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Court reverses Board’s finding that the Veteran did not perfect his appeal

Court reverses Board’s finding that the Veteran did not perfect his appeal

Summary of the Case

The Veteran served honorably in the U.S. Army from 1975 to 1799 and again from 1984 to 1986. While in service, he sought treatment for back pain, and after service he was diagnosed with degenerative disc disease. He filed a claim for service connection in October 2007. The VA regional office denied the claim the following year, but sent the rating decision to the wrong address. That rating decision was returned as undeliverable and VA re-sent it to the Veteran’s correct address.

The Veteran filed a Notice of Disagreement , in which he clarified his address to ensure VA knew where to send any other documents. VA in fact did send other unrelated documents to the Veteran’s correct address over the following year. However, when VA issued the Statement of the Case in January 2010, it again used the incorrect address.

Although the Veteran did not receive the Statement of the Case, he did receive a letter from VA one week later. That letter referred to the Statement of the Case and told him that if he wished to continue his appeal, he would need to file a VA Form 9 within 60 days. But that letter did not include a copy of the VA Form 9 for the Veteran to submit. In February 2010, the Veteran wrote a letter to VA and enclosed supporting documents. He asked VA to continue to work on his claim for service connection. Several months later, VA finally sent a Statement of the Case and a copy of the VA Form 9 to the Veteran’s correct address. The Veteran returned the VA Form 9 to VA, but a rating specialist concluded that the appeal was not timely.

 

The Veteran Appealed To the Board

The Board of Veterans’ Appeals also found the Veteran’s appeal was not timely. It found that the documents he submitted in February 2010 could not be considered a timely appeal because they were submitted before the Veteran received the Statement of the Case. It also found that the documents did not provide sufficient information to indicate the Veteran intended to continue his appeal.

With CCK’s help, the Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims.

 

CCK appeals to Court and the CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it concluded the Veteran had not perfected his appeal. Specifically, the Court agreed that Board was wrong that a veteran cannot perfect an appeal without first receiving a copy of the Statement of the Case. The Court also agreed that the Veteran’s February 2010 documents “plainly referred to his back disability” and were “directly responsive to the reasons the RO denied his claim.” Because VA must read these documents liberally, the Court found these statements were specific enough to notify the Board of the specific errors the RO made in the decision being appealed.

The Court reversed the Board’s decision and remanded the claim with instructions that the Board consider claim for service connection for his back disability back to the 2007 claim.

Click here to read the Court’s decision.

Category: Court Wins

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