Citation Nr: 1423971	
Decision Date: 05/28/14    Archive Date: 06/06/14

DOCKET NO.  11-30 475	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota


THE ISSUES

1.  Entitlement to service connection for a lung disability, diagnosed as obstructive chronic bronchitis.

2.  Entitlement to an initial rating in excess of 10 percent for tinnitus.

3.  Entitlement to an initial compensable rating for bilateral hearing loss disability.

4.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 70 percent disabling.

5.  Whether a Notice of Disagreement (NOD) was timely filed with respect to a December 2009 rating decision that awarded service connection and a 50 percent rating for PTSD.




REPRESENTATION

Appellant represented by:	Mac Schneider, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. R. Fletcher


INTRODUCTION

The Veteran served on active duty from September 1968 to June 1971, to include service in the Republic of Vietnam. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2009 and August 2011 rating decisions of the Fargo Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified at a travel Board hearing before the undersigned in June 2012.  A transcript of the hearing is of record.  At the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence.  In August 2012 the Veteran submitted private insurance records.  RO consideration of this evidence was waived by the Veteran's attorney during the June 2012 hearing.  See 38 C.F.R. § 20.1304 (2013).  Therefore, the Board may properly consider such newly received evidence


In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim.  Documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issues of entitlement to service connection for a lung disability, entitlement to an initial compensable rating for bilateral hearing loss disability and entitlement to an increased rating for PTSD, currently evaluated as 70 percent disabling, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on his part is required.


FINDINGS OF FACT

1.  On the record at the June 2012 hearing, prior to the promulgation of the Board's decision in the appeal, the Veteran withdrew his appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent rating for tinnitus.

2.  On December 14, 2009, the RO mailed notification to the Veteran of its December 2009 rating decision that (in pertinent part) awarded service connection for PTSD, and assigned a 50 percent rating for such disability.

3.  An NOD with the rating assigned for PTSD in the December 2009 rating decision was not received on or prior to December 14, 2010.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal for the issue of entitlement to an initial rating in excess of 10 percent rating for tinnitus by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.202, 20.204 (2013).

2.  The Veteran did not submit a timely NOD with respect to the rating assigned for PTSD in a December 2009 rating decision.  38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.300, 20.301, 20.302 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Tinnitus

An appellant may withdraw an appeal in writing or on the record at a hearing on appeal at any time before the Board promulgates a final decision.  38 C.F.R. § 20.204.  When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law.  Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal.  38 U.S.C.A. §§ 7104, 7105(d). 

At the June 2012 hearing (as reflected in the transcript), the Veteran withdrew his appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent rating for tinnitus.  This is certainly permissible under the Board's rules of practice.  See 38 C.F.R. § 20.204.  Given the Veteran's clear intent to withdraw his appeal in this matter, further action by the Board on this issue would not be appropriate.  38 U.S.C.A. § 7105.

Timeliness of NOD 

The Board has jurisdiction over appeals involving benefits under the laws administered by VA.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  The appeal of an issue to the Board requires a timely-filed NOD and following the issuance of a Statement of the Case (SOC), a timely-filed Substantive Appeal.  38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. 

A written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute an NOD.  While special wording is not required, the NOD must be in terms that can be reasonably construed as expressing disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201. 

Ordinarily, the NOD must be filed within one year from the date of mailing of the notice of the result of the initial review or determination.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a).  The NOD must be filed with the VA office that entered the determination with which disagreement has been expressed.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.300. 

In the present case, on December 14, 2009, the RO mailed notification to the Veteran of its December 2009 decision that (in pertinent part) awarded service connection for PTSD, and assigned a 50 percent rating for such disability.  No statement challenging the rating assigned for PTSD was received on or before December 14, 2010.  (While a statement was received from the Veteran in August 2010, this statement specifically expressed disagreement with issues pertaining to tinnitus, hearing loss disability and bronchitis.  No mention was made of PTSD.)  The Veteran was not rated incompetent by VA, nor is there any evidence that he had a physical, mental, or legal disability which prevented the filing of an appeal on his own behalf. 

In September 2011, the Veteran submitted a statement regarding the increased severity of his PTSD.  In a November 2011 letter, the RO informed the Veteran that because this statement was not received within one year of the notification of the December 2009 rating decision, it was not a timely NOD as to that decision. 

The Board finds that the appellant did not timely file a NOD with the December 2009 rating decision.  No document was received on or before December 14, 2010, that could be construed as an NOD as defined in 38 C.F.R. §§ 20.201, 20.300, 20.301, 20.302.  The Veteran's attorney argues that the statement received in August 2010 may be construed as an NOD, essentially because it contains the statement, "I respectfully reserve the right to raise other issues related to my service-connected disabilities prior to the consideration of my appeal."  However, he never did so prior to the expiration of the appeal period.  Nor did he request an extension of time pursuant to 38 C.F.R. § 3.109(b).  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.  Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002).  The December 2009 rating decision, therefore, became final as to the PTSD issue.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104 , 20.302, 20.1103.

Since the law is dispositive in this matter, the claim must be denied because of the lack of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Finally,  the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.. At issue is whether the Veteran filed a timely NOD.  The facts in this matter are not in dispute.  The United States Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). 






ORDER

The appeal for entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed.

The appeal to establish that the Veteran timely filed a NOD with respect to a December 2009 rating decision that awarded service connection and a 50 percent rating for PTSD is denied.


REMAND

Lung Disability

In the October 2009 VA opinion addressing the etiology of the Veteran's lung disability, the VA examiner reported that he did not review the Veteran's claims file.  The development of facts includes a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, VA adjudication regulations and guidelines provide that "if [an examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."  38 C.F.R. § 4.2.  See also Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); Green v. Derwinski, 1 Vet. App. 121 (1991). On remand, a new opinion should be obtained.

Hearing Loss Disability

The most recent VA examinations to determine the degree of severity of the Veteran's service-connected hearing loss disability was performed in August 2011.  During the June 2012 hearing, the Veteran testified that his hearing loss had gotten worse since that time.  Therefore, the Veteran should be scheduled for an examination to determine the current severity of his service-connected hearing loss disability.  See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  As a part of the examination, the examiner should address the impact of the Veteran's hearing loss disability on daily activities (including employment).  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Additionally, this examination should be scheduled after the AOJ obtains and associates with the claim file all outstanding treatment records pertinent to this issue.  


PTSD

One of the matters the Board must address is which issue or issues are properly before the Board.  An appeal to the Board is initiated by an NOD and completed by a substantive appeal after an SOC is furnished.  In essence, the following sequence is required:  There must be a decision by the RO; the claimant must timely express disagreement with the decision; VA must respond by issuing an SOC; and finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202 and 20.203.

A November 2011 rating decision awarded an increased (70 percent) rating for PTSD, effective April 14, 2011.  The Veteran was notified of this rating decision in November 2011.  In June 2012, the Veteran provided testimony that he is entitled to a higher rating for his PTSD.  This testimony is considered a timely NOD as to the November 2011 rating decision.  However, the record before the Board does not show that the Veteran has been provided an SOC in response to the NOD.  Because the NOD placed the issue in appellate status, the matter must be remanded for the originating agency to issue an SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

Accordingly, the case is REMANDED for the following action:

1.  Issue an SOC to the Veteran and his attorney addressing the issue of entitlement to an increased rating for PTSD.  Also inform them of the requirements to perfect an appeal with respect to the new issue.
 
2.  Contact the Veteran and obtain the names and addresses and approximate dates of treatment of all medical care providers, VA and non-VA that treated him for hearing loss disability since August 2011.  After the Veteran has signed the appropriate releases, those records not already in the claims file should be obtained and associated with the claims file. 

Regardless as to whether or not he responds, a specific search should be conducted for VA medical records for this period, as the Veteran has indicated that he would be seeking care/treatment to the VA facility closest to his home.

All attempts to procure records should be documented in the file.  If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file.  The Veteran and his attorney are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3.  Then, afford the Veteran an audiology examination to determine severity of his bilateral hearing loss disability.  The claims file should be available to, and reviewed by, the examiner in conjunction with the examination.  Ensure that the examiner provides all information required for rating purposes.  The examiner must address the impact of the Veteran's hearing loss on his daily activities, including particularly on his ability to work. 

The rationale for each opinion expressed must also be provided.

4.  Obtain an opinion as to the etiology of the Veteran's lung disability from a qualified VA medical professional.  An examination should only be scheduled if the medical professional deems it necessary. 

Review the Veteran's claims file and determine whether the Veteran's lung disability at least as likely as not (50 percent or more probability) was incurred in or aggravated by service, to include herbicide exposure presumed to have occurred therein. 

The opinions must be based on a review of the entire claims file and contain a complete rationale.  Consideration of the Veteran's statements that he has had symptoms of a lung disability since service should be addressed.

If an opinion cannot be provided without resorting to mere speculation, then a detailed medical explanation as to why causation is unknowable must be provided.

5.  The Veteran must be given adequate notice of the date and place of any requested examination.  A copy of all notifications, including the address where the notice was sent, must be associated with the claims file if the Veteran fails to report for the examination.  The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim.

6.  Thereafter, readjudicate the remanded claims.  If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his attorney should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 

By this remand, the Board intimates no opinion as to any final outcome warranted. 

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs