BVA9508301 DOCKET NO. 93 07 051 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left knee disorder, secondary to a service connected disorder. 2. Entitlement to an increased rating for left ankle periarthritis, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for right ankle periarthritis, currently evaluated as 10 percent disabling. 4. Entitlement to a temporary total rating for convalescence following a hospitalization from August 7 to August 17, 1990. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from December 1943 to April 1946. The matters before the Board arise from decisions by the aforementioned regional office (RO). The procedural history of this case with respect to the issues of service connection for a left knee disorder and increased ratings for ankle disorders will be set out in the 'Reasons and Bases' portion of the decision below. With respect to the issue of entitlement to a temporary total rating for a period of convalescence, in a statement received from the veteran in June 1991, he expressed his belief that he was entitled to "par. 30." benefits for surgery he underwent at a VA Medical Center in Dayton, Ohio. He did not specifically set forth the date of that surgery. By a rating decision dated July 1, 1991, the RO denied entitlement to benefits pursuant to 38 C.F.R. § 4.30 for a period of convalescence following an August 1990 hospitalization. The veteran was informed of this decision , the reasons for the denial, and of pertinent law and regulations with respect to this issue, in a statement of the case mailed to him under cover letter dated July 8, 1991. On a VA Form 1-9, received at the RO on June 8, 1992, the veteran expressed his disagreement with the RO's July 1991 decision. For reasons that are unclear, the RO did not immediately forward to the veteran a statement of the case addressing this issue. Presumably, this was not accomplished because it was believed the appropriate document had been provided the veteran the previous July. In any event, a "supplemental statement of the case" was forwarded to the veteran in January 1993, which referred the veteran to the previously provided statement of the case. As mentioned above, the earlier document included the appropriate law and regulations and rationale for the RO's decision to deny this claim. A statement from the veteran received in February 1993, may be construed as a substantive appeal, and the case was thereafter referred to the Board. The record reveals that in addition to the matter of entitlement to benefits under the provisions of 38 C.F.R. § 4.30, for an August 1990 hospitalization, the veteran may also be seeking these benefits for a period of hospitalization that occurred in July 1990. (See statement dated in June 1991.) This matter has not been developed on appeal and is not inextricably intertwined with the issues on appeal. Therefore, it is not properly before the Board at this time and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his left knee disorder was caused by his service connected left ankle disorder. He also contends that his ankle disabilities are more severely disabling than currently rated by the RO, and that he is entitled to benefits pursuant to 38 C.F.R. § 4.30 for a hospital admission in August 1990. 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 veteran did not submit a timely substantive appeal with respect to the issues of service connection for a left knee disorder, and increased ratings for ankle disorders. It is also the decision of the Board that entitlement to benefits under the provisions of 38 C.F.R. § 4.30 for a period of hospitalization in August 1990 is not warranted. FINDINGS OF FACT 1. The veteran did not file a substantive appeal within 60 days from the date of the statement of the case which concerned the issue of entitlement to increased ratings for the veteran's service connected ankle disorders, or within the remainder of the one year period from the date of mailing of the notification of the March 1991 rating decision which denied increased ratings for the veteran's service connected ankle disorders. 2. The veteran did not file a substantive appeal within 60 days from the date of the statement of the case which concerned the issue of service connection for a left knee disorder, or within the remainder of the one year period from the date of mailing of the notification of the April 1991 rating decision which denied service connection for a left knee disorder. 3. The veteran was not treated for a service connected disability when hospitalized from August 7 to August 17, 1990. CONCLUSIONS OF LAW 1. The veteran's substantive appeal was not timely with respect to the issues of service connection for a left knee disorder or increased ratings for ankle disorders. 38 U.S.C.A. § § 7105(d)(3), 7108 (West 1991); 38 C.F.R. § § 20.202, 20.302 (a), (b) (1994). 2. The criteria for a temporary total rating for convalescence based on a period of hospitalization from August 7 to August 17, 1990 have not been met. 38 C.F.R. § 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection and Increased Ratings By a rating decision dated March 19, 1991, the veteran's claim for an increased rating for his left and right ankle disorders was denied by the RO. In a letter sent to the veteran's address of record on March 27, 1991, the RO provided the veteran notice of this decision as well as notice of his appellate rights. In a letter received at the RO April 9, 1991, the veteran stated he disagreed with the RO's March 1991 decision. By a rating action dated April 23, 1991, the RO denied service connection for a left knee disorder secondary to service connected ankle disorder. Notice of both this decision and of the veteran's appellate rights was provided the veteran in a letter sent to his address of record on April 30, 1991. In a letter received at the RO on May 20, 1991, the veteran stated he disagreed with the RO's April 1991 decision. Under cover letter dated July 8, 1991, the RO sent to the veteran a statement of the case with respect to the issues of service connection for a left knee disorder and entitlement to increased ratings for his ankle disabilities. On June 8, 1992, a VA Form 1-9 (Appeal to Board of Veterans Appeals) was received at the RO. An appeal consists of a timely notice of disagreement in writing and, after a statement of the case has been furnished, a timely substantive appeal. A substantive appeal shall 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. 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. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § § 20.202, 20.302(a), (b). Under the circumstances described above, the veteran had until March 27, 1992 to file a timely substantive appeal with respect to the issue of increased ratings for his service connected ankle disabilities. He had until April 30, 1992, to file a timely substantive appeal with respect to the issue of service connection for a left knee disorder. The veteran's substantive appeal was received on June 8, 1992. This is clearly in excess 60 days from the date of mailing of the statement of the case, as well as more than one year from the date of notification of the pertinent rating actions. The Board notes that a veteran may request an extension of the 60 day period for filing a substantive appeal for good cause. The request for such an extension should be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § § 20.202, 20.303. Review of the claims file discloses no evidence that the veteran requested such an extension. If an appellant fails to complete an appeal within the required time, it is incumbent upon the Board to reject the application for review on appeal. This is not a matter within the Board's discretion; the timelines standards for filing appeals to the Board are prescribed by law. These requirements are stated specifically in 38 U.S.C.A. § 7105; and under the provisions of 38 U.S.C.A. § 7108, if there is a failure to meet these requirements, "An application for review on appeal shall not be entertained." Furthermore, the United States Court of Veterans Appeals, after acknowledging that the timelines standards are clear and unambiguous, has held that in the absence of a timely substantive appeal the proper action for the Board is to dismiss the claim. Roy v. Brown, 5 Vet.App. 554 (1993). In the case now before the Board, the veteran clearly did not timely file substantive appeals with respect to his claims for service connection for a left knee disorder secondary to a service connected disability or for entitlement to increased ratings for his service connected ankle disabilities. Therefore, the Board lacks jurisdiction with respect to these claims and they are dismissed. Temporary Total Rating for Convalescence A review of the record reveals that the veteran presented to a VA Medical Center on August 7, 1990, status post left tibial osteotomy with application of Ilazarov external fixator on July 2, 1990, with complaints of increased pain in the left calf. Nuclear venogram was obtained and was interpreted as being suspicious for deep vein thrombosis of the left calf. Accordingly, the veteran was admitted for treatment of deep vein thrombosis. He was provided bed rest and intravenous medication. This resulted in a decrease in the calf swelling and pain, and he was discharged on August 17, 1990. The diagnoses were deep vein thrombosis left calf; status post left high tibial osteotomy, in an Ilazarov external fixator; non insulin dependent diabetes mellitus and allergic to penicillin. A total rating will be granted following hospital discharge, effective from the date of hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge if the hospital treatment to the service connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. It is clear from this regulation, that in order to establish entitlement to benefits under the provisions of 38 C.F.R. § 4.30, the period of hospitalization for which the benefit is claimed, must have been for treatment of a service connected disability. The veteran is currently service connected for periarthritis of the left and right ankle. He is not service connected for left calf deep vein thrombosis, the disability for which he received treatment in August 1990. Accordingly, the veteran's period of hospitalization from August 7 to August 17, 1990 cannot serve as a basis for a grant of benefits under 38 C.F.R. § 4.30. ORDER The appeal with respect to the claims for service connection for a left knee disorder, secondary to a service connected disorder, and increased ratings for left and right ankle periarthritis is dismissed. A temporary total rating for convalescence following a period of hospitalization from August 7 to August 17, 1990 is denied. G.H. SHUFELT 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.