Citation Nr: 9915950 Decision Date: 06/10/99 Archive Date: 06/21/99 DOCKET NO. 98-07 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a heart disorder, a colon disorder, skin cancer, and gallbladder removal, all claimed as secondary to Agent Orange exposure. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a hip disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from March 1953 to March 1973. This appeal arises from a September 1996 rating decision of the Department of Veterans Affairs (VA), New Orleans, Louisiana, regional office (RO). REMAND In a claim dated August 1996, the veteran requested service connection for a heart disorder, a colon disorder, skin cancer, and gallbladder removal, all claimed as secondary to exposure to Agent Orange, and for service connection for back and hip disorders. In a September 1996 rating decision, the RO denied the veteran's claims. The veteran was informed of this determination by a letter dated September 21, 1996. Later in September 1996, the veteran filed a Notice of Disagreement (NOD) with respect to the issues denied in the September 1996 rating decision. In April 1997, the RO issued a Statement of the Case (SOC) on those issues and informed the veteran of action necessary to complete his appeal. In April 1998, the veteran filed a VA Form 9 (Appeal to Board of Veterans' Appeals) as a substantive appeal of his claims. Appellate review is initiated by an NOD and completed by a substantive appeal filed after an SOC has been furnished to the veteran. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1998). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information from either the veteran or his representative. 38 C.F.R. § 20.202 (1998). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the veteran, 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. § 20.303 (1998). In the absence of a properly perfected appeal, the Board is without jurisdiction to determine the merits of the case. See 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554 (1993). Based on the foregoing, the veteran had one year from September 21, 1996 or 60 days from April 14, 1997, whichever period ended later, to file an appeal. According to the evidence of record, the veteran filed no substantive appeal or written correspondence concerning the issues in question until April 1998. Consequently, it appears that the veteran's substantive appeal with respect to these issues was not timely filed. As the RO did not dispute the validity of the VA Form 9, and the jurisdictional issue has been raised sua sponte by the Board, the veteran should be accorded the opportunity to submit evidence or argument as to the timeliness of the VA Form 9. See Bernard v. Brown, 4 Vet. App. 384 (1993). Cf. Marsh v. West, 11 Vet. App. 468 (1998). Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the opinion of the Board that further development of the case is desirable. Accordingly, this case is REMANDED for the following action: 1. The veteran should be given an opportunity to submit any argument or evidence he desires concerning the issue of whether a timely substantive appeal been filed to the September 1996 rating decision which denied his claims for service connection for a heart disorder, a colon disorder, skin cancer, and gallbladder removal, all claimed as secondary to exposure to Agent Orange, and for service connection for back and hip disorders. 2. The RO should then adjudicate the issue of whether a timely substantive appeal has been filed to the September 1996 rating decision which denied service connection for a heart disorder, a colon disorder, skin cancer, and gallbladder removal, all claimed as secondary to exposure to Agent Orange, and for service connection for back and hip disorders. The veteran should be notified of the decision and of his appellate rights. If the decision is favorable to the veteran, the claims file should be returned to the Board for further appellate review. If the decision is unfavorable, appellate review is initiated by a NOD and completed by a substantive appeal filed after an SOC has been furnished to the veteran. The purpose of this REMAND is to obtain additional development and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. 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. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1998).