951 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 94-11 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Timeliness of appeal. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a left foot injury. REPRESENTATION Appellant represented by: Sean Kendall, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran had active service from January 1955 to August 1956. A historical review of the record shows that in July 1991, the Board of Veterans' Appeals (Board) denied entitlement to service connection for residuals of a left foot injury. A December 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois denied entitlement to service connection for the residuals of a left foot injury on the basis that no new and material evidence has been submitted to reopen the claim. The veteran was notified of the determination by letter dated December 11, 1991. The RO received a notice of disagreement (NOD) on June 30, 1992 and issued a statement of the case on July 21, 1992, which was mailed to the veteran with a letter dated July 23, 1992. In July 1992, the veteran submitted a claim for non- service-connected pension benefits. He was granted pension benefits in September 1992. On December 22, 1992, the veteran submitted a VA form 1-9 concerning "possible erroneous action granted improved pension". A statement was received from the veteran in October 1993, which stated he was applying for service-connected disability for a left foot condition and bone disease of the left foot. The RO treated the October 1993 statement as a substantive appeal from the December 1991 rating action and issued a supplemental statement of the case (SSOC) in June 1995 following a personal hearing. In a July 1996 decision the Board noted not having jurisdiction to consider the appeal as to whether new and material evidence had been submitted to reopen a claim for entitlement to service connection for residuals of a left foot injury because a timely appeal was not filed. The veteran was determined to be statutorily barred from appealing the RO decision and his appeal was dismissed. 38 U.S.C.A. § 7105(d)(3) (West 1991 & Supp. 1995); 38 C.F.R. § 20.302(b) (1995). The Board also noted that a statement from the veteran in October 1993, which had been incorrectly recognized by the RO as a timely appeal, might alternatively be construed as an attempt to reopen. In the July 1996 decision, the Board referred the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a left foot injury stemming from the claim filed in October 1993 to the RO for appropriation consideration. The case was appealed to the United States Court of Appeals for Veterans Claims (the Court), which, on the basis of a Joint Motion to Remand, vacated the Board decision. See [citation redacted] In the Joint Motion, it was noted that the issue of timeliness of the appeal [the sole issue on which the Board decision had been predicated] had never been addressed by the RO, and thus the question was raised whether the Board had authority in the absence of an administrative appeal, to adjudicate the issue of timeliness in a substantive appeal if the RO had not made an adverse determination in that regard. See Swan v. Brown, 9 Vet. App. 450 (1996). It was further noted that pursuant to Bernard v. Brown, 4 Vet. App. 384 (1993), whether such action by the Board could be taken absent RO consideration thereon was without prejudice to the veteran had not been addressed by the Board, and thus could not be ruled on by the Court. See Curry v. Brown, 7 Vet. App. 59, 66 (1994). It was further noted that on the issue of the identified potential October 1993 [or presumably any other] attempt to reopen, in accordance with Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992), the veteran should be fully informed as, and given the opportunity to submit additional evidence and argument and be given appropriate assistance therein. The VARO currently of jurisdiction is Phoenix, Arizona. In June 1998 the Board remanded this case to the RO for further development. The case is once more before the Board for appellate consideration. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. The Board notes that in June 1998, the Board remanded this case to the RO for full and adequate adjudication of the issue of whether a timely substantive appeal was filed from the December 1991 rating action in which the RO declined to reopen the claim of service connection for residuals of a left foot injury based upon the lack of submission of new and material evidence. Furthermore, it was requested that the veteran be duly notified of the determination and if unfavorable, of his right to file a notice of disagreement in this regard, as well as fully apprised as to his responsibilities and opportunities with regard to evidence, etc., as well as all pertinent due process requirements. Moreover, if the benefit sought on appeal, for which a timely notice of disagreement had been filed, were not granted to the veteran's satisfaction, the RO was instructed to issue a supplemental statement of case. A reasonable period of time for a response was to be afforded. Thereafter, the case was to be returned to the Board for final appellate review, if otherwise in order. In July 1998, the RO determined that the veteran failed to file a timely appeal from the December 1991 rating decision in which the RO declined to reopen his claim of entitlement to service connection for residuals of a left foot injury based on the lack of submission of new and material evidence. The veteran was notified of the July 1998 rating decision and filed a timely notice of disagreement in September 1998. However, the RO failed to furnish the veteran and his representative with a statement of the case on the timeliness issue with opportunity to perfect his appeal by filing a timely substantive appeal. (The Board recognizes that a statement of the case has never been prepared on the timeliness issue). Where there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case, and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Godfrey v. Brown, 7 Vet. App. 398 (1995). The Board notes that in July 1998, the Board also instructed the RO of the necessity of furnishing the veteran an appropriate SOC. See Stegall v. West, 11 Vet. App. 268 (1998), the Court held that where remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Also, the Board recognizes that the RO has failed to formally adjudicate the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a left foot injury stemming from the claim filed in October 1993. The subsequent raising of the issue by the veteran's representative may be construed as an NOD to the RO's failure to adjudicate such claim and therefore the RO should furnish the veteran and his representative a SOC on such issue. See Isenbart v. Brown, 7 Vet. App. 537 (1995). To ensure that VA has met its duty to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following action: The RO should issue a statement of the case in response to the veteran's notices of disagreement regarding the issues of (1) whether he filed a timely substantive appeal from the December 1991 rating decision in which the RO declined to reopen his claim of entitlement to service connection for residuals of a left foot injury based on the lack of submission of new and material evidence and (2) whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a left foot injury stemming from the claim filed in October 1993. Also, the RO should inform the veteran of the need to submit a substantive appeal if he wishes appellate review. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The purpose of this remand is to afford the veteran due process of law. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).