BVA Case 23-827: Back

PIETSCH, Judge :Appellant Natividad Fontillas,through counsel, appeals the December 30,2022,Board of Veterans'Appeals (Board) decision in which the Board denied effective dates earlier than January 15,2014, for awards of service connection for (1)type 2 diabetes mellitus with retinopathy associated with herbicide agent exposure;(2) right upper extremity diabetic neuropathy;(3)left upper extremity diabetic neuropathy;(4) right lower extremity diabetic neuropathy;(5)left lower extremity diabetic neuropathy; and (6)end-stage renal disease.

In the December 2014 rating decision, the RO determined that the claim for service connection for diabetes mellitus type 2 remains denied because the evidence submitted is not new and material.

In reaching this determination,the RO considered evidence from the veteran's testimony,the veteran's service officer, the veteran's private treatment records, and his private providers'statements;the RO found that this evidence did not constitute new and material evidence because it does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim.

In a March 2018 SOC,the RO found that VA had not yet received new and material evidence sufficient to reopen the claim for service connection for diabetes mellitus type 2, and the RO continued to deny service connection for this disorder.

In an April 2021 decision,the Board determined that the Substantive Appeal received on September 26,2018,was timely with respect to the December 2014 rating decision and March 2018 SOC that adjudicated whether the Agency had received new and material evidence sufficient to reopen a previously denied claim for service connection for diabetes mellitus type 2,and service connection for kidney,renal failure,as secondary to diabetes mellitus type 2.

In the December 2022 decision we consider here on appeal,the Board denied the appellant's claims for entitlement to effective dates earlier than January 15,2014, for the awards of service connection for (1)diabetes mellitus type 2 with retinopathy associated with herbicide exposure;(2)right upper extremity diabetic neuropathy;(3)left upper extremity diabetic neuropathy;(4)right lower extremity diabetic neuropathy;(5) left lower extremity diabetic neuropathy;and (6)end-stage renal disease.

In response,the Secretary maintains that the appellant fails to show that the Board erred simply because it did not address whether,following the final May 2004 rating decision and subsequent June 2005 SOC,the Board would waive the 60-day filing requirement for a Substantive Appeal pursuant to 38 U.

The Secretary further contends that even if the Court were to find that the Board was required to,but did not address waiver, the appellant still has not demonstrated error in the decision, because contrary to the appellant's argument, Percy did not hold that the Board is required to address whether it is willing to waive the requirement of a timely Substantive Appeal.