Citation Nr: 1640363 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 11-26 908 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan THE ISSUES 1. Whether a timely substantive appeal was perfected from a September 2008 rating decision denying service connection for posttraumatic stress disorder (PTSD). 2. Whether a timely substantive appeal was perfected from a September 2008 rating decision denying service connection for a left knee disorder. 3. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: R. Bratch, Attorney ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from December 1987 to April 1988 and from February 1991 to September 1991. The Veteran served in Southwest Asia. He had additional duty with the Army Reserve. In September 2008, the Detroit, Michigan, Regional Office (RO) denied service connection for both PTSD and a left knee disorder. In October 2008, the Veteran submitted a notice of disagreement (NOD). In February 2010, the RO issued a statement of the case (SOC) to the Veteran and his accredited representative. In May 2010, the Veteran submitted an Appeal to the Board (VA Form 9). This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 RO determination that the Veteran's May 2010 Appeal to the Board (VA Form 9) from the denial of service connection for both PTSD and a left knee disorder was untimely. In July 2010, the Veteran submitted a NOD with that determination. In August 2011, the RO issued a SOC addressing the issues of the timeliness of the Veteran's substantive appeal. In September 2011, the Veteran submitted an Appeal to the Board (VA Form 9). In March 2013, the RO again denied service connection for PTSD. In March 2014, the Veteran submitted a NOD. In October 2015, VA issued a SOC to the Veteran. In November 2015, the Veteran submitted an Appeal to the Board (VA Form 9) from the denial of service connection for PTSD. The Board has reviewed both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of the Veteran's appeal should take into consideration the existence of this electronic record. In his March 2014 Notice of Disagreement (VA Form 21-0958), the Veteran advanced contentions which may be reasonably construed as an informal application to reopen his claim of entitlement to service connection for sleep apnea. The issue of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for sleep apnea has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it. The issue is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. In September 2008, the RO denied service connection for both PTSD and a left knee disorder. On September 24, 2008, the Veteran was informed in writing of both the adverse decision and his appellate rights. 2. In October 2008, the Veteran submitted a NOD with the September 2008 rating decision. On February 26, 2010, the RO issued a SOC to the Veteran and his accredited representative. 3. In May 2010, the Veteran submitted an Appeal to the Board (VA Form 9) from the denial of service connection for both PTSD and a left knee disorder which was received by VA on May 19, 2010. 4. The September 2008 rating decision denying service connection for PTSD is not final. 5. PTSD originated during active service. CONCLUSIONS OF LAW 1. A timely substantive appeal from the September 2008 rating decision denying service connection for PTSD was not perfected. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302 (2016). 2. A timely substantive appeal from the September 2008 rating decision denying service connection for a left knee disorder was not perfected. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302 (2016). 3. The September 2008 rating decision denying service connection for PTSD is not final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.156(b) (2016). 4. The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103, must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate his claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VA has issued several VCAA notices to the Veteran including an April 2007 notice which informed him of the evidence generally needed to support a claim for service connection and the assignment of an initial disability evaluation and effective date for an award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. VA's duty to notify was satisfied by the April 2007 VCAA notice. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Timely Substantive Appeal The Veteran advances that his May 2010 Appeal to the Board (VA Form 9) from the denial of service connection for both PTSD and a left knee disorder should be considered as timely as he was confused by the notices provided to him by VA as to when he was required to submit his substantive appeal and delayed completion of required actions is a component of his diagnosed PTSD. Appellate review will be initiated by a NOD and completed by a substantive appeal after a SOC is furnished to the Veteran. The SOC will be issued to the Veteran. He will be afforded a period of 60 days from the date the SOC is mailed to file his substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed Appeal to the Board (VA Form 9) or correspondence containing the necessary information. 38 C.F.R. § 20.202. The substantive appeal must be filed within 60 days from the date that the RO mails the SOC to the Veteran or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and 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. The Court has clarified that: The biggest difference between the filing requirements for the NOD and the 1-9 Appeal, however, is that failure to file a timely 1-9 Appeal does not automatically foreclose an appeal, render a claim final, or deprive the BVA of jurisdiction. Statutory section 7105(d)(3) and regulation § 19.124 (replaced by § 20.302(b) ) provide that an RO may close an appeal for failure to respond to the SOC. However, the statute and regulations do not require an RO to close a claim in that situation; nor do they provide that the claim will become final if the claimant fails to file a timely 1-9 Appeal. Rowell v. Principi, 4 Vet. App. 9 (1993). In September 2008, the RO denied service connection for both PTSD and a left knee disorder. On September 24, 2008, the Veteran was informed in writing of both the adverse decision and his appellate rights. In October 2008, the Veteran submitted a NOD. On February 26, 2010, the RO issued a SOC with a transmittal letter and a blank Appeal to the Board (VA Form 9) to the Veteran and his accredited representative. The letter informed the Veteran that: "[y]ou must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed;" "[i]f we do not hear from you within this period, we will close your case;" and "[i]f you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires." The instructions provided with the Appeal to the Board (VA Form 9) include the following: 4. HOW LONG DO I HAVE TO COMPLETE THIS FORM AND FILE IT? Under current law, there are three different ways to calculate how much time you have to complete and file this form. The one that applies to you is the one that gives you the most time. (a) You have one year from the day your local VA office mailed you the notice of the decision you are appealing, (b) You have 60 days from the day that your local VA office mailed you the SOC. (c) Your local VA office may have sent you an update to the SOC, called a "Supplemental Statement of the Case" (SSOC). If that SSOC was provided to you in response to evidence you or your representative submitted within the one-year period described in paragraph 4(a) of these instructions, above, and if you have not already filed this form, then you have at least 60 days from the time your local VA office mailed you the SSOC to file it even though the, one-year period has already expired. See 38 C.F.R. 20.302(b)(2). In May 2010, the Veteran submitted an Appeal to the Board (VA Form 9) which was received by VA on May 19, 2010. In June 2010, the RO determined that the Veteran's Appeal to the Board (VA Form 9) was untimely and closed his appeal. In his July 2010 NOD, the Veteran advances that: "I sent you my appeal in what I thought was the correct time period;" "[y]our letter was very confusing stating both 1 year and 60 days in the same sentence for my chance to appeal;" "I thought that I had 1 year from the time of that letter;" "[a]lso, part of PTSD is to delay or not do items in a timely manner according to the psychiatrist;" and "[n]ow you continue to give additional excuses and confusing information just so you do not need to acknowledge my claim." The Veteran's May 2010 Appeal to the Board (VA Form 9) was received on May 19, 2010, a date 83 days after the issuance of the February 2010 SOC and over one year and seven months after the September 24, 2008, written notice to him of the adverse decisions. While he advances that he was confused by the notice provided to him in the February 2010 VA letter to him with the SOC and was thwarted to a degree by his psychiatric disability, there is no indication in the record that either the Veteran did not comprehend the explicit instructions accompanying the Appeal to the Board (VA Form 9) provided to him by VA or that his accredited representative at the time was unaware of or misled him as to the appropriate time period in which to file a substantive appeal. Such action would be a request for clarification to either his accredited representative or VA or a request for an extension of the period in which to file his substantive appeal. Given these facts, the Board concludes that the Veteran's substantive appeal from the denial of service connection for both PTSD and a left knee disorder was untimely and the RO appropriately closed the Veteran's appeal. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302. II. Service Connection for PTSD Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a Veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2016). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.. 38 C.F.R. § 3.156(b). In September 2008, the RO denied service connection for PTSD "because the evidence of record fails to show you have PTSD due to a military stressor." As discussed in detail above, the Veteran was informed in writing of the adverse determination and his appellate rights in September 2008 and did not subsequently perfect a timely substantive appeal from the denial of service connection for PTSD. The evidence upon which the September 2008 rating decision denying service connection was formulated may be briefly summarized. The Veteran's service treatment records make no reference to PTSD or other psychiatric abnormalities. His service personnel records indicate that he served in Saudi Arabia. VA clinical documentation dated in June 2008 states that the Veteran was complained of PTSD symptoms. The Veteran was diagnosed with "anxiety state, rule out bipolar disorder otherwise specified, [and] rule out PTSD." In August 2009, the Veteran submitted an undated Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Trauma (VA Form 21-0781a) and a January 2009 psychosocial assessment from E. Tripi, Ph.D., a licensed psychologist. In the Statement in Support of Claim for Service Connection for PTSD, the Veteran reported that while attached to the 199th Supply Company in Saudi Arabia, he had witnessed a motor vehicle accident involving an Army vehicle and a Saudi Arabian semi-truck; had offered his services as an emergency medical technician to help the injured individuals; and was ordered not to assist the victims by an indifferent military policeman. The January 2009 psychosocial assessment states that the Veteran was diagnosed with chronic delayed onset PTSD. Dr. Tripi noted that: the Veteran had served in Operation Desert Storm; he had "outlined several stressors that would rise to the level as required by this diagnosis [of PTSD];" and "had a poor post military adjustment." The Veteran's Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Trauma (VA Form 21-0781a) and Dr. Tripi's January 2009 psychosocial assessment were received within the year following notice of the September 2008 rating determination. They are of such significance that they raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD. The new and material documentation was not addressed by any adjudicatory action prior to the March 2013 rating action. Therefore, the Board finds that the September 2008 rating decision is not final. 38 C.F.R. § 3.156(b). Given this fact, it necessary to address the issue of service connection for PTSD on the merits. The Veteran advances that service connection for PTSD is warranted as he has been diagnosed by a VA psychiatrist and his private psychologist with the claimed disorder secondary to his in-service traumatic events which include having witnessed a motor vehicle accident involving multiple fellow service members and being the victim of an sexual assault by a fellow serviceman. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish the service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed aggravation of a disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2016); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed in-service stressor occurred. A claim for PTSD based on allegations of in-service personal assault may be corroborated by evidence from sources other than the Veteran's service documentation. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor and such evidence include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f). In his undated Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Trauma (VA Form 21-0781a) received in August 2009, the Veteran reported that while attached to the 199th Supply Company in Saudi Arabia, he had witnessed a motor vehicle accident involving an Army vehicle and a Saudi Arabian semi-truck' offered his services as an emergency medical technician; and was ordered not to assist the victims by an indifferent military policeman. The report of a February 2012 VA PTSD examination states that the Veteran was diagnosed with PTSD. The VA psychiatrist commented that: "PTSD symptoms are related to the Veteran's witness of a motor vehicle accident in which a U.S. hummer was back ended by a Saudi civilian truck and smashed the three troops in the backseat;" the "Veteran also experienced [military sexual trauma] while on a weekend Reserve training in Grayling, MI;" and the "Veteran's PTSD symptoms were caused by or resulted from his [military sexual trauma] experience. In a July 2012 Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD) Secondary to Personal Trauma (VA Form 21-0781a), the Veteran related an incident in which he was sexually assaulted by a fellow soldier during a period of active duty for training while in the Army Reserve. The Veteran asserts that service connection for PTSD is warranted as he has been diagnosed with PTSD secondary to his in-service stressful experiences. A VA psychiatrist has diagnosed the Veteran with PTSD secondary to the Veteran's stressful in-service experiences which included having witnessed a motor vehicle accident and being the victim of an in-service sexual assault. In the absence of any competent evidence to the contrary and upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for PTSD. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A timely substantive appeal was not perfected from the September 2008 rating decision denying service connection for PTSD. A timely substantive appeal was not perfected from the September 2008 rating decision denying service connection for a left knee disorder. The September 2008 rating decision as to PTSD is not final. Service connection for PTSD is granted. ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs