Citation Nr: 1308316 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-18 485 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Whether the Veteran timely perfected an appeal as to the July 2003 rating decision in which the RO denied service connection for post-traumatic stress disorder (PTSD). 2. Service connection for PTSD. REPRESENTATION Appellant represented by: Paul Alexander, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1980. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2006 rating decision in which the RO reopened a previously-denied claim for service connection for PTSD, but denied service connection for PTSD, on the merits. A statement of the case (SOC) was issued in April 2007 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2007. In September 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing the Veteran requested, and the Veterans Law Judge granted, a 60-day abeyance to submit additional evidence. In January 2010, the Veteran submitted additional evidence, along with a waiver of the Veteran's right to have this evidence initially considered by the RO. This evidence was accepted for inclusion in the record on appeal by the Board in a February 2011 decision in which the Board that found that new and material evidence had not been received to reopen the Veteran's claim for service connection for PTSD. See 38 C.F.R. §§ 20.800, 20.1304 (2012); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Also, in January 2011, the Veteran submitted additional evidence directly to the Board, without a waiver of initial RO consideration of the evidence. This evidence consisted of VA treatment records, a statement from the Veteran, and a letter from the Social Security Administration (SSA). In the February 2011 decision, the Board determined that, as this evidence was not pertinent, a remand for the RO to consider this evidence in the first instance, pursuant to 38 C.F.R. § 20.1304, was not warranted. In February 2011, the undersigned Veterans Law Judge denied a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C. § 7107(a) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In February 2011, the undersigned In April 2011, a motion for reconsideration of the February 2011 Board decision was filed. In July 2011, a Deputy Vice-Chairman of the Board denied the motion for reconsideration under the provisions of 38 U.S.C.A. §§ 7103, 7104 (West 2002) and 38 C.F.R. §§ 20.1000, 20.1001 (2012). The Veteran appealed the Board's February 2011 decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in May 2012, the Court granted a Joint Motion for Remand (Joint Motion) filed by counsel for the appellant and counsel for the VA Secretary, vacating the Board's decision, and remanding this matter to the Board for further proceedings consistent with the Joint Motion. Further argument, and accompanying evidence, has since been received in presentations from the Veteran's attorney dated in December 2012 and February 2013. For reasons expressed below, the Board has recharacterized the appeal as encompassing both matter set for on the title page. The Board's decision on the question on the timeliness of appeal of the July 2003 denial of service connection for PTSD is set forth below. [The Board notes that, given the favorable disposition of this matter, the Veteran is not prejudiced by the characterization of the appeal in this regard.]. The claim for service connection for PTSD is addressed in the remand following the order; this matter is being remanded to RO for further action. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board again notes that, in August 2005, the Veteran filed a claim for service connection for an adjustment disorder but that it did not appear that this claim for service connection had been addressed by the RO; as such, this matter, not properly before the Board, was referred to the RO for appropriate action. There still being no indication that this matter has been addressed, the claim for service connection for an adjustment disorder is again referred to the RO for appropriate action. FINDING OF FACT In a VA Form 9, Appeal to the Board of Veterans' Appeals received in May 2004, following the issuance of a February 2004 SOC, the Veteran perfected a timely appeal to the Board with respect to denial of service connection for PTSD. CONCLUSION OF LAW As the Veteran filed a timely substantive appeal as to the denial of service connection for PTSD by rating decision dated in July 2003, that rating decision is not final, and the claim for service connection remains pending on appeal. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.302 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). Given that the Board's favorable determination on the only matter being decided, at this juncture, the Board finds that no further notification or assistance with respect to this aspect of the appeal is required. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. If several issues were addressed previously, the substantive appeal should indicate which issues are being appealed. The substantive appeal should also set out specific arguments relating to errors of fact or law. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error. See 38 C.F.R. § 20.202. Except in the case of simultaneously contested claims, a substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed. 38 C.F.R. § 20.302. The record reflects that a July 2003 rating decision, the RO, inter alia, denied service connection for PTSD. Notice of this decision was mailed to the Veteran on July 14, 2003, and following a September 2003 notice of disagreement, an SOC addressing the issue of entitlement to service connection for PTSD was completed in February 2004. In the February 2011 decision, the Board found that the Veteran did not perfect an appeal to the Board with respect to the July 2003 rating decision that denied the claim for service connection for PTSD, and that the July 2003 rating decision was therefore "final." See 38 U.S.C.A. §7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. As such, the Board determined that new and material evidence had to be presented if the Veteran wished to reopen his claim for service connection for PTSD. 38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a). However, the parties to the Joint Motion pointed out that, in determining that the July 2003 decision was final, the Board erred in not considering a statement submitted by the Veteran marked "Appeal" dated December 6, 2003, in conjunction with Archbold v. Brown, 9 Vet. App. 124 (1996) (holding that a claimant may file an appeal to the Board prior to the issuance of an SOC). The Joint Motion also indicated that upon remand, the appellant could raise further argument with regard to a VA Form 9, Appeal to the Board of Veterans' Appeals contained in the claims file dated May 4, 2004. Closer inspection of the claims file does reveal a VA Form 9, Appeal to the Board of Veterans' Appeals, dated April 29, 2004, with an electronic communication date on the bottom of this form of May 4, 2004. Substantive argument with the denial of service connection for PTSD was contained therein and in attachments. The Veteran indicated therein that due to being incarcerated on January 29, 2004, he had had not "received a VA 9 Form or the VA decision until recently." [The record reflects a December 2002 letter from the RO to the Sherriff of the Los Angels County jail documenting awareness that the Veteran was incarcerated at this facility at that time or recently. The Board notes that the February SOC was not mailed to the address listed by the Veteran on the above referenced Veteran's statement marked "Appeal" dated December 6, 2003, that was received at the RO on December 29, 2003. The address on the VA Form 9 dated April 29, 2004 was the same as used in the December 6, 2003 statement.] While no further argument has been received by or on behalf of the Veteran as to why the VA Form dated April 29, 2004, should be considered a timely appeal to the Board with respect to the claim for service connection for PTSD denied in the July 2003 rating decision, and the exact import in terms of when the document was received at the RO of the electronic communication date on the bottom of this form of May 4, 2004, is not clear, the Board will resolve all reasonable doubt in this regard (particularly in light of the Veteran's appareant incarceration during the time at issue and the question as to whether the February 2004 SOC was sent to the Veteran's proper address) and conclude that a substantive appeal addressing the claim for service connection for PTSD was received at the RO on May 4, 2004. Thus, as receipt of a substantive appeal on such a date would be within one year of the notice of the July 2003 rating decision, the Board finds that the Veteran's communication received on May 4, 2004, represents a timely substantive appeal with respect to the denial of service connection for PTSD by the July 2003 rating decision. 38 C.F.R. § 20.302. Having determined that a timely substantive appeal was received on May 4, 2004, that portion of July 2003 rating decision in which the RO denied service connection for PTSD is not final. As such, the question as to whether the statement marked "Appeal" dated December 6, 2003, may be viewed as a substantive appeal pursuant to Archbold has been rendered moot. ORDER As a timely appeal as to the July 2003 rating decision in which the RO denied service connection for PTSD was perfected, to this limited extent, the appeal is granted. REMAND In light of the above determination that the July 2003 rating decision is not final and the claim for service connection is, therefore, still pending, additional RO action on the claim is warranted.. Accompanying presentations from the Veteran's attorney dated in December 2012 and February 2013 is additional pertinent evidence for which initial consideration of such evidence by the RO has not been waived. As such, to afford the Veteran due process, the Board must remand this matter for initial review of such evidence by the RO in conjunction with a denovo adjudication of the claim for service connection for PTSD, and for issuance of an SSOC reflecting such consideration. See 38 C.F.R. § 20.1304(c) (2012). This remand will also afford the RO the opportunity to review evidence submitted in conjunction with the Veteran's April 2011 motion for reconsideration that was not considered in any previous adjudication by the RO. While this matter is on remand, to ensure that all due process requirements are met, the RO should afford the Veteran another opportunity to present information and/or evidence pertinent to the claim. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish appropriate current authorization for the RO to obtain records from any private physicians that may have provided relevant treatment. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for PTSD. Accordingly, the claim for service connection for PTSD is hereby REMANDED for the following action: 1. The RO should send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the de novo claim for service connection for PTSD that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the de novo claim for service connection for PTSD in light of all pertinent evidence -to include that received in conjunction with the April 2011 motion for reconsideration and presentations from the Veteran's attorney dated in December 2012 and February 2013 and any additional pertinent evidence that may be received.-and legal authority. 4. If the de novo claim for service connection for PTSD is denied, the RO must furnish to the Veteran and his attorney an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations (to include a thorough discussion of all pertinent evidence and argument) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs