Citation Nr: 1602769 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 10-08 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether the Veteran timely filed a notice of disagreement (NOD) with decisions denying him entitlement to service connection for a nerve condition of the bilateral feet. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 4. Entitlement to service connection for sleeping problems, to include sleep apnea, claimed as secondary to tinnitus and/or PTSD. REPRESENTATION Appellant represented by: Robert B. Goss, Attorney WITNESSES AT HEARING ON APPEAL Veteran & Spouse ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 2002 to September 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for tinnitus, sleeping problems, and a mental condition (claimed as loss of focus), and from an April 2010 determination by the Waco, Texas RO that the Veteran had not filed a timely NOD with an October 2007 rating decision, which denied service connection for a nerve condition of the bilateral feet. The Veteran's claims file is now in the jurisdiction of the Houston, Texas RO. In July 2011, a hearing was held before a Decision Review Officer (DRO) at the RO. In July 2015, a Travel Board hearing was held before the undersigned. Transcripts of these hearings are associated with the Veteran's claims file. In July 2015 and in September 2015, the Veteran's attorney submitted additional evidence in conjunction with the Veteran's claim. A waiver of initial Agency of Original Jurisdiction (AOJ) consideration was submitted for the aforementioned evidence in July 2015 and in November 2015, respectively. See 38 C.F.R. § 20.1304(c) (2015). Also as an initial matter, the Board notes that the U.S. Court of Appeals for Veterans Claims (Court) has stated that separate diagnoses do not always mean separate claims, and has instead explained that the proper scope of a claim must be determined by the layperson's intent. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the Board notes that in December 2007, the Veteran filed a claim for service connection for "trouble sleeping" and for "loss of focus," which was adjudicated as a claim for service connection for a mental condition. However, in subsequent statements (to include his testimony at the July 2015 Travel Board hearing), the Veteran has stated that he is also requesting consideration for service connection for PTSD and sleep apnea. The record additionally reflects that the Veteran has been given other psychiatric diagnoses, such as a depressive disorder, adjustment disorder with depressed mood, and attention deficit hyperactivity disorder (ADHD). Accordingly, the Board has recharacterized the Veteran's claims of service connection for "trouble sleeping" and for "loss of focus," as claims for service connection for an acquired psychiatric disorder, to include PTSD and depression, and for sleeping problems, to include sleep apnea, as indicated on the first page. Finally, a review of the aforementioned September 2015 submission from the Veteran's attorney shows that in the associated supplemental legal argument, he concluded his arguments by stating, "This new medical evidence shows the progressing deterioration and disease of multiple sclerosis." Multiple sclerosis is not one of the issues currently on appeal before the Board, and the record does not show that the Veteran previously requested service connection for that disability. It is unclear from the attorney's statement as to whether the Veteran is intending to do so at this time. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014); 38 C.F.R. § 3.155(a) (2015). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). In light of the foregoing, the Veteran's claim seeking service connection for multiple sclerosis is referred to the AOJ for clarification and any appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, and for sleeping problems, to include sleep apnea, claimed as secondary to tinnitus and/or PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The record contains competent evidence indicating that the Veteran's tinnitus became manifest to a compensable degree within one year following his separation from service. 2. On October 31, 2007, the RO mailed notification to the Veteran of its October 2007 decision that denied service connection for a nerve condition of the bilateral feet. 3. The Veteran did not file an NOD within one year of being notified of the October 2007 rating decision; statements received in July 2009 and in February 2010 are not timely NODs. 4. The Veteran was not rated incompetent by VA, and is not shown to have had a physical, mental, or legal disability which prevented the timely filing of an NOD on his own behalf; he has not presented good cause for his failure to timely file an NOD in his challenge to the October 2007 rating decision. CONCLUSIONS OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 2. The Veteran did not timely file a notice of disagreement with the October 2007 rating decision denying service connection for a nerve condition of the bilateral feet, and has provided VA no good cause to waive timeliness of an NOD in the matter; therefore, the Board does not have jurisdiction to consider the matter on the merits. 38 U.S.C.A. §§ 5107, 7104, 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board concludes that VA notification requirements are satisfied. In particular, the decision below grants the Veteran's claim for service connection for tinnitus. Therefore, there is no reason to belabor the impact of the VCAA on that matter, as any notice defect or duty to assist failure is harmless. With respect to the Veteran's appeal of the determination that he did not file a timely NOD with the October 2007 rating decision, which denied service connection for a nerve condition of the bilateral feet, as will be discussed in greater detail below, in October 2007, the RO issued a rating decision denying service connection for a nerve condition of the bilateral feet. In the accompanying October 2007 notification letter, the RO notified the Veteran of the time limit for filing an NOD. An April 2010 letter informed him that he had not complied with these time limits and told him how he could appeal the determination that his appeal was untimely. A September 2010 statement of the case (SOC) explained why his July 2009 NOD was not considered timely filed. The evidentiary record in the matter of timeliness is complete; the critical facts are determined by what was already received for the record (and when). II. Legal Criteria, Factual Background, and Analysis Service connection for tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for a claimed disability, there must be evidence of (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the claimed disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as 'chronic' in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Similarly, where as in this case, there is evidence of acoustic trauma, tinnitus is considered a "chronic disease" under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Certain chronic diseases, to include tinnitus (as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran seeks service connection for tinnitus. It is his contention that the ringing he now experiences in his ears is related to the acoustic trauma to which he was exposed in service. Specifically, he stated at the July 2015 Travel Board hearing that he was exposed to loud noises in service while serving as a range master on a firing line, from being a weapons expert in charge of all the bombs, and from riding in helicopters. The Veteran's service personnel records show that he served in the U.S. Navy as a utility air crewman. Therefore, it is conceded that the Veteran likely was exposed to some acoustic/noise trauma while in service. What remains to be established is that the Veteran's current tinnitus is related to his service, to include his exposure to acoustic/noise trauma therein. The Veteran's service treatment records, to include his September 2006 service separation report of medical examination and report of medical history, are silent for any complaints, findings, treatment, or diagnosis of tinnitus. He did, however, report on his September 2006 separation report of medical history that he felt his hearing had degraded. To support his claim of service connection for tinnitus, the Veteran submitted an October 2010 private opinion from Dr. C.N.B., who opined that the Veteran's tinnitus was related to his noise exposure in service. Dr. C.N.B. explained that the Veteran's tinnitus was consistent with noise-induced ringing and that the record "did not support another more likely cause for his advanced for age tinnitus . . . ." The Veteran was also afforded VA examinations in September 2007 and May 2008. At the September 2007 VA examination, the Veteran reported having "frequent pulsating tone[s] in the right ear," which he had noted "over the last four months." He stated he noticed the tone in quiet areas like in class and at bedtime, and that they occur daily, lasting 10-15 seconds. After a physical examination, the examiner opined: Reported ringing in the ears is not as persistent as the type typically associated with loud noise exposure and permanent hearing loss. Review of military medical records documented normal hearing throughout military service, with no significant hearing threshold shift. Tinnitus was denied after deployment [in April 2004]. Due to findings of normal hearing, onset of tinnitus in the last four months after release from military duty, normal otoacoustic emissions, and denial of tinnitus [on] post deployment questionnaire, it is less likely tha[n] not tinnitus is caused by military noise exposure. On May 2008 VA examination, the examiner reviewed the claims file, to include the report of the September 2007 VA examination report. The examiner also received an updated history from the Veteran, wherein he reported now experiencing bilateral ringing in his ears for about 5-10 seconds each day. The examiner stated that this head noise was "consistent with normal cochlear function and not significant for the diagnosis of tinnitus." The examiner further stated, "[The Veteran] reported a bilateral, frequent, moderate ringing tinnitus since 2006. Due to normal hearing in the ears and no reported history of middle ear pathology, etiology of this ear/head noise cannot be determined. Veteran's reported onset of tinnitus was after military service. Any tinnitus . . . is less likely than not related to military service." The Board has reviewed the foregoing medical evidence, as well as the statements from the Veteran. Despite the negative opinions from the September 2007 and May 2008 VA examiners, the Board notes that the evidence (to include the reports from the September 2007 and May 2008 VA examination reports) shows that the Veteran's tinnitus had its onset within one year of his separation from military service. Furthermore, although it is not shown that the Veteran has constant tinnitus, his reports of experiencing tinnitus for a few seconds each day demonstrates that it is recurrent. According to 38 C.F.R. § 4.87, Diagnostic Code 6260, a 10 percent rating is warranted for recurrent tinnitus. In light of the foregoing, the Board resolves all reasonable doubt in the Veteran's favor and finds that his tinnitus was manifested to a compensable degree during the one year, presumptive period following service. See 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). Accordingly, service connection for tinnitus is warranted. Timeliness of NOD. As an initial matter, the Board notes that the regulations pertaining to Standard Claims and Appeals Forms were amended during the pendency of this appeal. However, as those amendments are effective March 24, 2015, and this claim was pending prior to that date, the Board will give consideration to the regulations in effect prior to March 24, 2015. Under 38 U.S.C.A. § 7105, an appeal to the Board must be initiated by a timely filed NOD in writing and completed, after an SOC has been furnished, by a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2014); see also 38 C.F.R. §§ 20.201, and 20.202 (2014). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute an NOD. While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201 (2014). 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 (2014). An NOD may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney or declaration of representation, as applicable, is on record or accompanies such NOD. 38 C.F.R. § 20.301(a) (2014). If an appeal is not filed by a claimant personally, or by his or her representative, and the claimant is rated incompetent by VA or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, a notice of disagreement and a substantive appeal may be filed by a fiduciary appointed to manage the claimant's affairs by VA or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. 38 C.F.R. § 20.301(b) (2014). To be considered timely, a NOD with a determination by the AOJ must be filed within one year from the date that the agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination 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) (2014). A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the day of receipt of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(a), (b) (2014). The filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating an appeal from that determination. 38 C.F.R. § 20.304 (2014). The Court has held that there is a presumption of regularity that the Secretary properly discharged official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision is issued. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000). The appellant may rebut that presumption by submitting "clear evidence" to the effect that VA's regular mailing practices are not regular or that they were not followed. The burden then shifts to the Secretary to establish that the VA decision was mailed to the claimant. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Absent evidence that the claimant notified VA of a change of address and absent evidence that any notice sent to the appellant at his or her last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996). The Board finds that the Veteran did not timely file an NOD with decisions denying him entitlement to service connection for a nerve condition of the bilateral feet. In August 2007, the RO issued a rating decision denying service connection for a nerve condition of the bilateral feet. The Veteran's claim was denied, in part, because he had not reported for a VA examination scheduled in conjunction with his claim. On the same day that the Veteran was notified of this decision (in August 2007), the Veteran contacted the RO by telephone. He stated that the VA Medical Center (VAMC) had made an error in scheduling his VA examination, and requested that his examination be rescheduled. The Veteran's VA examination was thereafter rescheduled and conducted in September 2007. After this additional evidence was reviewed by the RO, in October 2007, a rating decision was issued confirming and continuing the denial of service connection for a nerve condition of the bilateral feet. In the accompanying notification letter, also dated in October 2007, the Veteran was advised that he had one year from the date of that letter to appeal the decision. He was also provided a copy of VA Form 4107, Your Rights to Appeal Our Decision, which explained his right to appeal. The Veteran filed a new claim for benefits in December 2007. In a July 2008 rating decision, the RO adjudicated the new claim for benefits and denied service connection for tinnitus, sleeping problems, and a mental condition. An NOD challenging the July 2008 rating decision was received (via the Veteran's attorney) in July 2009. It states: This letter is the [NOD] - Notice of Appeal for the veteran, [ ]. The previous VA decisions that the veteran disagrees with include, but are not limited, to July 22, 2008, and all previous decisions . . . Specifically the following issues are disagreed with by the veteran, but are not limited and include any other claims that have been denied or are related. The following list is what can be determined without the VA sending the [claims file]: 1. Service connection for tinnitus is denied. 2. Service connection for sleeping problems is denied. 3. Service connection for mental condition (claimed as loss of focus) is denied. 4. PTSD. The Veteran's claims for service connection for tinnitus, sleeping problems, and a mental condition were readjudicated in a February 2010 SOC. On page 1 of the SOC, the issues identified as having been appealed included, "Service connection for nerve condition, bilateral feet." On page 20, under the decision portion of the SOC, the issues identified as having been appealed did not include, "Service connection for nerve condition, bilateral feet." No reasons and bases were provided for the denial of service connection for a nerve condition of the bilateral feet. In February 2010, the Veteran's attorney responded to the February 2010 SOC by letter, and requested that it be considered a "VA 9 appeal." In addition to the Veteran's claims for service connection for tinnitus, sleeping problems, and a mental condition, the attorney identified the claim for "nerve condition, bilateral feet," as being on appeal. In April 2010, the RO advised the Veteran by letter that they had received a July 2009 NOD from him, but that it could not be accepted as an NOD with respect to the claim for service connection for a nerve condition of the bilateral feet. The letter explained that the claim for that disability had been denied in an October 2007 rating decision, with notice provided that same month. Thus, the appeal period for that rating decision expired in October 2008. The RO noted that the Veteran's NOD was not received until July 2009, which was more than one year past the expiration of the appeal period. The Veteran has perfected an appeal to the Board regarding the timeliness of the NOD to the decisions denying him entitlement to service connection for a nerve condition of the bilateral feet. At the outset, the Board notes that the Veteran has not asserted (and the record does not show) that he had a physical and/or mental disability that prevented him from filing a timely NOD to the October 2007 rating decision. He has also not provided any other argument, which may be construed as a request for consideration of an extension of time due to good cause shown. For example, he has not argued (and the record does not show) that the October 2007 rating decision and notification letter were mailed to an incorrect address, returned as undeliverable, or otherwise not received by the Veteran. Therefore, consideration of 38 C.F.R. § 3.109(b), which allows the time limits within which claimants are required to act to challenge an adverse VA decision to be extended for good cause shown, is not warranted. Notably, the Veteran has not conceded that his NOD was filed in an untimely manner. Rather, it is the Veteran's assertion that he did file a timely NOD to the October 2007 rating decision, which denied service connection for a nerve condition of the bilateral feet. Specifically, in May 2010, the Veteran's attorney filed an NOD as to the April 2010 determination that the Veteran had not filed a timely NOD. He stated, "[The Veteran] previously appealed the bilateral feet nerve condition, and request that the new effective date the July 22, 2009, as he filed a substantial to appeal regarding this issue." Regarding this statement, the record (as was described above) does not reflect that the Veteran filed an NOD within one year of the October 2007 rating decision. To the extent that the Veteran's attorney believes one was previously filed, he has not identified such document for the Board to consider. The "July 22, 2009," to which he refers in that statement is the date the Veteran's NOD to the July 2008 rating decision (which denied service connection for tinnitus, sleep problems, and a mental condition) was received. Although this document stated that the NOD was "not limited to" the July 2008 rating decision and should also be considered an NOD to "all previous decisions," as was noted by the RO in its April 2010 determination, this document was received more than one year after the issuance of the October 2007 rating decision. Therefore, it cannot be considered a timely NOD as to that decision. As for the attorney's statement that the Veteran had filed a substantive appeal for the issue of entitlement to service connection for a nerve condition of the bilateral feet, the Board acknowledges that in the February 2010 substantive appeal (which was filed in response to the February 2010 SOC), the Veteran's attorney included that issue in his letter. However, a substantive appeal can only be filed in a case where there is an appeal that has been initiated by a timely filed NOD. Here, the Veteran has not demonstrated that he filed a timely NOD as to the denial of service connection for a nerve condition of the bilateral feet. The Veteran's attorney submitted additional argument in support of the Veteran's claim in an October 2010 VA Form 9, substantive appeal. In particular, he stated that the Veteran "filed [a] timely NOD, including being treated at VAMC facilities during the appeal period for the issues appealed. Therefore this treatment serve[d] as the NOD in addition to the formal NODs [that were] timely filed." He also stated: The veteran's previous service-connected benefits claims were denied based upon a failure to report for scheduled examination. The veteran called the VA and subsequently reported for an examination. The veteran missed the original appointment because he was not notified due to he was moving. The VA fails to note that the veteran contacted and attended examinations and examinations [sic] at the Shreveport, Louisiana VA Medical Center and also reported for a scheduled examination in August 2007 and expressed his disagreement with the VA's decision to terminate his benefits claims. Under VA regulations the [RO] has notice when information is provided at a VA medical facility. The veteran disagreed with the termination of his benefits and denial of his claims based upon he did not file [an NOD] in a timely manner. In fact the veteran has submitted claims and appeals ([NODs] and [substantive appeals]) in a timely manner that can be seen by looking at the dates of appeals, denials, and [NODs]. The veteran's original claim was denied and mailed October 31, 2007, and the veteran filed an additional claim for benefits on December 7, 2007, which was subsequently denied July 28, 2008. A timely notice of disagreement was submitted on May 11, 2009, and July 22, 2009. Therefore the VA's claim that the veteran did not submit a timely notice of appeal-[NOD] is incorrect. Both of May 11 and July 22, 2009, dates or [sic] within one year of the cumulative denial date of July 28, 2008. Furthermore the VA had knowledge through the VA medical system of the veteran's disagreement with the denial of the nerve condition, bilateral feet and all subsequent denials of claims for all claimed disabilities. Regarding the attorney's first argument that the Veteran's continued treatment at a VAMC for a nerve condition of the bilateral feet should be considered a timely filed NOD, the regulations make clear that NODs should be in the form of a "written communication" and filed with the VA office from which the claimant received notice of the determination being appealed. See 38 C.F.R. §§ 20.201, 20.300 (2014). Therefore, the Veteran's treatment at a VAMC may not serve as a valid NOD. Regarding the remainder of the attorney's arguments in the October 2010 VA Form 9, substantive appeal, the Board notes that he appears to be conflating both the facts and the issues on appeal. In particular, while the Veteran's claim for service connection for a nerve condition of the bilateral feet was denied originally (in August 2007), in part, due to the Veteran's failure to report for an examination, such an examination was ultimately rescheduled and conducted in September 2007. The Veteran's claim was then readjudicated (to include consideration of the September 2007 VA examination report) and denied in October 2007. No examination was conducted in August 2007, as claimed by the attorney, and the September 2007 VA examination was conducted by the Temple, Texas VAMC, not the Shreveport, Louisiana VAMC. Notably, a review of the record does not show that any of the Veteran's VA examinations have been conducted by the Shreveport, Louisiana VAMC. As for the attorney's assertion that the Veteran filed a "May 11, 2009, and July 22, 2009," NOD with the July 28, 2008, rating decision. The Board notes that the NOD to the July 2008 rating decision was received on July 22, 2009. There was no NOD received on May 11, 2009. Instead, an NOD was received on May 11, 2010; that document was submitted in response to the RO's April 2010 determination that the Veteran had filed an untimely NOD for the issue of service connection for a nerve condition of the bilateral feet. The Veteran's attorney has also argued that the July 2009 NOD should be accepted as a timely NOD with the "cumulative denial date of July 28, 2008." (Emphasis added.) This argument appears to be premised on the fact that after the Veteran's claim for service connection for a nerve condition of the bilateral feet was denied in October 2007, within two months (in December 2007), he filed a new claim for benefits that was then denied in July 2008. However, the July 2008 rating decision was specific to the issues claimed by the Veteran in December 2007, and did not decide anew the issue of entitlement to service connection for a nerve condition of the bilateral feet. Therefore, the July 2008 rating decision cannot be considered a "cumulative denial," as characterized by the Veteran's attorney. Having addressed the arguments by the Veteran's attorney, the Board turns to the remainder of the record and notes that much of the confusion in this case likely stems from the RO's inadvertant inclusion of the issue of service connection for a nerve condition of the bilateral feet on page 1 of its February 2010 SOC. In Percy v. Shinseki, 23 Vet. App. 37 (2009), the Court recognized that there are times when jurisdictional bars to the Board's adjudication of a matter may be waived. This case is, however, distinguishable from Percy. In Percy, the Court held that the 60-day period to file a Substantive Appeal was not a jurisdictional bar to the Board's adjudication of a matter, and that VA may waive any issue of timeliness in the filing of a Substantive Appeal, either explicitly or implicitly. Id. at 45. The Court then applied that holding to the facts of Percy and found that even though the appellant had not filed a timely Substantive Appeal as to the issue of the disability rating for his suprapubic disability, "VA [had] consistently treated this matter as if it was part of the timely filed Substantive Appeal." The Court noted that not only had the RO certified the matter to the Board for adjudication as if a timely Substantive Appeal had been filed, but also the Board member who rendered the decision on appeal had taken testimony on that matter during a Travel Board hearing. Therefore, "by treating the disability rating matter as if it were part of [the appellant's] timely filed Substantive Appeal for more than five years, VA waived any objections it might have had to the timeliness of the filing." The Court stated, "If VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says." Id. at 46. In the case at hand, although the RO included the issue of service connection for a nerve condition of the bilateral feet on page 1 of its February 2010 SOC, it did not repeat that error in the decision portion of the SOC. See February 2010 SOC, pp. 20-21. Furthermore, upon receipt of the Veteran's February 2010 substantive appeal, which included the issue of service connection for a nerve condition of the bilateral feet, the RO took immediate action to notify the Veteran that he had not initiated a timely appeal in that matter. See April 2010 determination letter. As there is no evidence that VA ever treated the Veteran's claim for service connection for a nerve condition of the bilateral feet as if an appeal had been timely initiated, it cannot be said that VA waived (either explicitly or implicitly) the issue of timeliness in the filing of the Veteran's NOD. Therefore, unlike in Percy, the Veteran in this case is not entitled to the expectation that VA (to include the Board) would treat his claim for service connection for a nerve condition of the bilateral feet as having been timely appealed. In summary, the Board cannot find that the Veteran filed a timely NOD as to the October 2007 rating decision, which denied service connection for a nerve condition of the bilateral feet. Therefore, the October 2007 rating decision is final, and the Board has no jurisdiction to address that matter of service connection for a nerve condition of the bilateral feet on the merits. ORDER Service connection for tinnitus is granted. As the Veteran did not timely file an NOD with the October 2007 rating decision denying service connection for a nerve condition of the bilateral feet, the Board has no jurisdiction in that matter, and the appeal is dismissed. REMAND Acquired psychiatric disorder, to include PTSD and depression. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD and depression. His original claim was one for "loss of focus" (see December 2007 VA Form 21-526); however, it has since been expanded to include PTSD and depression. It is conceded that the Veteran participated in an air assault mission that occurred in Iraq during service. The remaining question to be resolved is whether he has an acquired psychiatric disorder that is related to his military service. In July 2011, the Veteran submitted an October 2010 private medical opinion from Dr. C.N.B., who stated that the Veteran should be "fully evaluated and treated for his service stressors and residual PTSD." He also stated that the Veteran was "likely clinically depressed" and that his depression was "likely secondary to his service time experiences and PTSD." As a result of the foregoing opinion, in August 2011, the Veteran was afforded a VA examination. After interviewing and examining the Veteran, it was the examining psychologist's opinion that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria. Instead, the examiner diagnosed either depressive disorder not otherwise specified (NOS) (in remission) or adjustment disorder with depressed mood (in remission) and opined that neither of these diagnoses were "considered related to or caused by his military activities." At the July 2015 Travel Board hearing, the Veteran testified that he does experience PTSD-related symptoms and that he had been told by his treating clinicians that he did have PTSD. He further testified that he had not been forthcoming with his providers or the VA examiner about his experiences in service or the symptoms he now experienced. He was encouraged to submit an opinion from his treating psychologist or psychiatrist, but not a nurse practitioner. In September 2015, the Veteran submitted additional private treatment records for consideration. These records show that from December 2014 to June 2015, ADHD was diagnosed by K.C., PA-C, a physician's assistant. In July 2015, the Veteran was again seen by K.C. She noted that the Veteran had had a hearing to determine if he has PTSD (as well as other medical disorders that he has since been diagnosed with) as a result of his military duties since it was not diagnosed at the time. She further noted the Veteran's admission that he had not been entirely forthcoming as to what he has experienced in the past or in more recent years in regards to symptoms of PTSD. After examining the Veteran, K.C. diagnosed ADHD and PTSD. However, in her impression section, she stated, "[B]ased on initial assessment patient exhibits symptoms consistent with ADHD. Symptoms adequately controlled." She did not discuss PTSD, although medication was prescribed for "nightmares related to PTSD." Also submitted in September 2015 was a statement dated that same month from Dr. D.P., a physician associated with the clinic where the Veteran receives psychiatric care from K.C., PA-C. Dr. D.P. stated, "[The Veteran] has been under my continued medical care since [December 2014]. [He] is diagnosed with the following: ADHD, combined type or hyperactive/impulsive type (314.01); Posttraumatic stress disorder (309.81). [The Veteran] is suffering from PTSD which he reports is due to his service." (Formatting removed). Although the Veteran has submitted a favorable opinion from his treating physician, the Board notes that the medical records associated with that opinion show that the underlying examinations and diagnoses have been rendered by a physician's assistant. Importantly, it is not apparent from Dr. D.P.'s statement that the PTSD diagnosis was based on an actual mental status evaluation of the Veteran versus his own accounts. In light of the current state of the evidence (as described above), the Board finds that Dr. D.P. should be requested to provide a clarification of opinion. If no response is obtained, then the Board finds that another VA examination is necessary to clarify the Veteran's psychiatric diagnoses and for a medical opinion as to whether any of those diagnoses are related to his service. Sleeping problems, to include sleep apnea. The Veteran seeks service connection for sleeping problems, to include sleep apnea. His original claim was one for "trouble sleeping," (see December 2007 VA Form 21-526); however, it has since been expanded to include sleep apnea. The Veteran also claimed originally that he had sleep issues secondary to the ringing in his ears, but at the July 2015 Travel Board hearing, it was also asserted that he had sleep apnea/sleep issues secondary to his PTSD. At the time of the original denial, the Veteran was not service-connected for tinnitus. However, the above decision grants service connection for tinnitus. Accordingly, it is the opinion of the Board that additional development should be undertaken to determine whether the Veteran has a sleep disorder secondary to his now service-connected tinnitus, and the claim readjudicated accordingly. To the extent that the Veteran asserts he has a sleep disorder secondary to PTSD, that portion of the claim is inextricably intertwined with the appeal seeking service connection for an acquired psychiatric disorder, to include PTSD and depression. Therefore, consideration of whether the Veteran is entitled to service connection for a sleep disorder on that basis must be deferred pending resolution of the claim seeking service connection for an acquired psychiatric disorder. 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). Accordingly, the case is REMANDED for the following actions: 1. After securing any necessary authorization from the Veteran, the AOJ/AMC should contact the private physician (Dr. D.P.) who submitted the September 2015 statement. Dr. D.P. should be asked that in light of the comment that the Veteran is suffering from PTSD "which he reports is due to his service," please clarify whether it is also Dr. D.P.'s medical judgement that the Veteran has PTSD due to in-service stressful events. In the alternative, the Veteran is not precluded from seeking out a clarification of opinion from Dr. D.P. addressing the same. 2. If no response is obtained to Remand directive 1, then arrange for the Veteran to be afforded an examination by a VA psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability. The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following: (a) What is (are) the diagnosis(es) for the Veteran's current psychiatric disability(ies)? (b) For each psychiatric disability diagnosed, please provide an opinion as to whether such is, at least as likely as not (50 percent or better probability), related to the Veteran's service. The examiner should also discuss specifically the psychiatric diagnoses already of record (i.e., PTSD, ADHD, depressive disorder NOS (in remission), and adjustment disorder with depressed mood), and whether he or she disagrees with those past diagnoses. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 3. Arrange for the Veteran to be afforded an examination by an appropriate examiner to determine the nature and likely etiology of his sleeping problems. The Veteran's claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide opinions responding to the following: (a) What is (are) the diagnosis(es) for the Veteran's current sleeping problems, if any? (b) For each sleeping problem diagnosed, to include sleep apnea, please provide an opinion as to whether such is, at least as likely as not (50 percent or better probability), related to the Veteran's service. (c) For each sleeping problem diagnosed, to include sleep apnea, please provide an opinion as to whether such is, at least as likely as not (50 percent or better probability), caused by the Veteran's tinnitus and/or acquired psychiatric disorder. (d) For each sleeping problem diagnosed, to include sleep apnea, please provide an opinion as to whether such is, at least as likely as not (50 percent or better probability), aggravated by the Veteran's tinnitus and/or acquired psychiatric disorder. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claims of service connection for an acquired psychiatric disorder, to include PTSD and depression, and for sleeping problems, to include sleep apnea, claimed as secondary to tinnitus and/or PTSD. If any of the claims remain denied, the RO/AMC should issue an appropriate supplemental SOC and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are 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). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs