Citation Nr: 1502735 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 12-29 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date prior to November 23, 2010 for the grant of service connection for posttraumatic stress disorder (PTSD) with chronic alcoholism. 2. Entitlement to an effective date prior to June 16, 2011 for the grant of service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and daughter ATTORNEY FOR THE BOARD R. Giannecchini INTRODUCTION The Veteran had active military service from March 1968 to January 1970. The present matters come to the Board of Veterans' Appeals (Board) on appeal following February 2011 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2014, the Board remanded this case for the purpose of scheduling a hearing. In September 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing. By way of history, in the above February 2011 decision, the RO granted service connection and assigned a 10 percent evaluation for PTSD with chronic alcoholism. The grant of service connection was effective November 23, 2010. Thereafter, in a June 2013 rating, the RO increased the Veteran's disability rating to 50 percent for PTSD with chronic alcoholism effective May 11, 2012. Otherwise, in a July 2012 rating decision the RO granted service connection and assigned a 20 percent evaluation for diabetes mellitus, type II. The effective date of the award was June 16, 2011. In an October 2012 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran expressed disagreement with the RO's rating award. While not entirely clear, the Board construes the Veteran's argument as expressing disagreement with the assigned effective date for the grant of service connection for diabetes mellitus, Type II. A statement of the case (SOC) has not been issued. Also, the Board notes that in a January 2005 rating decision, the RO denied the Veteran's claims for service connection for an enlarged heart, for an irregular heartbeat, for migraine headaches, for breathing problems, as well as for herbicide and asbestos exposure. Later, in a November 2005 rating decision, the RO denied the Veteran's claims for service connection for colon cancer and for hypertensive vascular disease (HTN). The Veteran appealed the RO's decisions with respect to the denied claims and the RO issued February 2006 and September 2008 SOCs, respectively. A review of the claims folder does not reflect a timely substantive appeal has been filed with respect to either SOC. As such, none of the identified claims is currently in appellate status. Finally, the Board notes that the Veteran served in Vietnam. In a May 2011 rating decision the RO in St. Paul, Minnesota denied the Veteran's claim for service connection for ischemic heart disease (claimed as an enlarged heart, heart disease, and cardiomyopathy). There is no indication from the claims folder that the Veteran appealed that decision. During the above September 2014 Board hearing, the Veteran's daughter testified that the Veteran had undergone quadruple bypass surgery and had been in the intensive care unit (ICU) for 14 days. She did not further elaborate on the cause for the surgery. The Board notes that quadruple bypass surgery may be performed in some cases as a result blocked coronary arteries. While the issue of service connection for ischemic heart disease is not currently before the Board, if the Veteran has any evidence demonstrating a diagnosis of ischemic heart disease and/or coronary artery disease (CAD), he is encouraged to submit such evidence supporting a reopening of his claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's original claim of service connection for PTSD was received by the RO on March 28, 2005. By a November 22, 2005 rating decision, the RO denied the Veteran's claim. In a December 7, 2005 letter, the Veteran was notified of the denial of his claim as well as his appellate rights. Although notified of RO's decision the Veteran did not initiate an appeal; moreover, no pertinent evidence was received within one year following notification of the denial and no additional service records were received at any point, warranting readjudication of the claim of service connection for PTSD. See 38 C.F.R. § 3.156(b), (c) (2014). Hence, the denial of the claim of service connection for PTSD became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). On November 23, 2010 the RO received a statement from the Veteran requesting that his claim of service connection for PTSD be reopened. Subsequently, as noted above, in a February 2011 rating decision, the RO granted service connection for PTSD and chronic alcoholism and assigned a 10 percent rating effective November 23, 2010, the date the reopened claim for service connection was received. The Veteran contends that the effective date of the award of service connection for PTSD with chronic alcoholism should be the date of his original claim for service connection for the disability, that being March 28, 2005. Generally, except as otherwise provided, 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 later. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014). In the present case, the Veteran failed to file a timely notice of disagreement (NOD) to the November 22, 2005 adverse rating decision addressing his claim of service connection for PTSD. Since the Veteran did not file a timely NOD the rating decision became final; as such, it is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 5109A, 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). Otherwise, the effective date of a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). The Veteran's representative has not made any CUE argument related to the Veteran's claim nor was a CUE claim raised or discussed at the September 2014 Board hearing. Otherwise, the Veteran has frequently used the phrase "unmistakenly and error of law and fact" in his arguments. On February 22, 2011, a statement from the Veteran was received by the RO in which the Veteran commented regarding his PTSD award. In particular, the statement reads in part: . . . and requested and asked for a reconsideration on grounds of prejudice and/or unmistakenly error of law and facts on the disability rating decision in which the veteran first filed this his claimed service-connected disability on the (3-22-05) in which this would be the effective [date] . . . While not entirely clear, the Board's liberal reading of the Veteran's statement evidences an apparent intent on his part to allege CUE in the November 22, 2005 rating decision which denied his claim of service connection for PTSD. At the same time, the Board is aware that the Veteran later, in a May 31, 2011 statement (VA Form 21-4138), also uses the above operative language ("unmistakenly error of law and facts") in reference to the February 10, 2011 rating decision which granted his initial PTSD award. Notwithstanding that fact, the Board accepts that the Veteran has alleged CUE in the November 22, 2005 rating decision. Thus, if VA determines that the November 22, 2005 rating decision contains CUE, the decision would no longer be final. For the purposes of authorizing benefits, a reversal of the November 22, 2005 decision on the grounds of CUE would have the same effect as if the correct decision had been made on the date of the reversed decision. If VA determines that the November 22, 2005 rating decision contains CUE, an earlier effective date could be assigned. [Parenthetically, the Board notes that its decision in this case finding a raised claim of CUE is based on its interpretation of the Veteran's February 22, 2011 statement and not otherwise due to fault by the RO.] The Veteran's CUE challenge to the November 22, 2005 rating decision is thus inextricably intertwined with his effective date claim now before the Board, because finality presumes the absence of CUE. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (if a prior adjudication contains CUE, it did not become final). As such, a favorable determination on the CUE claim could significantly impact the outcome of the claim for an earlier effective date for the grant of service connection for PTSD now on appeal. Thus, the Board finds it necessary to defer consideration of the currently perfected appeal for entitlement to an effective date prior to November 23, 2010 for the grant of service connection for PTSD with chronic alcoholism until the RO adjudicates, in the first instance, the Veteran's CUE challenge. Also, as noted previously, the Board liberally construes the Veteran's argument in an October 2012 VA Form 9 as demonstrating disagreement with the July 2012 rating decision and the assigned effective date for the grant of service connection for diabetes mellitus, type II (June 16, 2011). An SOC has not been issued in response to the Veteran's NOD. Thus, a remand of this issue is necessary to accord the RO an opportunity to issue an SOC and to accord the Veteran an opportunity to perfect an appeal of this issue. 38 C.F.R. § 19.9(c) (2014); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issue should be returned to the Board if, after issuance of an SOC, the Veteran perfects a timely appeal of the claim by filing of a timely substantive appeal. Finally, the Veteran requested the RO obtain his Social Security Administration (SSA) records in relation to his claim for entitlement to a total disability rating based on individual unemployability (an issue not in appellate status). In August 2008, the SSA notified the RO that no medical records were available and that the Veteran either "did not file for disability benefits" or that he filed for benefits "but no medical records were obtained." The Veteran was notified that the SSA records had not been obtained in a subsequent SOC. Also, during his testimony before the undersigned, the Veteran reported that in 2005 he had been prescribed antidepressants by the VA and talked with a VA psychiatrist. Those 2005 VA treatment records associated with the claims folder are dated January 2005 to October 2005 as well as in December 2005. They do not reflect any such treatment nor are antidepressants included in the Veteran's prescribed medications list. Additionally, the Veteran's VA medical "problem list" also does not reflect a diagnosis for any psychiatric disorder, such as depression or PTSD. In light of the need to remand the Veteran's case, it would be helpful to the Board if the RO notified the Veteran that none of his VA medical records dated in 2005 reflect appointments or treatment with a psychiatrist nor do his medication lists during this period reflect his use of antidepressants. He should be requested, therefore, to submit any relevant VA records in his possession pertaining to his reported psychiatric treatment or medication usage in 2005 or provide the RO with the specific dates of any such VA treatment during that period. It would also be helpful to the Board if the RO notified the Veteran that his SSA records were not available for review and that he may wish to obtain the records himself and submit them to VA. 38 C.F.R. § 3.159(e) (2014). Accordingly, the case is REMANDED for the following action: 1. Conduct an additional review of the CAPRI records system for VA records in the year 2005 for the purpose of identifying the Veteran's reported mental health appointments or treatment, to include antidepressant medication use. 2. If no additional relevant VA records are located, notify the Veteran that his VA medical records from 2005 do not reflect appointments or treatment with a VA mental health clinician nor does his medication list during this period reflect that he was prescribed antidepressants. The Veteran should be invited to submit relevant VA records from 2005 in his possession revealing such appointments or treatment with a VA mental health clinician or showing his usage of antidepressant medication. He should also be invited to provide the RO with the specific dates of his VA psychiatric appointments/treatment with a mental health clinician so that an additional search for such record(s) may be undertaken. If any such records identified by the Veteran are found unavailable, he should be notified of this fact in accordance with 38 C.F.R. § 3.159(e). At the same time, the RO should also notify the Veteran that identified records from the SSA were not available, and he should be invited to submit those records to the RO. 3. The Veteran should be provided with a statement of the case (SOC) pertaining to the issue of entitlement to an effective date prior to June 16, 2011 for the grant of service connection for diabetes mellitus, type II. The Veteran should be informed that he must perfect the appeal if he wishes a review by the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If a timely substantive appeal is filed, the claim should be returned to the Board for further appellate consideration, as appropriate, and subject to the current appellate procedures. 4. The RO should adjudicate the issue of clear and unmistakable error (CUE) in the November 22, 2005 rating decision and the denial of the Veteran's claim for service connection for PTSD. 5. Then, the RO should readjudicate the issue of an effective date prior to November 23, 2010 for the grant of service connection for PTSD with chronic alcoholism. 6. If any of the benefit sought is denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran 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). This claim 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 2014). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).