Citation Nr: 1317080 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-37 044A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether the Veteran has filed a timely notice of disagreement (NOD) with respect to the April 2008 rating decision that granted service connection for a low back disorder and assigned a 40 percent rating effective from October 1, 2007. 2. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for asthma and assigned a 30 percent rating effective from October 1, 2007. 3. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating effective from October 1, 2007. 4. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for a right knee disorder and assigned a 10 percent rating effective from October 1, 2007. 5. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for a left knee disorder and assigned a 10 percent rating effective from October 1, 2007. 6. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for a right ankle disorder and assigned a 10 percent rating effective from October 1, 2007. 7. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for a left ankle disorder and assigned a 10 percent rating effective from October 1, 2007. 8. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for a right shoulder disorder and assigned a 10 percent rating effective from October 1, 2007. 9. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for a left shoulder disorder and assigned a 10 percent rating effective from October 1, 2007. 10. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for bilateral pes planus and assigned a 10 percent rating effective from October 1, 2007. 11. Whether the Veteran has filed a timely NOD with respect to the April 2008 rating decision that granted service connection for hypertension and assigned a 10 percent rating effective from October 1, 2007. 12. Entitlement to an initial disability rating in excess of 40 percent for low back disorder October 1, 2007, and in excess of 20 percent from May 21, 2009. 13. Entitlement to initial and separate disability ratings in excess of 30 percent for asthma from October 1, 2007. 14. Entitlement to an initial disability rating in excess of 30 percent for PTSD from October 1, 2007, and in excess of 50 percent from April 20, 2009. 15. Entitlement to an initial disability rating in excess of 10 percent for right knee lost motion from October 1, 2007, and in excess of 20 percent from April 20, 2009. 16. Entitlement to an initial disability rating in excess of 10 percent for right knee laxity from April 20, 2009. 17. Entitlement to an initial disability rating in excess of 10 percent for a left knee disorder from October 1, 2007. 18. Entitlement to an initial disability rating in excess of 10 percent for a right ankle disorder from October 1, 2007. 19. Entitlement to an initial disability rating in excess of 10 percent for a left ankle disorder from October 1, 2007. 20. Entitlement to an initial disability rating in excess of 10 percent for a right shoulder disorder from October 1, 2007. 21. Entitlement to an initial disability rating in excess of 10 percent for a left shoulder disorder from October 1, 2007. 22. Entitlement to an initial disability rating in excess of 10 percent for pes planus from October 1, 2007. 23. Entitlement to an initial disability rating in excess of 10 percent for hypertension from October 1, 2007. 24. Entitlement to an initial combined disability rating in excess of 50 percent for sleep apnea with asthma from October 1, 2007. 25. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from October 1, 2007, to April 19, 2009. ATTORNEY FOR THE BOARD Neil T. Werner, Counsel INTRODUCTION The Veteran served on active duty from December 1995 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008, May 2008, and May 2009 decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. In May 2010, the Veteran withdrew his request for a hearing at the RO before a local hearing officer and in March 2013 he failed to appear for a hearing that was scheduled before a Veteran's Law Judge traveling to the RO. Therefore, the Board considers his hearing requests withdrawn. In statements in support of the claims, the Veteran alleged, in substance, that his serviced connected disabilities prevented him from working. Therefore, the Board finds that the record raises a claim for a TDIU for the period from October 1, 2007, to April 19, 2009. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on TDIU the appellant claims he is unable to work due to a service connected disability). The claims for higher initial disability ratings from October 1, 2007, for the low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, hypertension, and sleep apnea as well as the claim for a TDIU for the period from October 1, 2007, to April 19, 2009, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On April 10, 2008, the RO mailed to the Veteran's notice of the rating decision it had issued earlier that month that granted service connection for a low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, and hypertension and granted initial disability ratings effective from October 1, 2007. 2. Resolving all reasonable doubt in his favor, the Board finds that the most competent and credible evidence of record shows that on February 2, 2009, the Veteran mailed to the RO statements that acted as a timely NOD as to the initial ratings granted the claimant for his low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, and hypertension in the April 2008 rating decision. CONCLUSIONS OF LAW 1. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a low back disorder and assigned a 40 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 2. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for asthma and assigned a 30 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 3. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for PTSD and assigned a 30 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 4. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a right knee disorder and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 5. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a left knee disorder and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 6. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a right ankle disorder and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 7. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a left ankle disorder and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 8. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a right shoulder disorder and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 9. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a left shoulder disorder and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 10. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for bilateral pes planus and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). 11. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for hypertension and assigned a 10 percent rating effective from October 1, 2007. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The Board is finding that the Veteran filed a timely NOD as to the April 2008 rating decision that granted service connection for a low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, and hypertension and assigned initial evaluations effective from October 1, 2007. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Timeliness Claims The Veteran maintains that he filed a timely NOD as to the April 2008 rating decision that granted service connection for a low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, and hypertension and assigned initial evaluations effective from October 1, 2007. Specifically, the Veteran in an August 2009 statement as well as at his May 2010 Decision Review Officer (DRO) conference notified the RO that in February 2009 he placed in the possession of the United States Postal Service a statement that acted as his timely NOD as to all of the above rating claims. In support of his claim, the Veteran provided the RO with a copy of a United States Postal Service Express Mail receipt dated February 3, 2009, that was address to the Department of Veterans Affairs. He also explained that the statement/NOD that the RO marked as received on April 30, 2009, was a second mailing of the earlier February 2009 NOD. As to what constitutes a NOD, the United States Court of Appeals for Veterans Claims (Court) has said that the Board determines de novo whether a document is an NOD. See Fenderson v. West, 12 Vet. App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996). In this regard, an NOD is a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudication(s). 38 C.F.R. § 20.201. A NOD requires no special wording or phrasing and is to be evaluated within the context of the overall record. Id; see also Jarvis v. West, 12 Vet. App. 599, 561-62 (1999). As to what constitutes a timely NOD, applicable regulations provide that it must be filed within one year of the agency of original jurisdiction providing the claimant with notice of the determination otherwise the decision(s) will become final, absent an applicable provision to the contrary. See 38 U.S.C.A. § 7105(b); 38 C.F.R. § 20.302(a). As to when an NOD is considered received by the RO, 38 C.F.R. § 20.305(a) (the 'mailbox rule') provides that a response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the mailbox rule applies and the postmark date will be presumed to be 5 days prior to the date of receipt of the document by VA. In calculating this 5 day period, Saturdays, Sundays, and legal holidays will be excluded. Id. Regulations also provide that the one year does not include the date the claimant receives notification of the AOJ determination but does include the last date of the one year period. See 38 C.F.R. § 20.305(b). In addition to this regulatory mailbox rule, there is a common law mailbox rule which creates a presumption that a document was received by the intended recipient where evidence shows that the document was delivered into the custody of the United States Postal Service. See Savitz v. Peake, 519 F.3d 1312, 1315-16 (Fed. Cir. 2008) (noting that the common law mailbox rule is properly considered in the context of determining if a notice of disagreement is timely); Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007). Initially, the Board finds that the statement/NOD that the RO marked as received on April 30, 2009, meets the regulatory criteria for an NOD as to the claims for higher initial ratings for a low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, and hypertension because it is a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudications. 38 C.F.R. § 20.201. Therefore, the only question remaining for the Board to consider is if the RO received the NOD on or before April 10, 2008 (i.e., within one year of it mailing the Veteran notices of the April 2008 rating decision). In this regard, the NOD, which is not dated and which is not accompanied by its envelope, is date stamped as having been received by the RO on April 30, 2009. On the other hand, the Veteran reported that he placed the NOD into the custody of the United States Postal Service in February 2009 and provided VA with a copy of a United States Postal Service Express Mail receipt dated February 2, 2009, that was addressed to the Department of Veterans Affairs. Moreover, the Board finds that the Veteran is competent and credible to report on what he can see such as placing into the envelope that he mailed to the RO on February 2, 2009, the first copy of the NOD. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran placed into the custody of the United States Postal Service his NOD on February 2, 2009, is at least in equipoise. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2012). Accordingly, because the common law mailbox rule creates a presumption that the NOD was thereafter received by the RO, the Board finds that the most competent and credible evidence of record shows that the NOD, which was mailed on February 2, 2009, was received by the RO before April 10, 2009, and the appeal is granted. See Savitz, supra. ORDER A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a low back disorder and assigned a 40 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for asthma and assigned a 30 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for PTSD and assigned a 30 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a right knee disorder and assigned a 10 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a left knee disorder and assigned a 10 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a right ankle disorder and assigned a 10 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a left ankle disorder and assigned a 10 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a right shoulder disorder and assigned a 10 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for a left shoulder disorder and assigned a 10 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for bilateral pes planus and assigned a 10 percent rating effective from October 1, 2007. A timely NOD was received by VA to the April 2008 rating decision that granted service connection for hypertension and assigned a 10 percent rating effective from October 1, 2007. REMAND As to the claims for higher initial disability ratings from October 1, 2007, for the low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, and hypertension, as explained above, the Veteran filed a timely NOD as to the April 2008 rating decision. Therefore, the Board finds that a remand is required for an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). As to the claim for an initial combined rating in excess of 50 percent for sleep apnea with asthma from October 1, 2007, the Board finds that adjudication of this issue is inextricably intertwined with the Veteran's outstanding claim for a higher separate rating for asthma. Therefore, the Board finds that adjudication of this claim must be held in abeyance until after the RO adjudicates that claim and, if denied, the time to appeal has run. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). In this regard, the Board notes that the Veteran has not challenged the finding of clear and unmistakable error (CUE) by the RO in the July 2011 rating decision regarding separate ratings having been assigned for his asthma and sleep apnea. As explained above, the record raises a claim for a TDIU for the period from October 1, 2007, to April 19, 2009. See Rice, supra. However, the Board finds that the TDIU issue is not as yet fully developed for appellate review. Specifically, the Board notes that the Veteran has not been provided with notice of the laws and regulations governing a TDIU or an examination to obtain an opinion as to whether her service connected disabilities prevented him from working. See 38 U.S.C.A. §§ 5103(a), 5103A(b) (West 2002); 38 C.F.R. § 19.31; McLendon, supra; Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the Board finds that a remand for such development is required. As to all the issues on appeal, the record shows that the Veteran receives ongoing treatment from a number of healthcare providers including the Charleston VA Medical Center, Pain Management Center, and Palmetto Pulmonary Medicine as well as the U.S. Naval Hospital in Beaufort. However, his post-2009 treatment records do not appear in the claims file. Similarly, while the Veteran reported that received treatment at a Beaufort VA Medical Center, these records are not found in the claims file. Therefore, while the appeal is in remand status these records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(d); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, these issues are REMANDED to the RO/AMC for the following actions: 1. The RO/AMC shall obtain and physically or electronically associate with the claims file all of the Veteran's post-2009 treatment records from the Charleston VA Medical Center and the U.S. Naval Hospital in Beaufort as well as all of his records from any Beaufort VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC shall, after obtaining all needed authorizations from the Veteran, physically or electronically, associate with the claims file all of his post-2009 private treatment records from the Pain Management Center and Palmetto Pulmonary Medicine. All actions to obtain the requested records must be documented fully in the claims file. 3. The RO/AMC shall provide the Veteran with notice of the laws and regulations governing a TDIU in accordance with 38 U.S.C.A. § 5103A (West 2002). 4. After undertaking the above development to the extent possible, the RO/AMC shall provide the Veteran with a TDIU examination. The claims file should be provided to the examiner in connection with the examination. All indicated tests and studies deemed appropriate by the examiner must be accomplished and all clinical findings should be reported in detail. The examiner should provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his service connected disabilities. The examiner should thereafter provide an opinion as to whether it is at least as likely as not that the Veteran's service connected disabilities prevented him from engaging in substantially gainful employment at any time from October 1, 2007, to April 19, 2009. In providing an answer to the above question, the examiner is instructed to ignore the effects of age and any non-service connected disabilities. In providing an answer to the above question, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of his service connected disabilities even when his records are negative for symptoms. If the examiner cannot provide an answer to the above question, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 5. As to the claims for higher initial evaluations from October 1, 2007, for the low back disorder, asthma, PTSD, knee disorders, ankle disorders, shoulder disorders, bilateral pes planus, and hypertension, the RO/AMC shall issue the Veteran a SOC. These issues should only be returned to the Board if the Veteran thereafter perfects his appeal by filing a timely Substantive Appeal. 6. After the time to appeal has run to adjudicate the above initial rating claims, which adjudication should must take into account the July 2011 finding, the RO/AMC shall readjudicate the claim for a higher initial and combined rating in excess of 50 percent for sleep apnea with asthma from October 1, 2007, as well as the claim for a TDIU for the period from October 1, 2007, to April 19, 2009. If any benefit sought on appeal remains denied, the RO/AMC shall issue a supplemental statement of the case to the Veteran that includes notice of all relevant the laws and regulations including those governing a TDIU. After providing an opportunity to respond, return these issues to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs