Citation Nr: 1108665 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 09-14 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Adequacy of an October 19, 2007 statement to be construed as a "Notice of Disagreement" (NOD) with regard to an October 31, 2006 rating decision. REPRESENTATION Appellant represented by: Richard Little, Agent ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active duty from July 1966 to April 1970 and again from September 1974 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In April 2006, July 2006, and January 2008 correspondence the Veteran's representative raised the following issues: 1) an August 13, 1970 rating decision identifying the Veteran's nervous condition as non-existent in service records is the product of clear and unmistakable error (CUE), 2) a September 28, 1990 rating decision assigning a noncompensable disability rating for posttraumatic stress disorder (PTSD) is the product of CUE (the Board notes that the September 1990 rating decision did not grant service connection for PTSD and/or assign a disability rating at that time, rather by rating decision dated in September 1990 the RO granted service connection for left acromioclavicular joint separation and assigned a noncompensable disability rating), 3) a previous denial of entitlement to service connection for bilateral hearing loss was CUE, 4) the failure to properly notify the Veteran with regard to RO decisions at the Veteran's proper address vitiated these notices as a result of being inconsistent with established provision of due process, and 5) increasing the Veteran's service-connected PTSD from noncompensable to 10 percent disabling when the standardized Global Assessment of Functioning ("GAF") scale evinced a substantially higher rating is the product of CUE (the Board notes that the Veteran's PTSD was never rated as noncompensably disabling, a May 1995 rating decision grated service connection for PTSD and assigned an initial 10 percent disability rating). However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. By rating decision dated October 31, 2006 the RO made decisions regarding five issues. 2. In correspondence labeled a notice of disagreement and dated October 19, 2007, the Veteran's representative expressed dissatisfaction with the October 31, 2006 rating decision but did not specify which issues the Veteran or his representative were in disagreement with. 3. By correspondence dated in December 2007 the RO informed the Veteran and his representative that the October 19, 2007 correspondence did not indicate the specific determination with which the Veteran disagreed and did not qualify as a valid notice of disagreement for the purpose of initiating an appeal; the December 2007 letter indicated that the Veteran or his representative had 60 days to respond to this letter with clarification as to which issue(s) the Veteran and his representative were in disagreement with. 4. In January 2008 correspondence the Veteran's representative disagreed with the RO's December 2007 finding that the October 19, 2007 was not a valid notice of disagreement. CONCLUSION OF LAW The October 19, 2007 statement is not a valid notice of disagreement with regard to an October 31, 2006 rating decision and the Veteran and his representative failed to clarify the issue(s) they were in disagreement with within 60 days of a December 2007 letter requesting such clarification. 38 C.F.R. §§ 19.26, 19.28, 20.201. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's representative argues that correspondence he submitted on October 19, 2007 constituted an NOD with regard to an October 31, 2006 rating decision and that VA had a duty to issue a statement of the case (SOC). Factual Background By rating decision dated October 31, 2006 the RO made decisions regarding five issues. Specifically, the RO increased the Veteran's disability rating for his service-connected PTSD from 50 percent to 70 percent disabling effective April 19, 2006, the RO continued previous denials of service connection for gastroenteritis and bilateral hearing loss, the RO granted a total disability rating based on individual unemployability (TDIU) from April 19, 2006, and the RO denied service connection for heart disease. In correspondence labeled an NOD and dated October 19, 2007 the Veteran's representative wrote the following: Pursuant to 38 U.S.C.A. § 7105(d)(1), the veteran herewith expresses disagreement with the decision dated, October 31, 2006. The decision is erroneous for a number of reasons including but not limited to: 1) failure to consider all evidence of record in rendering the decision; 2) failure to accurately apply relevant regulatory and statutory provisions in rendering the decision; 3) failure to comply with established adjudicatory provisions of the Veterans Claims Assistance Act. Please issue a Statement of the Case so [the Veteran] may appeal his case directly to the Board of Veterans' Appeals, in Washington, DC. If any claim which has been submitted by the veteran, or which should have been inferred by the VA under its duty to sympathetically develop the veteran's claim per Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), is "deemed" to have been denied by the VA pursuant to Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), this letter constitutes a Notice of Disagreement with that denial. Subsequently, by correspondence dated in December 2007 the RO informed the Veteran and his representative that the October 19, 2007 correspondence did not indicate the specific determination with which the Veteran disagreed and did not qualify as a valid NOD for the purpose of initiating an appeal. The December 2007 letter indicated that the Veteran or his representative had 60 days to respond to this letter with clarification as to which issue(s) the Veteran and his representative were in disagreement with. In January 2008 correspondence the Veteran's representative disagreed with the RO's December 2007 finding that the October 19, 2007 was not a valid NOD. The Veteran's representative argued that the RO's conclusion that the NOD was flawed because it did not disagree with specific issues was wrong because it "reject[ed] prevailing federal statute and regulations, which define the substance of an NOD." Legal Criteria An NOD is a written communication from a claimant and his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ. While special wording is not required, an NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the NOD must make that clear. 38 C.F.R. § 20.201. If within one year after mailing an adverse decision (or 60 days for simultaneously contested claims), the AOJ receives a written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the AOJ will contact the claimant to request clarification of the claimant's intent. This contact may be either oral or written. For written contacts, VA will mail a letter requesting clarification to the claimant and send a copy to his or her representative and fiduciary, or any. The claimant must respond to the AOJ's request for clarification within the later of the following dates: 60 days after the date of the AOJ's clarification request, or, one year after the mailing of notice of the adverse decision being appealed (60 days for simultaneously contested claims). 38 C.F.R. § 19.26. Whether an NOD is adequate is an appealable issue. If the claimant and his or her representative protests an adverse determination made by the AOJ with respect to the adequacy of an NOD, the claimant will be furnished an SOC. 38 C.F.R. § 19.28. Analysis The Board finds that the October 19, 2007 statement cannot be a valid NOD with regard to the October 31, 2006 rating decision. While the October 19, 2007 statement was timely as to the October 31, 2006 rating decision and expressed dissatisfaction with the October 31, 2006 rating decision, because the October 31, 2006 rating decision issued decisions with regard to several issues and the October 19, 2007 statement did not specify which issues the Veteran was in disagreement with, the October 19, 2007 statement did not meet the requirements to be a valid NOD pursuant to 38 C.F.R. § 20.201. As above, pursuant to 38 C.F.R. § 20.201, if the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified in a valid NOD. Rather than simply clarifying the appeal issues in the time allotted by the RO's December 2007 letter pursuant to 38 C.F.R. § 19.26, the Veteran's representative perplexingly chose to instead dispute the determination that clarification was needed. Furthermore, it appears that the Veteran's representative is, in fact, not in disagreement with any of the issues adjudicated in the October 31, 2006 rating decision with the exception, perhaps, of the bilateral hearing loss as the Veteran's representative now seems to be pursuing several CUE claims noted in the introduction of this decision that were not part of the October 31, 2006 rating decision. As such, the Board finds that the October 19, 2007 statement is not a valid NOD with regard to an October 31, 2006 rating decision. Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The facts of this case are not in dispute; rather, this case involves pure statutory interpretation. The duties to notify and assist do not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001), Cf. Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). ORDER The October 19, 2007 statement is not a valid NOD with regard to an October 31, 2006 rating decision. ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs