Citation Nr: 0001015 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 95-12 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Timeliness of an appeal from a denial of a permanent and total rating for pension purposes including entitlement to such rating on an extraschedular basis. 2. Entitlement to service connection for an acquired psychiatric disorder with gastrointestinal symptoms. 3. Entitlement to service connection for hypertension. 4. Whether new and material evidence has been presented or secured to reopen a claim of entitlement to service connection for hammertoe deformity of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant had active service from December 1974 to June 1977. This appeal is from November 1994 and August 1998 rating decisions of the Department of Veterans Affairs (VA) Montgomery, Alabama, regional office (RO), which denied the claims for service connection at issue in this appeal. In September 1996 the RO denied the appellant's claim of entitlement to a permanent and total rating for pension purposes including on an extraschedular basis. The Board in this decision considers the matter of the timeliness of an appeal from the September 1996 rating decision. Pursuant to an opinion of VA General Counsel, VAOPGCPREC 9-99, the Board notified the appellant of its intent to consider the timeliness of his appeal in a letter of November 24, 1999. In the introduction to its November 1997 remand, the Board referred to the RO several claims the appellant raised in his September 1997 hearing testimony: secondary service connection for a psychiatric disorder and entitlement to a total disability rating based on individual unemployability due to a service-connected disability. It appears no action has ensued on either matter. Additionally, a September 1997 letter from W. Hall, M.D., reasonably raises a claim for secondary service connection for hypertension and for peptic ulcer disease based on aggravation by a service-connected disability. These matters are referred to the RO for appropriate action. For reasons explained in the remand following this decision, the Board defers a final decision on the service connection claims at issue in this appeal. FINDINGS OF FACT 1. The RO disallowed the appellant's claim for a permanent and total rating for pension purposes (pension) in a September 1996 rating decision. 2. On September 19, 1996, the RO mailed the appellant a letter notifying him of the September 1996 disallowance of his pension claim and of his appellate rights and time limits on appealing the disallowance. 3. The RO issued a statement of the case on February 26, 1998. 4. On March 10, 1999, the RO received the appellant's VA Form 9 regarding the September 1996 disallowance of pension benefits. CONCLUSIONS OF LAW 1. Determination of the timeliness of an appeal is within the Board's jurisdiction. VAOPGCPREC 9-99. 2. The appellant filed an untimely substantive appeal from the September 1996 disallowance of VA pension benefits; his application for appellate review is not in conformity with law. 38 U.S.C.A. §§ 7105(d)(3); 7108 (West 1991); 38 C.F.R. § 20.302(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The appellant filed an informal claim for non-service- connected pension benefits in April 1996. In September 1996, the RO denied the claim, including in the decision disallowance on an extraschedular basis. The RO notified the appellant of the decision and of his appellate rights by letter of September 19, 1996. The notice of appellate rights included information on the time constraints for appeals to the Board of Veterans' Appeals. The appellant filed a notice of disagreement (NOD) with the RO in April 1997. The RO issued a statement of the case (SOC) addressing the pension claim on February 26, 1998. The cover letter of the SOC stated that the appellant must file his appeal within 60 days of the date of the SOC or request more time to do so within those 60 days. The letter also referred the appellant to the instructions with the VA Form 9, Appeal to Board of Veterans Appeals, included with the mailing of the SOC. On March 10, 1999, the RO received the appellant's VA Form 9, signed by him and dated October 5, 1998. In a memorandum of December 1999, the appellant's representative argued that the Board should remand the appellant's appeal to the RO to permit him to present a properly completed application. The representative cited 38 C.F.R. § 3.109, which provides for notification of a claimant for VA benefits of evidence necessary to complete an application and of a one-year time limit from the date of the notification to produce the evidence. The representative also cited 38 C.F.R. § 20.202, which provides for a liberal interpretation of correspondence in determining whether correspondence raises issues on appeal. II. Legal Analysis As a matter of right, when the RO denied the appellant's claim for VA pension benefits in September 1996, he was entitled to appeal the decision to the Board of Veterans' Appeals. 38 U.S.C.A. § 7104(a) (West Supp. 1999). The statutes governing an appeal to the Board are set forth in Chapter 71, title 38, United States Code. The law provides, "An application for review on appeal shall not be entertained unless it is in conformity with this chapter." 38 U.S.C.A. § 7108 (West 1991). "An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal." 38 C.F.R. § 20.200 (1999). The appellant filed a NOD within one year of the date of the determination from which he sought to appeal; the NOD was timely and it is not at issue in this decision. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.302(a) (1999). Statute provides that a substantive appeal must be filed within 60 days from the date the SOC is mailed to the appellant and his representative, if he has one. 38 U.S.C.A. § 7105(d)(3) (West 1991). Regulation provides that the appeal must be filed within 60 days from the date that the agency of original jurisdiction (the RO in this case) mails the SOC to the appellant, or within the remainder of the one year period from the date of the mailing of the letter notifying the appellant of the determination being appealed. 38 C.F.R. § 20.302(b) (1999). The date of mailing of the SOC is presumed to be the date of the statement of the case. Id. The RO furnished the appellant with a SOC addressing his pension claim on February 26, 1998, more than a year after the September 19, 1996, notification of the disallowance of his claim. Consequently, the appellant was required to file his substantive appeal within 60 days of February 26, 1998. The RO received the substantive appeal in March 1999, approximately 13 months after the date of the SOC. The discrepancy between the October 1998 date of the appellant's signature on the VA Form 9 and the date of receipt by the RO is immaterial in this case, as the date of signature is itself substantially beyond the time permitted for perfecting the appeal. There is no correspondence of record showing a request for an extension of time to file the substantive appeal. Consequently, no question of good cause for untimely filing of a substantive appeal is for consideration. See 38 C.F.R. § 20.303 (1999). Finally, the argument by the appellant's representative is completely inapposite to the fact of this case. There is no question at issue here about either the completeness of the appellant's application for pension benefits, see 38 C.F.R. § 3.109 (1999), or of whether the statements made on the VA Form 9 or any other correspondence may or should be interpreted as a substantive appeal. See 38 C.F.R. § 20.202 (1999). The matter at issue is whether the appellant filed his appeal in time. It turns purely on the applicable law and the calendar. The appellant has not filed a timely substantive appeal from the September 1999 rating decision that disallowed his claim of entitlement to a permanent and total rating for pension purposes including on an extraschedular basis. Where there is no timely substantive appeal, the appeal is not in conformity with chapter 71, title 38, United States Code, and the Board may not entertain the application for appeal as a matter of law. 38 U.S.C.A. § 7108 (West 1991). Consequently the appeal must be dismissed. ORDER Whereas the purported appeal from the September 1996 denial of a permanent and total rating for pension purposes including entitlement to such rating on an extraschedular basis is untimely, the appeal is dismissed. REMAND The Board's November 1997 remand instructed that the RO request the Tuscaloosa VA Medical Center (VAMC) to provide any available medical records from June 1977 to July 1982. An undated memorandum indicates the RO made the request, apparently on March 10, 1998. There is no response of record from Tuscaloosa VAMC. When the Board instructs certain action in a remand, it creates a right in the appellant to have that action performed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board's instruction was literally to request the records, a failure to obtain any response violates the obvious intent of the remand. The RO must obtain a response to its request for records from the VAMC to consider the remand instruction discharged. A response that no such records can be produced will satisfy the instruction, unless the response includes further information indicating that such records may be available elsewhere. Additionally, the appellant has stated he received psychiatric treatment at Tuscaloosa VAMC, which is confirmed by one outpatient report of record. He has apparently been treated there for several years. All records pertaining to his outpatient psychiatric care should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request Tuscaloosa VAMC to provide all available inpatient or outpatient records from June 1977 to July 1982, or a memorandum from the responsible custodian of record noting the unavailability of such records, and all available records of psychiatric treatment, including prescription of medication, up to the present. If the responsible custodian of records indicates that no records are available for the relevant time at that facility, but that they may be available elsewhere, follow up appropriately with any other indicated record custodian. Associate any information obtained with the claims folder. 2. Readjudicate any of the service connection claims at issue in this appeal for which pertinent records are obtained. If the acquisition of addition evidence necessitates readjudication of any issue, and the claim remains denied, provide the appellant and his representative a supplemental statement of the case and afford them an appropriate amount of time to respond. The appellant has the right to submit additional evidence and argument on the matter or matters that 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. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals