Citation Nr: 1739167 Decision Date: 09/14/17 Archive Date: 09/29/17 DOCKET NO. 14-28 127A ) DATE Advanced on the Docket ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether there is a valid appeal regarding the effective date for the grant of service connection for posttraumatic stress disorder (PTSD). ORDER The appeal is dismissed. FINDINGS OF FACT 1. There is no dispute as to any fact necessary to resolve this matter. 2. A Notice of Disagreement was never filed regarding the effective date of January 14, 2016, assigned in the January 2016 decision which granted service connection for PTSD. CONCLUSION OF LAW The criteria for a valid appeal of the effective date for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 7104, 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.201 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from September 1967 to April 1969. This appeal comes before the Board of Veterans' Appeals (Board) from the RO in Atlanta, Georgia. Original jurisdiction over the claims file is with the RO in Jackson, Mississippi. The Veteran did not report for a Board hearing that was scheduled to be conducted at the RO in August 2017. Because the Veteran has neither submitted good cause for failure to appear or requested to reschedule the hearing, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2016) (failure to appear for a scheduled hearing treated as withdrawal of request). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran submitted a claim of entitlement to service connection for PTSD in April 2012. In an April 2013 rating decision, the RO denied the claim. The Veteran disagreed with the denial of service connection in April 2014. A Statement of the Case was issued in June 2014. The appeal was perfected with the submission of a VA Form 9 in August 2014. After additional development was accomplished, the RO issued a rating decision in January 2016 which (1) granted service connection for PTSD, (2) assigned an initial rating of 50 percent, and (3) assigned an effective date of January 14, 2016. Subsequent to the January 2016 decision, there has been no correspondence received from the Veteran or his representative regarding the effective date or any other determination in the January 2016 decision. The only Notice of Disagreement identified in the Board of Veterans' Appeals Control and Locator System (VACOLS) is the April 2014 Notice of Disagreement with the denial of service connection. It would appear that the RO treated the matter in similar fashion to a rating claim, where an increase which does not establish the maximum rating for all or part of the period on appeal, would not be considered a full grant of the benefit sought. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). However, the law applicable to service connection claims is distinct from that applicable to rating claims. The United States Court of Appeals for Veterans Claims (Veterans Court) has been clear that, once service connection is granted, a service connection claim is fully substantiated. Dunlap v. Nicholson, 21 Vet. App. 112 (2007), citing Dingess v. Nicholson, 19 Vet. App. 473 (2006) (once a claim has been proven-triggering VA to award service connection, and assign a disability rating and an effective date-the claim has been substantiated. In sum, the law is clear that the disability rating and effective date are "downstream" issues which do not survive the grant of service connection as appellate issues. The Board acknowledges that, in cases where a substantive appeal is not received, or is received but not timely, VA may be deemed to waive the requirement for timely filing of the substantive appeal (VA Form 9 or equivalent). Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). However, there can be no such waiver of the jurisdictional requirement of a timely Notice of Disagreement. In Percy, the Veterans Court held that the 60-day period for perfecting an appeal to the Board by submission of a VA Form 9 or equivalent under 38 U.S.C. § 7105(d)(3) is not a jurisdictional requirement. Therefore, by treating an issue as part of a perfected appeal, VA was deemed to have waived this non-jurisdictional requirement. However, the Percy Court came to that conclusion by specifically contrasting the substantive appeal requirement with what it termed the "jurisdictional" requirement and time limit for filing a Notice of Disagreement. The Veterans Court reasoned that the permissive language of section 7105(d)(3) stands in contrast to the statutory language mandating that claimants file a timely Notice of Disagreement, and emphasizing that the "[N]otice of [D]isagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination," and "[i]f no [N]otice of [D]isagreement is filed... within the prescribed period, the action or determination shall become final." 38 U.S.C. § 7105(b)(1), (c). Thus, the relevant caselaw establishes that the requirement for filing a Notice of Disagreement cannot be waived. The mere fact of RO certification of the appeal by issuance of a VA Form 8 does not establish a valid appeal as that document is for administrative purposes only and non-jurisdictional. See 38 C.F.R. § 19.35 (2016). Regarding the matter of equitable tolling, the Board reiterates that the Veteran has made no argument whatsoever regarding the effective date for the grant of service connection for PTSD. The certification of this appeal appears to be due solely to administrative error. The appellant always bears the burden of demonstrating that equitable tolling is warranted. Checo v. Shinseki, 26 Vet. App. 130, 133 (2013). In this case, he has not attempted to do so. In sum, no dispute has been presented as to any fact necessary to resolve this matter. The Veteran did not file a Notice of Disagreement with the effective date assigned in the January 2016 rating decision which granted service connection for PTSD. Accordingly, the law is determinative and the appeal must be dismissed for lack of jurisdiction. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). As the facts are not in dispute, and resolution of the matter is wholly dependent on interpretation of the applicable laws and regulations pertaining to Board jurisdiction and what constitutes an appeal, the VCAA is inapplicable and need not be considered. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). To the extent that, in addressing the validity of the appeal, the Board has addressed a question not addressed by the RO, the Board finds that there is no prejudice as the Veteran was provided notice accompanying the January 2016 decision as to steps and time limit necessary to initiate an appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: Georgia Department of Veteran Service Department of Veterans Affairs