Citation Nr: 1309919 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-33 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date prior to January 23, 2008 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active duty service in the Army from January 1989 to July 1989 and from January 1991 to August 1991 and in the Army National Guard from February 1992 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. A claim for service connection for PTSD was initially received in November 1992. The claim was denied in a June 1993 rating decision. The Veteran did not submit a notice of disagreement with the June 1993 rating decision, and the decision is final. 2. The Veteran filed an application to reopen service connection for PTSD on January 23, 2008. CONCLUSIONS OF LAW 1. The June 1993 rating decision became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 20.1103 (2012). 2. The criteria for an earlier effective date, prior to January 23, 2008, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156(c), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In this case, the Veteran was provided with notice of the provisions for effective dates in letters dated in June 2008 and December 2008. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, in appeals where the law is dispositive, as in this case, review of VA's duty to notify and assist is not necessary. In cases such as this, VA is not required to meet the duty to notify or assist a claimant where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. The notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). Earlier Effective Date for Service Connection for PTSD The effective date of an evaluation and award of pension, compensation, or dependency, and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110. The effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). The Veteran separated from active duty service in August 1992. The RO received a claim for service connection for PTSD in November 1992. In a June 1993 rating decision, the RO denied the claim for service connection for PTSD because the Veteran failed to report for a VA examination. In June 1993, the RO notified the Veteran of the rating decision. A claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that the agency mails the notice of the determination to him or her. 38 C.F.R. § 20.302 (2012). The RO mailed the rating decision to the Veteran in June 1993. The Veteran did not submit a timely notice of disagreement within one year of the mailing of the rating decision. As the Veteran did not file a NOD, the June 1993 rating decision denying the claim for service connection for PTSD became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The Veteran contends that he is entitled to an earlier effective date because the nature of his PTSD prevented him from pursuing an appeal of the June 1993 rating decision, and his PTSD prevented him from understanding what he needed to do to appeal his claim. Based upon the Veteran's argument that he did not understand what was required to pursue an appeal, the Board has considered the doctrine of equitable tolling. The application of equitable tolling within the context of veterans law stems from Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), wherein the United States Supreme Court (Supreme Court) held that equitable tolling may be applied to toll a statute of limitations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id. As it applies to the governing statute in this case, 38 U.S.C.A. § 5110, Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) held that equitable tolling, which may be applied to a statute of limitations, does not apply to 38 U.S.C.A. § 5110 because it does not contain a statute of limitations but merely prescribes when benefits may begin and provides for an earlier effective date under certain limited circumstances. The following year, Barrett v. Principi, 363 F.3d 1316 (2004) expanded equitable tolling to apply not only where the claimant has been "induced or tricked by his adversary's misconduct" but also where his or her "failure to file was the direct result of a mental illness that rendered him or her incapable of 'rational thought or deliberate decision making.'" As Barrett dealt with the statute of limitation for filing appeals to the Court from decisions of the Board under 38 U.S.C.A. § 7266, it did not reverse Andrews on the point that the effective dates prescribed by 38 U.S.C.A. § 5110 are not statutes of limitation. Therefore, the controlling case law, Andrews (Holly) v. Principi, 351 F.3d 1134 (Fed. Cir. 2003), is that equitable tolling does not apply to 38 U.S.C.A. § 5110. As the effective date established for service connection for the Veteran's PTSD was based on 38 U.S.C.A. § 5110, the Board must continue to deny this appeal even with this additional consideration. Another, more recent decision of the Federal Circuit also addressed this issue, cited to Andrews as good law, and similarly concluded that equitable tolling is not an available remedy to an appellant under § 5110. See Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) (per curiam). Accordingly, the Veteran's equitable tolling argument must fail on this basis because he is essentially asking the Board to "waive the express statutory requirements for an earlier effective date," which it cannot do. See Edwards, 22 Vet. App. at 36- 37, quoting Andrews, 351 F.3d at 1138. Thus, the doctrine of equitable tolling is not for application in this case. The Veteran has essentially argued that he did not file a notice of disagreement to the June 1993 rating decision because his PTSD prevented him from understanding what was required to pursue a claim. Although the doctrine of equitable tolling is an evolving area of VA jurisprudence, current jurisprudence indicates that the time period for filing a notice of disagreement is also not subject to equitable tolling. In Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197, 1198 (2011), the Supreme Court affirmed that statutory jurisdictional requirements are not subject to equitable tolling exceptions created by courts; rather, only claims processing rules without jurisdictional consequences are subject to equitable tolling. See also Bowles v. Russell, 551 U.S. 205 (2007). The Board concludes that the requirement that a claimant file a timely notice of disagreement is a jurisdictional predicate to the Board's adjudication of a matter. The Board has jurisdiction over appeals from all questions of law and fact necessary to a decision by the VA Secretary under a law that affects the provision of benefits by the Secretary to veterans and their dependents or survivors. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.101, 20.200 (2012). A claimant may initiate an appeal to the Board from an unfavorable decision by the Secretary by filing a notice of disagreement. 38 U.S.C.A. § 7105(a) (West 2002). The statute provides that the notice of disagreement "shall" be filed within one year of the mailing of notification of the unfavorable decision. 38 U.S.C.A. § 7105(b)(1) (West 2002). The statute further provides that if the claimant does not file a notice of disagreement within the one-year period, the decision "shall become final." Id. If a timely notice of disagreement is filed, however, the claimant completes the appellate process by submitting a substantive appeal after a statement of the case is furnished in accordance with 38 U.S.C.A. § 7105(d)(3) (West 2002). In Percy v. Shinseki, 23 Vet. App 37 (2009), the Court noted that, although Congress used "permissive language" in the statute for filing a substantive appeal (38 U.S.C.A. § 7105(d)(3) ), the language used by Congress in enacting the statute for filing a notice of disagreement was "mandatory," indicating a clear intention to foreclose the Board's exercise of jurisdiction over a matter where a notice of disagreement had not been filed, but not where a substantive appeal had not been filed. Id. at 44, citing Act of Sept. 19, 1962, Pub. L. No. 87-666, 76 Stat. 553 (enacting both NOD and Substantive Appeal requirements). Indeed, the Court noted that "[t]he permissive language of section 7105(d)(3) stands in stark contrast to the statutory language mandating that claimants file a timely NOD: "notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination" and "[i]f no notice of disagreement is filed . . . within the prescribed period, the action or determination shall become final." See also Manlincon v. West, 12 Vet. App. 238, 240 (1999) (indicated that a NOD is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) ("appellate review of an RO decision is initiated by an NOD"); Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"). For these reasons, the Board finds that the filing of a notice of disagreement is jurisdictional, thus not subject to the equitable tolling doctrine; therefore, there is no basis upon which to assign an effective date earlier than November 26, 2008 based on the Veteran's implied equitable tolling arguments. Even assuming, arguendo, that equitable tolling was available to the Veteran, an earlier effective date would remain unwarranted. According to Barrett, mental illness could justify equitable tolling and the generalized standards should govern claims of mental incompetence. To obtain the benefit of equitable tolling, a Veteran must show that the failure to file was the direct result of a mental illness that rendered him incapable of "rational thought or deliberate decision making," or "incapable of handling [his] own affairs or unable to function [in] society." See Barrett v. Principi, 363 F.3d 1316 (2004), citing Melendez-Arroyo v. Cutler-Hammer de P.R., Co., 273 F.3d 30, 37 and Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 580. It has not been shown in this case that the Veteran's mental illness rendered him incapable of rational thought or deliberate decision making or incapable of handling his own affairs at the time of the rating decision in June 1993. There is no evidence indicating that the Veteran has ever been found incapable of rational thought or was incapable of handling his own affairs at that time. An August 2008 VA examination found that the Veteran's thought processes were linear, logical, and goal-directed. The Veteran was considered to be competent for VA purposes. Based on the above, the Board does not find that the Veteran's PTSD and associated symptoms in June 1993 rendered him incapable of rational thought or deliberate decision making, incapable of handling his own affairs, or unable to function in society. As such, equitable tolling, if it was available to the Veteran, would not be warranted. In the August 2008 VA examination, the VA examiner referred to the award of the Army Commendation Medal with Valor Device for "Heroism and Meritorious Service During an Iraqi Missile Attack on the Company Barracks." The Board notes that the Army Commendation Medal citation is not listed on the DD Form 214. The award certificate for the Army Commendation Medal was initially associated with the record when it was submitted by the Veteran in February 2008. Under 38 C.F.R. § 3.156(c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section. An award made based all or in part on records identified in § 3.156(c)(1) is effective on the date entitlement arose or the date which VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. 38 C.F.R. § 3.156(c)(3). Reconsideration of the Veteran's prior claim in light of the Army Commendation Medal citation does not provide a basis for an earlier effective date for service connection for PTSD. The June 1993 rating decision denied service connection for PTSD based on a lack of a diagnosis of a psychiatric disorder. A diagnosis of PTSD and a nexus opinion linking PTSD to service was initially shown in August 2008. Therefore, even with consideration of the Army Commendation Medal citation, entitlement to service connection had not arisen in June 1993, as there was no evidence of a diagnosis of PTSD or a nexus opinion linking PTSD to service at that time. The Board also notes that, inconsistent with the Veteran's contention that he was unable to understand basic instructions such as how to express the simplest disagreement with a rating decision, or that in some unexplained way he was precluded by PTSD from sending a NOD to VA, the Veteran submitted a claim to VA for an increased rating for a different disability in July 1993, which is the month following the June 1993 rating decision. This demonstrates that the Veteran was aware of the process for submitting a claim for VA benefits, and his PTSD did not prevent him from communicating with VA, including communicating that he wanted benefits for specific disability, and reflects an understanding that in order to obtain benefits he needs to communicate with VA to ask for them. After the issuance of the June 1993 rating decision, the Veteran did not submit any communication to the RO regarding service connection for PTSD until January 23, 2008; therefore, the earliest effective date allowed by law and regulation for the grant of service connection for PTSD is January 23, 2008, the date of receipt of the application to reopen service connection for PTSD. For the reasons stated above, the Veteran's appeal for an effective date prior to January 23, 2008 for service connection for PTSD must be denied. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). For these reasons, the appeal for earlier effective date for service connection for PTSD must be denied due to a lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An earlier effective date prior to January 23, 2008 for the grant of service connection for PTSD is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs