Citation Nr: 1312871 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-33 906A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether a timely notice of disagreement with a May 1986 rating decision was filed. REPRESENTATION Appellant represented by: Mark Lippman, Attorney at Law ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served with the Louisiana Army National Guard from February 1980 to July 1984. The Veteran had active service from June 1980 to September 1980. He was on active duty for training from June 2, 1984 to June 16, 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 determination by the New Orleans, Louisiana Department of Veterans Affairs (VA) Regional Office (RO) which determined that the notice of disagreement received in April 2006 for the May 1986 rating decision was not timely. A review of the record reveals the RO denied entitlement to service connection for bipolar disorder in a May 1986 rating decision. The Veteran was notified of this decision in May 1986. The record shows that the Veteran did not perfect an appeal relative to this rating determination, and the decision became final. On August 6, 1991, a formal application for VA compensation benefits, VA Form 21-526, was received at the RO. The RO interpreted this claim as a claim to reopen service connection for a psychiatric disability. A March 1993 rating decision granted entitlement to service connection for schizophrenia, bipolar disorder and a 50 percent rating was assigned from August 6, 1991, the date of receipt of the reopened claim. A May 1994 rating decision assigned a 100 percent rating to the schizophrenia from August 6, 1991. In September 1998, the Veteran filed a claim for an earlier effective date for the award of service connection for schizophrenia. In a November 1998 rating decision, the RO denied entitlement to an earlier effective date earlier than August 6, 1991 for the award of service connection for schizophrenia. A May 1999 rating decision determined that there was no clear and unmistakable error in the March 1993 rating decision that granted service connection for schizophrenia from August 6, 1991. The Veteran perfected an appeal of the November 1998 and May 1999 decisions. In an October 2001 Board decision, the Board found that the May 1986 rating decision did not involve clear and unmistakable error and an effective date earlier than August 6, 1991 for the grant of service connection for chronic paranoid schizophrenia, bipolar disorder was not warranted. In the reasons and bases of the decision, the Board found that the May 1993 rating decision did not contain clear and unmistakable error. The Veteran appealed this matter to the Court of Appeals for Veterans Claims (Court). While this case was pending before the Court, the Office of General Counsel for VA, on behalf of the Secretary, filed a joint motion for remand and for stay of proceedings. The parties to the joint motion for remand requested that the Court vacate the October 2001 Board decision and remand the matter for clarification of the Board's reasons and bases in its decision. The parties to the joint motion for remand indicated that the clarity of the Board's decision would be enhanced if the issue, findings of fact, conclusions of law, and order reflected all of the issues addressed in the reasons and bases portion of the decision. The Court granted this motion in a March 2002 order, and the case was returned to the Board for compliance with the directives stipulated in the motion. In an October 2002 Board decision, the Board found that the May 1986 rating decision was final; the May 1986 rating decision did not involve clear and unmistakable error; the Veteran filed a claim to reopen service connection for a psychiatric disorder on August 6, 1991; the March 1993 rating decision did not involve clear and unmistakable error; and an effective date earlier than August 6, 1991 for the grant of service connection for chronic paranoid schizophrenia, bipolar disorder was not warranted. In the reasons and bases, the Board addressed the Veteran's contention that the remedy of equitable tolling pursuant to 38 C.F.R. § 3.109(b) was appropriate regarding the appeal period relative to the original rating decision in May 1986. The Board found that in connection with the May 1986 rating decision, the RO's instructions regarding the procedures for initiating an appeal of a rating determination were clear and there was no misleading or trickery in this case and there was no provision in VA law for tolling on the basis of the Veteran's lack of diligence due to his psychiatric disorder. The Board found that the doctrine of equitable tolling was not applicable to the facts in the case. The Veteran appealed this matter to the Court. In a February 2005 Order, the Court affirmed the Board's findings in the October 2002 decision that the May 1986 rating decision was final and the Veteran did not file a notice of disagreement with that decision. The Court noted that the Veteran was seeking an extension of the time limit to file a notice of disagreement by application of the doctrine of equitable tolling. The Court indicated that VA regulations provide mechanisms for extending the time limit for filing a notice of disagreement pursuant to 38 C.F.R. § 3.109(b) but the Veteran did not pursue an extension by filing a notice of disagreement. The Court found that the Veteran abandoned the clear and unmistakable error claims. The Veteran appealed this matter to the United States Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit affirmed the Court's decision. The Federal Circuit indicated that because the Veteran did not assert that he filed a notice of disagreement with respect to the May 1986 rating decision either before the Board or the Court, the Federal Circuit declined to review for the first time on appeal the Veteran's argument that the doctrine of equitable tolling applies. The Federal Circuit noted that the Secretary of VA has promulgated 38 C.F.R. § 3.109(b) which allows for an extension of the one year time limit to file a notice of disagreement for "good cause" shown and a claimant who fails to file a notice of disagreement within the one year time limit has the ability to seek an extension to file a notice of disagreement after the time limit for doing so has expired. The Board notes that the Veteran requested a Central Office hearing before the Board. A hearing was scheduled in March 2013 and the Veteran failed to report to the hearing without explanation. Accordingly, the Board will proceed as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In a May 1986 rating decision, the RO denied service connection for bipolar disorder; the Veteran was notified of this decision by a May 15, 1986 letter and he did not perfect an appeal relative to this rating determination; and the decision became final. 2. The Veteran's notice of disagreement with the May 1986 rating decision was received by the RO on April 5, 2006 more than one year following notice of the decision. 3. Good cause has not been shown for an extension of the one year time limit for filing a notice of disagreement for the May 1986 rating decision. 4. VA found the Veteran to be incompetent to handle his own affairs from November 2008. CONCLUSION OF LAW The Veteran did not file a timely notice of disagreement with the May 2006 rating decision. 38 U.S.C.A. § 7105A (West 2002); 38 C.F.R. §§ 3.109, 20.200, 20.501 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) In regard to the Veteran's claim regarding the timeliness of a notice of disagreement, where a claimant has failed to file a timely notice of disagreement, the Board must conclude that there is no reasonable possibility that providing additional assistance would aid in substantiating the underlying claim. Thus, VA is not required to take any further action to assist the claimant. 38 U.S.C.A. § 103(a). The statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based upon statutory interpretation, rather than consideration of factual evidence. DelaCruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria Pursuant to 38 U.S.C.A. § 7105(a) (West 2002), a request for appellate review by the Board of a decision by the RO is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case has been furnished. See also 38 C.F.R. § 20.200 (2012). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement with a determination by the RO within one year from the date that the RO mailed the notice of the determination. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302 (2012). The date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a) (2012). A notice of disagreement must express disagreement with a determination of the agency of original jurisdiction and express a desire to contest the result. 38 C.F.R. § 20.201 (2012). While special wording is not required, the notice of disagreement must be in terms that can reasonably be construed as disagreement with the determination and a desire for appellate review. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2012); see also Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). Pursuant to 38 C.F.R. § 3.109 (2012), time limits for filing may be extended in some cases on a showing of 'goos cause.' Specifically, 38 C.F.R. § 3.109 (b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. There is no legal entitlement to an extension of time; rather, 38 C.F.R. § 3.109 (b) leaves the decision to the sole discretion of VA. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). There are other circumstances where VA's statutory period to perfect a timely appeal to the Board may be equitably tolled. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453 (1990). VA's statutory filing time periods may be equitably tolled where the Veteran has "actively pursued his judicial remedies by filing a defective pleading during the statutory period" or "has been induced or tricked by [VA or an employee] into allowing the filing deadline to pass." Irwin, 498 U.S. at 96. Further, in certain circumstances, mental illness may justify tolling. In Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004), the Federal Circuit has found equitable tolling may be proper in a case where because of mental illness a veteran filed with the Court an untimely Notice of Appeal of a Board decision. Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004). The Federal Circuit found that for equitable tolling to apply, the 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." It was noted that a medical diagnosis alone or vague assertions of mental problems would not suffice. The Federal Circuit also indicated that if the veteran was represented by counsel during the relevant period, the veteran must make an additional showing that the mental illness impaired the attorney-client relationship. Id. The Board observes that 38 C.F.R. § 3.353(a) (2012) defines a mentally incompetent person as "one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation." III. Analysis The Veteran and his attorney assert that the appeal period relative to the original rating action in May 1986, should be tolled because of the Veteran's incapacitation due to his mental disorder and medications used to treat his psychiatric symptomatology. During hearings in April 1999 and May 2001, the Veteran and his representative asserted that the effective date for the award of service connection for chronic paranoid schizophrenia, bipolar disorder is approximately 1984, the date of his discharge from National Guard service. The Veteran and his family members essentially assert that the Veteran lacked the mental capacity to understand the appeals process and was incapable of pursuing an appeal of the May 1986 denial of his original claim for service connection. In particular, the Veteran stated that he was hospitalized at the time of issuance of the notice and the effects of medication used to treat his psychiatric symptomatology rendered him unable to function. The Veteran further noted that while the address to which the May 1986 notification was sent was correct, he was unable to recall receipt of such letter. See the Veteran's statements dated in May 2006, October 2006, January 2007, and August 2011. The Veteran's attorney argues that the one year time period for filing a notice of disagreement for the May 1986 rating decision should be extended pursuant to 38 C.F.R. § 3.109 due to good cause shown. The attorney argues that the Veteran's schizophrenia caused mental incapacitation during the time period in question and this is good cause to extend the time limit for filing a notice of disagreement. The attorney also argues that the standard set forth in Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) has been met for equitable tolling of the time period for filing a notice of disagreement for the May 1986 rating decision due to the Veteran's mental incapacitation due to the schizophrenia during the time period in question. See the attorney's statements dated in April 2006 and June 2006. The Board notes that 38 C.F.R. § 3.109(b) provides that time limits within which claimants are required to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues. A review of the record reveals the RO denied entitlement to service connection for bipolar disorder in a May 1986 rating decision. The Veteran was notified of this decision by a May 15, 1986 letter. The letter indicates that a VA Form 1-4107, Notice of Procedural and Appellate Rights, was enclosed. The VA notification letter was sent to the Veteran's address of record. There is no indication that this letter was returned as undeliverable. Proper notification for VA purposes is a written notice sent to the claimant's last address of record. 38 U.S.C.A. § 3.1(q). There is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.' United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach); see Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992). This presumption of regularity in the administrative process may be rebutted by 'clear evidence to the contrary.' Schoolman v. West, 12 Vet. App. 307, 310 (1999). The Veteran has not provided clear evidence showing that he did not receive the May 15, 1986 notice letter or that the delivery of the letter was irregular in any way. The Veteran stated that he does not recall receiving the May 1986 notice letter and he made these statements many years after the time period in question. At a RO hearing in May 1999, the Veteran stated that he did not receive the notice letter. He also reiterated this contention in a June 2001 statement. The Board find that these statements alone, made over 10 years after the time period in question, are not clear evidence that VA did not properly discharge their duties in mailing the notice to the veteran at his last known address. Thus, the presumption of regularity is not rebutted and the Board finds that the VA properly discharged its duties and the written notice of the May 1986 rating decision was mailed to the Veteran's last known address on May 15, 1986. The Board finds that the weight of the evidence shows that the Veteran was sent proper notice of the May 1986 rating decision and he did not file a notice of disagreement within the one year time period of the date of notice which was May 15, 1986. The Board finds that good cause has not been shown to extend the time limit for the filing a notice of disagreement for the May 1986 rating decision pursuant to 38 C.F.R. § 3.109. The Veteran and his attorney assert that good cause has been shown and an extension of the one year appeal period should be granted because the Veteran was too mentally incapacitated to file a notice of disagreement during the time period of May 15, 1986 to May 15, 1987. The Veteran contends that he was incapacitated by the schizophrenia and was hospitalized and was unable to file a notice of disagreement. The weight of the evidence shows that the Veteran initially filed a claim for compensation benefits in November 1985. The Veteran and his ex-wife both admitted that his ex-wife (who was married to the Veteran in 1985 and 1986) had filed the claim for compensation in November 1985 on behalf of the Veteran. The private hospital records show that the Veteran was hospitalized from September 1985 to December 1985. The Veteran does not provided an explanation as to why his wife did not assist him at that time with the filing of the notice of disagreement. The May 1986 rating decision and notice letter indicate that the decision and notice letter were sent to "AL" which appears to be the American Legion, although a power of attorney for this representative is not of record. On April 5, 2006, the Veteran, through his attorney, filed a Motion to File Notice of Disagreement as to the Rating Decision of May 1986 and Request for Good Cause Extension of the One-Year Filing Period under 38 C.F.R. § 3.109(b) pursuant to the Federal Court Decision. The Board finds that good cause has not been shown as to why the filing of the notice of disagreement for the May 1986 rating decision, could not have been taken sooner than it was. The April 2006 Motion to File a Notice of Disagreement asserts that the Veteran's chronic schizophrenia during the relevant period establishes good cause for the extension of the one year period for filing a notice of disagreement. Veteran has not provided an explanation, however, as to why he did not file a notice of disagreement or request an extension of the time period to file an appeal for the May 1986 rating decision sooner than April 2006. The Veteran has not provided an explanation as to why he did not file a notice of disagreement or request an extension of the time period to file an appeal for the May 1986 rating decision at the time he filed an August 1991 claim to reopen service connection for a psychiatric disorder. The record shows that on August 6, 1991, a formal application for VA compensation benefits, VA Form 21-526, was received at the RO. The RO interpreted this claim as a claim to reopen service connection for a psychiatric disability. A March 1993 rating decision granted entitlement to service connection for schizophrenia, bipolar disorder and a 50 percent rating was assigned from August 6, 1991, the date of receipt of the reopened claim. A May 1994 rating decision assigned a 100 percent rating to the schizophrenia from August 6, 1991. The Veteran and his attorney assert that the Veteran was too mentally incapacitated due to the schizophrenia to file a notice of disagreement for the May 1986 rating decision within the one year appeal period but they do not provide an explanation as to why the Veteran was able to file a claim to reopen in August 1991 despite his psychiatric disorder. Review of the record shows that the Veteran also had a representative in 1991 to assist with the VA claims process. In September 1998, the Veteran filed a claim for an earlier effective date for the award of service connection for schizophrenia. In a November 1998 rating decision, the RO denied entitlement to an earlier effective date earlier than August 6, 1991 for the award of service connection for schizophrenia. A May 1999 rating decision determined that there was no clear and unmistakable error in the March 1993 rating decision that granted service connection for schizophrenia from August 6, 1991. The Veteran perfected an appeal of the November 1998 and May 1999 decisions. Again, the Veteran does not provide an explanation as to why he was able to file a claim for an earlier effective date in September 1998 but he did not raise the issue of whether an extension of the time period to appeal the May 1986 rating decision was warranted based upon good cause. The Veteran and his attorney do not provide any explanation as to why he did not raise this issue sooner and request an extension sooner. The Veteran and his attorney argue that the evidence shows that the Veteran was unable to handle his affairs and file a notice of disagreement for the May 1986 rating decision within the requisite appeal period because of his schizophrenia caused mental incapacitation. Review of the record shows that VA did not find the Veteran to be incompetent due to the schizophrenia until November 2008. See the March 2009 rating decision. The evidence of record shows that the Veteran was hospitalized numerous times from 1984 to 1991 including a three month hospitalization from September 1985 to December 1985, when the Veteran's initial claim for compensation was filed. The hospital records show that a precipitating factor for the hospitalizations was noncompliance with medication and treatment. See the hospital reports for admissions from February 1987 to March 1987, November 1987 to January 1988, and March 1991 to April 1991. The hospital records and discharge summaries indicate that for the time period in question from May 15, 1986 to May 15, 1987 and from this time period until August 1991, the Veteran's schizophrenic caused periods of incompetence and an inability to handle his affairs. However, the medical evidence also shows that the Veteran had periods of competence as well. The hospital records show that the Veteran was able to handle his affairs when he was complainant with his medication and treatment. The July 1984 hospital summary indicates that upon discharge, the Veteran was deemed competent to manage his affairs. A December 1985 hospital discharge summary indicates that the Veteran's condition had greatly improved and he was discharged to his family on medication. A hospital discharge summary for hospitalization from November 1987 to January 1988 indicates that the Veteran had been off his medications but he was stabilized during the hospitalization. It was noted that the Veteran was thought to be able to handle his affairs at discharge but he would not be able to handle his affairs if he became noncompliant with medication and treatment. It was further noted that he would probably become psychotic again. A December 1992 VA examination report indicates that the Veteran was capable of handling his affairs as long as he remained on medications and in treatment for his chronic paranoid schizophrenia. An April 1995 VA examination report indicates that the Veteran was found to be competent at that time. The Veteran submitted a statement by Dr. H.C., a psychiatrist, in support of his claim. In the April 2002 statement, Dr. H.C. stated that the Veteran was functionally totally disabled since the initial psychotic episode when he was committed to a psychiatric hospital in 1984 and since that time, the Veteran was mentally incapacitated with frequent episodes of psychotic decompensation and frequent inpatient hospitalization. The Board finds that the weight of the evidence shows that the Veteran was incompetent when he was noncompliant with his treatment and medications for the schizophrenia but he also had periods of competence and he was able to manage his affairs for part of the time period in question. The Board finds that the hospital summaries are more probative than the statement by Dr. H.C. since the summaries address the Veteran's mental state and competence during the time periods in question and are more contemporaneous to the time periods in question. Further, although Dr. H.C. indicates that the Veteran was totally disabled and mentally incapacitated since 1984, he does not provide an explanation as to how the Veteran was able to file a claim to reopen in August 1991 and file a claim for an earlier effective date in 1998. As noted, VA did not find the Veteran incompetent until November 2008. Consequently, the Board finds that good cause has not been shown for extending the time limit for filing the notice of disagreement for the May 1986 rating decision based upon mental incapacitation or incompetence. The Board also finds that the principle of equitable tolling because the Veteran was not mentally competent to file a notice of disagreement is not warranted. The Federal Circuit has found that equitable tolling may be proper in a case where because of mental illness a veteran filed with the Court an untimely Notice of Appeal (NOA) of a Board decision. See Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004). In this case, as discussed above, the Veteran was found to be incompetent or unable to handle his affairs when he was noncompliant with his medication and treatment for the schizophrenia during the time period in question but he was not found to be incompetent for the entire time period in question. The medical evidence shows that for part of the time period in question the Veteran was capable of rational thought or deliberate decision making and was able to handle his own affairs. As noted, the Veteran was able to file a claim to reopen in 1991 and file an claim for an earlier effective date in 1998. The record shows that VA found the Veteran to be incompetent from November 2008. The medical evidence shows that the Veteran was rendered incompetent due to the service-connected schizophrenia at times but was not incompetent for the entire time period in question. Consequently, the Board finds that equitable tolling is not warranted. Finally, the Board finds that in this case, there is no indication of trickery or that the Veteran was misled and this caused him to miss the filing deadline. The RO's instructions regarding the procedures for initiating an appeal of a rating determination were clear and there is no misleading or trickery in this case. See Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998). The Board is bound by the laws of Congress as set forth in the statutes, and by the regulations of the Department. 38 U.S.C.A. § 7104. In this case, those laws and regulations dictate the conclusion that the May 1986 rating decision became final in the absence of a timely filed notice of disagreement. The Board is not free to ignore the VA regulations. See, Payne v. Derwinski, 1 Vet. App. 85 (1990). In sum, the Veteran did not file a timely notice of disagreement for the May 1986 rating decision that denied service connection for a psychiatric disorder and equitable remedies are not properly for application given the present facts. Accordingly, absent a timely notice of disagreement and with no good cause shown for an extension of the time period for filing a notice of disagreement or that the Veteran was unable to file a timely notice of disagreement due to incompetence or an inability to handle his affairs, the Board, in its discretion, declines to adjudicate the claim on the merits. The appeal to establish that the Veteran timely filed a notice of disagreement in the matter of a May 1986 RO denial of service connection for a psychiatric disorder is denied; the appeal is dismissed for lack of jurisdiction. ORDER The Veteran did not file a timely notice of disagreement with the May 1986 rating decision and the appeal is dismissed. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs