01-06 815
01-06 815
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served 1943–1946 and 1947–1966; multiple claims and appeals spanning ~17 years before the Board.
- Multiple RO rating decisions (most recently December 2010) and Board remands; two appeal streams were merged into one docket (01-06815).
- In April 2017 VA issued a Statement of the Case (SOC) addressing Issues 1–2; VA has not received a timely substantive appeal (Form 9 or equivalent).
- The Veteran sought service connection for numerous conditions (right shoulder, right elbow, knees, back, hips, eyes, scars, hearing, hemorrhoids, hepatitis, etc.).
- The Board dismissed Issues 1–2 for lack of jurisdiction (no perfected appeal) and REMANDED Issues 3–17 to the AOJ for further development because a prior joint motion for remand (JMR) required the RO to adjudicate certain newly raised claims before the Board could finally decide related secondary claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Service connection — right shoulder (and reopening right elbow) | Veteran continued pursuit of benefits; seeks appellate review of December 2010 denials | VA: No timely substantive appeal (no VA Form 9 or equivalent received after April 2017 SOC) | Dismissed for lack of jurisdiction because Veteran did not perfect a timely substantive appeal |
| 2. Whether new and material evidence reopens right elbow claim | Veteran contends new evidence warrants reopening | VA: Claim remained denied and no perfected appeal filed to Board | Dismissed for lack of jurisdiction (same reasoning) |
| 3. Multiple remaining claims (back, bilateral hips, knees, hemorrhoids, hepatitis, eyes, scars, hearing, etc.) | Veteran raised various informal/new claims during long adjudicative history; seeks adjudication | VA/Board: A Court JMR required RO to address all newly-raised claims before Board may fully adjudicate certain secondary claims | REMANDED to the AOJ: RO must adjudicate all pending/new claims, then issue SOC/SSOC as needed and return case to Board for final decision |
Key Cases Cited
- Manlincon v. West, 12 Vet. App. 238 (1999) (procedure directing remand for RO to issue SOC when informal claims were raised)
- Carter v. Shinseki, 26 Vet. App. 534 (2014) (Board must focus on arguments in a joint motion for remand and treat the motion's terms as a factor in addressing related issues)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence and argument on remanded matters)