holding that the Board's finding that a matter was not before it because a Substantive Appeal had not been filed was error and determining that, 31 because a timely NOD had been submitted and the RO never responded by issuing an SOC as required by law and regulation, the proper remedy was to vacate the Board decision as to the matter and remand to the Board "for appropriate procedural compliance, specifically the issuance of an SOC"
How later courts described this case
- holding that the Board's finding that a matter was not before it because a Substantive Appeal had not been filed was error and determining that, 31 because a timely NOD had been submitted and the RO never responded by issuing an SOC as required by law and regulation, the proper remedy was to vacate the Board decision as to the matter and remand to the Board "for appropriate procedural compliance, specifically the issuance of an SOC"
- holding that Francisco “is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability” and that “staged” ratings may be assigned as to an initial rating when the rated condition shows fluctuation in severity
- recognizing that “separate ratings can be assigned for separate periods of time based on facts found”
- noting, in case where veteran had not applied within one year after discharge and so there was no question of applying section 5110(b)(1), that "at the time of an initial rating 'separate ratings can be assigned for separate periods of time based on facts found’, a practice known as ‘staged’ ratings” (citations omitted)
Written by the judges who cited it.
Distinguished
Distinguished by Dwayne A. Moore v. R. James Nicholson, 21 Vet. App. 211 (2007)
Although our dissenting colleague asserts this decision is contrary to established caselaw, Fenderson v. West, 12 Vet.App. 119, 126 (1999), is inapposite.
The opinion
HOLD AWAY, Judge,
concurring in part and dissenting in part:
I do not agree with the majority’s conclusion that the appellant did not receive an *133 adequate SOC with respect to Ms claim for compensation for the right-testicle condition. The RO established a 0% disability rating for the appellant’s condition and the appellant filed a statement specifically disagreeing with that decision. In April 1995, the appellant did receive an SSOC which specifically stated: “Increased evaluation for service-connected residuals of surgery, right testicle, is not established.” The SSOC explained that the medical evidence had not shown atrophy of the right testicle or complaints or treatment for residuals of surgery to the right testicle. For that reason, the SSOC stated that there was no reasonable basis for granting the appellant a compensable rating. The SSOC does not state that a claim for increased compensation was denied. From the language of the SSOC, a reasonably prudent person could have perceived that the RO had simply denied a compensable rating for the right-testicle condition. The SSOC succinctly provided reasons and bases for the RO’s decision that were sufficient to permit the veteran to appeal the issue to the Board. See 38 C.F.R. § 19.29 (1998) (stating that an “[SOC] must be complete enough to allow the appellant to present written and/or oral arguments before the Board”). However, he did not. In fact, the appellant’s service representative did not even mention the right-testicle condition in the December 1995 informal hearing presentation before the Board. See 38 U.S.C. § 7105 (d)(3) (stating that a formal appeal setting out specific allegations of error relating to the items in the SOC must be filed in order to perfect an appeal to the Board); 38 C.F.R. § 20.202 (1998) (implementing regulation). The majority ignores the fact that the SSOC clearly placed the appellant on reasonable notice of the denial of a compensable rating. The majority requires a degree of linguistic precision in the SSOC that is simply not required by statute or regulation. On the facts of this case, it is only reasonable to conclude that the appellant understood that he had been denied a compensable rating for the right-testicle condition and abandoned that claim before the Board. Furthermore, any mis-classification of the appellant’s claim as a claim for an increased rating, as opposed to an original claim, after service connection had been granted would have been harmless error. Therefore, I would affirm the BVA’s determination that the appellant had not filed a substantive appeal with respect to the right-testicle claim.