Citation Nr: 1803966 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-00 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date prior to June 9, 2011, for the assignment of a 100 percent rating for mood disorder with manic features secondary to cerebrovascular accident (CVA) and posttraumatic stress disorder (PTSD), to include whether an effective date prior to January 19, 2011, is warranted for the grant of service connection for mood disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his daughter/guardian ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The June 2011 rating decision granted entitlement to service connection for PTSD and assigned a 30 percent rating, effective January 19, 2011. A notice of disagreement with the assigned rating was received in September 2011, a statement of the case was issued in November 2013, and a substantive appeal was received in January 2014. An August 2012 rating decision increased the rating to 100 percent effective June 9, 2011, and recharacterized the disability as mood disorder with manic features secondary to CVA and PTSD. In a July 2008 rating decision, the Veteran was declared not competent to handle disbursement of funds. In May 2017, the Veteran and his daughter (who is also his guardian) testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. FINDINGS OF FACT 1. Effective January 19, 2011, the Veteran's mood disorder with manic features secondary to CVA and PTSD has manifested in total occupational and social impairment. 2. On March 16, 2009, the RO issued a rating decision that denied the claim of service connection for a psychiatric disability 3. Neither the Veteran nor any individual acting on behalf of the Veteran, to include his accredited representative, filed a notice of disagreement with the March 2009 rating decision. 4. Neither the Veteran nor any individual acting on behalf of the Veteran, to include his accredited representative, submitted new and material evidence within one year of the March 16, 2009, rating decision notice. CONCLUSION OF LAW The criteria for an effective date of January 19, 2011, but no earlier, for a 100 percent rating for mood disorder with manic features secondary to CVA and PTSD are met. 38 U.S.C. §§ 503, 511, 5108, 5110, 7104 (West 2012); 38 C.F.R. §§ 3.156, 3.400, 4.130, Diagnostic Code 9411, 20.201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duty to notify was satisfied by a letter that was sent to the Veteran in May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C. § 5103A. The Veteran has claimed entitlement to an earlier effective date for the 100 percent rating for his acquired psychiatric disability. The Veteran and his guardian contend that he should be awarded a 100 percent rating effective from February 2008, which is when he filed his initial claim for service connection for multiple sclerosis and residuals of a stroke. (See Board Hearing Transcript, page 8.) Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. § 3.400 (2017). In this case, VA received the claim on January 19, 2011. He is currently in receipt of a 30 percent rating since January 19, 2011. In order to receive a 100 percent rating for his mood disorder, the Veteran would have to have satisfied the criteria for a 100 percent rating under Diagnostic Code 9411 as of that date. The 100 percent rating criteria are as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The July 2012 VA examination report describes the Veteran's psychiatric disorder as having met the criteria for a 100 percent rating since at least January 19, 2011, the date of his reopened service connection claim. The Board therefore finds that a 100 percent rating is warranted effective from at least January 19, 2011. The Board will next determine whether an effective date prior to January 19, 2011, is warranted. As noted above, in general, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. § 3.400 (2017). A disability rating cannot be assigned prior to the effective date for which service connection was granted. In this case, the Veteran has now been assigned a 100 percent rating starting on January 19, 2011, which is the effective date of the service connection grant. Thus, in order for a disability rating to be assigned prior to January 19, 2011, the Veteran must demonstrate that an effective date for service connection prior to January 19, 2011, should have been granted. The Veteran can do so by demonstrating that he had either (1) appealed that denial or (2) submitted new and material evidence within one year of the notice of the rating decision that had denied his claim. The Veteran essentially contends that the effective date should be consistent with the earliest claim that he filed in connection with his initial service connection claim. The Veteran's initial claim of entitlement to service connection for PTSD was received by VA on July 2, 2008. This claim was denied by the RO in a November 2008 rating decision because there was insufficient evidence of record to corroborate an in-service stressor. The Veteran was notified of this denial in a letter dated December 23, 2008. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). If new and material is received prior to the expiration of the appeal period, it will be considered as having been filed with the claim that was pending at the beginning of the appeal period, and the denial will not be considered final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "New evidence" means existing evidence not previously submitted to agency decisionmakers. "Material evidence" means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In November 2008, the Veteran submitted information that helped the RO verify his in-service stressor. Because the evidence contained a PTSD diagnosis and a verified stressor, the RO scheduled the Veteran for an examination to attempt to obtain an opinion linking the stressor to the diagnosed PTSD. However, the Veteran did not report to the examination. In a March 2009 rating decision, the RO denied service connection for PTSD because there was no competent medical evidence of a link between the in-service stressor and the diagnosed psychiatric disability. Notice of this denial was issued in a letter dated March 16, 2009. The Veteran had one year to either (1) file a notice of disagreement to initiate an appeal or (2) submit new and material evidence that is relevant to establishing that the Veteran's PTSD was linked with his in-service stressor. The Board notes that, even though the June 2011 rating decision initially granted service connection for PTSD based on the Veteran's in-service stressor, the August 2012 rating decision that increased the disability rating to 100 percent amended the claimed disability to include "manic features secondary to CVA." Therefore, the Board has considered whether there is new evidence of record from the one-year period following the March 16, 2009, notice letter that (1) links the Veteran's PTSD to the in-service stressor, or (2) links his mood disorder to his CVA. Correspondences that were added to the claims file during the one-year period following the March 16, 2009, notice letter consists of evidence that was generated by VA or by the Veteran or his family in connection with an overpayment claim. All of the statements that were submitted by the Veteran or a fiduciary during that period pertain to the overpayment. Records generated by VA facilities are considered constructively in the possession of VA adjudicators at the time of their creation, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, VA-generated records, including medical records, dated within one year of the rating decision notification letter must be reviewed to determine whether they constitute new and material evidence under 38 C.F.R. § 3.156(b). The Board has reviewed the medical evidence from the one-year period following the March 16, 2009, rating decision notice. Unfortunately, there is no medical evidence from that period that pertains to the Veteran's psychiatric disabilities. Therefore, there was no new medical evidence that was relevant to the question of whether there was a link between the Veteran's psychiatric disability and an in-service stressor or a service-connected disability. Therefore, the Board must find that new and material evidence was not received by VA within the one-year period following the notice of the March 2009 rating decision. Having found that new and material evidence was not submitted within that one-year period, the Board will now consider whether the Veteran may be considered to have initiated an appeal of the original service connection denial. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2017). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed notice of disagreement, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board has therefore considered whether any document submitted within one year of the notices of the November 2008 or March 2009 rating decisions constitutes a valid notice of disagreement. A notice of disagreement must express dissatisfaction or disagreement with a denial of a claim and a desire to contest the result. 38 C.F.R. § 20.201. Although any communication from the claimant will be liberally construed, it still must be expressed in terms that can reasonably be construed as disagreement with a denial and desire for appellate review. Id. The Board has reviewed the entire record, with a particular emphasis on the statements that were submitted by the Veteran or family or representative within the relevant period. The Board finds, however, that no statement that has been submitted during this period can be construed as expressing disagreement with the denial of service connection for a psychiatric disability and expressing desire for appellate review. First, the Board notes that the Veteran asserted at his Board hearing that he had a private attorney, Brooks McDaniel, who had filed an appeal of his claim in 2008. The Board notes that the Veteran was being represented by VFW, not Mr. McDaniel, at the time of the November 2008 or March 2009 denials of his service connection claim. The VA Form 21-22a appointing Mr. McDaniel as the Veteran's representative was not executed until January 2011. Therefore, Mr. McDaniel would not have been representing the Veteran at the time during which he could have filed a timely notice of disagreement in connection with the November 2008 or March 2009 rating decisions. Otherwise, most of the statements that are actually of record as having been submitted during the one-year periods following the November 2008 and March 2009 rating decision notices expressly pertain to the unrelated issue of whether an overpayment had been properly created and whether waiver of such overpayment was appropriate. A potentially ambiguous statement appears in an August 2009 Report of General Information in which the Veteran's daughter was "very upset because we have not re-opened the veteran's benefits." The VA employee notified her "that we are currently looking into the matter (congressional inquiry per Map-D note)." Review of the claims file reveals that the Veteran's family had contacted his Senator in connection with the overpayment claim, and that someone from the Senator's office had contacted VA in relation to that specific matter. There is no reasonable way to interpret any statements that the Veteran or his family have submitted to VA (either directly or via their Senator) within the relevant time period as constituting a notice of disagreement with the November 2008 or March 2009 rating decisions and expressing a desire for appellate review. Therefore, the Board must find that no valid notice of disagreement was submitted within one year of a rating decision that denied service connection for psychiatric benefits. Finally, the Board notes that the Veteran's guardian has requested that VA consider whether the extraordinary difficulties that she, the Veteran, and the Veteran's wife suffered during the period in question could justify extending the time limit to file the notice of disagreement. (See Board Hearing Transcript, pages 12-13, 22-24.) In essence, she contends that the Veteran's claim should have been equitably tolled. In Barrett v. Principi, 363, F.3d 1316, 1321 (Fed. Cir. 2004), the Federal Circuit held that for the purposes of determining whether a claimant timely appealed to that particular court, equitable tolling is available where a Veteran is able to show that the failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. The Federal Circuit cautioned that a medical diagnosis alone or vague assertions of mental problems will not suffice. Id. However, equitable tolling has been held to be inapplicable to issues involving effective dates under 38 U.S.C.A. § 5110. See Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (holding that equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110, as that section addresses the question of when benefits begin to accrue, not whether a veteran is entitled to benefits at all); Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) (per curium). The Board deeply sympathizes with the Veteran and his family and does recognize the particularly difficult circumstances that they have faced. The Board, however, is bound by the law and is without authority to grant benefits on an equitable basis, regardless of meritorious service. See 38 U.S.C. §§ 511, 7104 (West 2012); see also Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (VA cannot "extend . . . benefits out of sympathy for a particular veteran" and further noting that a law that is plain is binding, and leaves nothing for interpretation.) The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). This is a case where the law is dispositive. The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Given the foregoing, the Board has no choice but to deny the appellant's claim of entitlement to an effective date prior to January 19, 2011, for the grant of a 100 percent rating for service connection for mood disorder based on the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to an effective date of January 19, 2011, but no earlier, for the assignment of a 100 percent rating for mood disorder with manic features secondary to cerebrovascular accident and PTSD is granted, subject to the laws and regulations governing the award of monetary benefits; entitlement to an effective date prior to January 19, 2011, for the grant of service connection for a mood disorder is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs