Citation Nr: 1045640 Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 04-07 043A ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been received sufficient to reopen the Veteran's claim of entitlement to service connection for "tailbone" fracture residuals.
2. Entitlement to a compensable disability evaluation for the Veteran's epidermophytosis of the feet for the period prior to May 19, 2009.
3. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's epidermophytosis of the feet for the period beginning on May 19, 2009.
4. Entitlement to an effective date prior to March 25, 2005, for the grant of service connection for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Juliano, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1967 to January 1970.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in St. Petersburg, Florida that granted the Veteran's claim for service connection for PTSD, effective March 25, 2005.
The Board notes that recently, in June 2010, the Board remanded the Veteran's claim for a total disability rating for compensation based on individual unemployability (TDIU) for further development. Shortly thereafter, a July 2010 RO decision granted the Veteran's claim for TDIU, which constituted a grant of the full benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, the issue of entitlement to TDIU is no longer on appeal before the Board.
The issue of entitlement to an effective date prior to March 25, 2005 for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A June 2010 Board decision denied the Veteran's application to reopen his claim for service connection for "tailbone" fracture residuals; the Veteran has not filed a motion for reconsideration or a claim to revise that decision based on clear and unmistakable error (CUE).
2. A June 2010 Board decision denied entitlement to a compensable disability evaluation for the Veteran's epidermophytosis of the feet for the period prior to May 19, 2009; the Veteran has not filed a motion for reconsideration or a claim to revise that decision based on clear and unmistakable error (CUE).
3. A June 2010 Board decision denied entitlement to a disability evaluation in excess of 10 percent for the Veteran's epidermophytosis of the feet for the period beginning on May 19, 2009; the Veteran has not filed a motion for reconsideration or a claim to revise that decision based on clear and unmistakable error (CUE).
CONCLUSIONS OF LAW
1. There is no motion for reconsideration, CUE claim, or any appeal alleging specific errors of fact or law with regard to any rating decision before the Board involving the issue of whether new and material evidence has been submitted sufficient to reopen the Veteran's claim of entitlement to service connection for "tailbone" fracture residuals; therefore, the claim is dismissed.
2. There is no motion for reconsideration, CUE claim, or any appeal alleging specific errors of fact or law with regard to any rating decision before the Board involving entitlement to a compensable disability evaluation for epidermophytosis of the feet for the period prior to May 19, 2009; therefore, the claim is dismissed.
3. There is no motion for reconsideration, CUE claim, or any appeal alleging specific errors of fact or law with regard to any rating decision before the Board involving entitlement to a disability evaluation in excess of 10 percent for epidermophytosis of the feet for the period beginning on May 19, 2009; therefore, the claim is dismissed.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.
By way of background, in January 2008 and September 2008, the Board remanded the issues of whether new and material evidence had been received sufficient to reopen the Veteran's claim for service connection for "tailbone" fracture residuals, and the issue of entitlement to a compensable evaluation for epidermophytosis of the feet, to the RO for further development. Subsequently, a June 2009 RO decision granted an increased evaluation for the Veteran's epidermophytosis of the feet of 10 percent disabling, effective May 19, 2009. After additional development was completed and these matters were returned to the Board, in December 2009, the Board again remanded these matters for further development. After such additional development was completed and these matters were returned to the Board again for further review, a June 2010 Board decision denied the Veteran's application to reopen his claim for service connection for "tailbone" fracture residuals, and it denied increased evaluations for the Veteran's epidermophytosis of the feet.
The Board notes that the Veteran has not moved for reconsideration of the June 2010 Board decision under 38 U.S.C.A. § 7103, and he has not filed a claim requesting revision of the Board decision on grounds of CUE under 38 U.S.C.A. § 7111. Rather, it appears that the June 2010 Board decision denying the claims may not have been associated with the claims file at the time the RO issued its July 2010 Supplemental Statement of the Case (SSOC), based on which these issues were again certified for appeal and returned to the Board. The Board also notes that no new application to reopen the Veteran's claim for service connection for "tailbone" fracture residuals is of record, nor has any new claim for an increased evaluation for service- connected epidermophytosis of the feet been filed (albeit even if the Veteran filed such claims, a substantive Form 9 appeal would be necessary to confer jurisdiction to the Board, see 38 U.S.C.A. § 7105(d)).
Therefore, in light of the above, the Board finds that there remains no case or controversy over which the Board has jurisdiction, and these matters should therefore be dismissed.
ORDER
The appeal of the issue of whether new and material evidence has been received sufficient to reopen the Veteran's claim of entitlement to service connection for "tailbone" fracture residuals is dismissed.
The appeal of the issue of entitlement to a compensable disability evaluation for the Veteran's epidermophytosis of the feet for the period prior to May 19, 2009 is dismissed.
The appeal of the issue entitlement to a disability evaluation in excess of 10 percent for the Veteran's epidermophytosis of the feet for the period beginning on May 19, 2009 is dismissed.
REMAND
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Citation Nr: 1045640 Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 04-07 043A ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been received sufficient to reopen the Veteran's claim of entitlement to service connection for "tailbone" fracture residuals.
2. Entitlement to a compensable disability evaluation for the Veteran's epidermophytosis of the feet for the period prior to May 19, 2009.
3. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's epidermophytosis of the feet for the period beginning on May 19, 2009.
4. Entitlement to an effective date prior to March 25, 2005, for the grant of service connection for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Juliano, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1967 to January 1970.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in St. Petersburg, Florida that granted the Veteran's claim for service connection for PTSD, effective March 25, 2005.
The Board notes that recently, in June 2010, the Board remanded the Veteran's claim for a total disability rating for compensation based on individual unemployability (TDIU) for further development. Shortly thereafter, a July 2010 RO decision granted the Veteran's claim for TDIU, which constituted a grant of the full benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, the issue of entitlement to TDIU is no longer on appeal before the Board.
The issue of entitlement to an effective date prior to March 25, 2005 for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A June 2010 Board decision denied the Veteran's application to reopen his claim for service connection for "tailbone" fracture residuals; the Veteran has not filed a motion for reconsideration or a claim to revise that decision based on clear and unmistakable error (CUE).
2. A June 2010 Board decision denied entitlement to a compensable disability evaluation for the Veteran's epidermophytosis of the feet for the period prior to May 19, 2009; the Veteran has not filed a motion for reconsideration or a claim to revise that decision based on clear and unmistakable error (CUE).
3. A June 2010 Board decision denied entitlement to a disability evaluation in excess of 10 percent for the Veteran's epidermophytosis of the feet for the period beginning on May 19, 2009; the Veteran has not filed a motion for reconsideration or a claim to revise that decision based on clear and unmistakable error (CUE).
CONCLUSIONS OF LAW
1. There is no motion for reconsideration, CUE claim, or any appeal alleging specific errors of fact or law with regard to any rating decision before the Board involving the issue of whether new and material evidence has been submitted sufficient to reopen the Veteran's claim of entitlement to service connection for "tailbone" fracture residuals; therefore, the claim is dismissed.
2. There is no motion for reconsideration, CUE claim, or any appeal alleging specific errors of fact or law with regard to any rating decision before the Board involving entitlement to a compensable disability evaluation for epidermophytosis of the feet for the period prior to May 19, 2009; therefore, the claim is dismissed.
3. There is no motion for reconsideration, CUE claim, or any appeal alleging specific errors of fact or law with regard to any rating decision before the Board involving entitlement to a disability evaluation in excess of 10 percent for epidermophytosis of the feet for the period beginning on May 19, 2009; therefore, the claim is dismissed.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.
By way of background, in January 2008 and September 2008, the Board remanded the issues of whether new and material evidence had been received sufficient to reopen the Veteran's claim for service connection for "tailbone" fracture residuals, and the issue of entitlement to a compensable evaluation for epidermophytosis of the feet, to the RO for further development. Subsequently, a June 2009 RO decision granted an increased evaluation for the Veteran's epidermophytosis of the feet of 10 percent disabling, effective May 19, 2009. After additional development was completed and these matters were returned to the Board, in December 2009, the Board again remanded these matters for further development. After such additional development was completed and these matters were returned to the Board again for further review, a June 2010 Board decision denied the Veteran's application to reopen his claim for service connection for "tailbone" fracture residuals, and it denied increased evaluations for the Veteran's epidermophytosis of the feet.
The Board notes that the Veteran has not moved for reconsideration of the June 2010 Board decision under 38 U.S.C.A. § 7103, and he has not filed a claim requesting revision of the Board decision on grounds of CUE under 38 U.S.C.A. § 7111. Rather, it appears that the June 2010 Board decision denying the claims may not have been associated with the claims file at the time the RO issued its July 2010 Supplemental Statement of the Case (SSOC), based on which these issues were again certified for appeal and returned to the Board. The Board also notes that no new application to reopen the Veteran's claim for service connection for "tailbone" fracture residuals is of record, nor has any new claim for an increased evaluation for service- connected epidermophytosis of the feet been filed (albeit even if the Veteran filed such claims, a substantive Form 9 appeal would be necessary to confer jurisdiction to the Board, see 38 U.S.C.A. § 7105(d)).
Therefore, in light of the above, the Board finds that there remains no case or controversy over which the Board has jurisdiction, and these matters should therefore be dismissed.
ORDER
The appeal of the issue of whether new and material evidence has been received sufficient to reopen the Veteran's claim of entitlement to service connection for "tailbone" fracture residuals is dismissed.
The appeal of the issue of entitlement to a compensable disability evaluation for the Veteran's epidermophytosis of the feet for the period prior to May 19, 2009 is dismissed.
The appeal of the issue entitlement to a disability evaluation in excess of 10 percent for the Veteran's epidermophytosis of the feet for the period beginning on May 19, 2009 is dismissed.
REMAND
An April 2005 RO decision granted service connection for PTSD and assigned an evaluation of 50 percent disabling, effective March 25, 2005. In May 2005, the Veteran filed a notice of disagreement requesting an effective date prior to March 25, 2005. Specifically, the Veteran requested that an effective date of October 23, 2002 be assigned (which is the date of a prior RO decision that denied service connection for PTSD). See also Deferred Rating Decision, February 2008. Therefore, the Veteran's claim for an earlier effective date for service- connected PTSD must now be remanded to allow the RO to provide the Veteran with an appropriate SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92). This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130.
Accordingly, the case is REMANDED for the following action:
Provide the Veteran with an SOC addressing the issue of entitlement to an effective date prior to March 25, 2005 for the grant of service connection for PTSD. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs