Citation Nr: 18140568 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-11 945 DATE: October 3, 2018 ORDER As the Veteran did not file a timely notice of disagreement (NOD) with the August 2012 rating decision that assigned a July 12, 2011 effective date with the grant of service connection for bipolar disorder, the appeal is denied. Service connection for myofascial pain syndrome (claimed as a muscle condition) is granted. Service connection for anxiety disorder is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An August 2012 rating decision granted service connection for bipolar disorder and assigned a 30 percent rating, effective July 12, 2011. 2. A NOD pertaining to the bipolar disorder issue was not received by VA within one year of the date of mailing of notice of the August 2012 decision. 3. The Veteran’s May 2014 NOD was not timely. 4. The evidence is at least in equipoise as to whether the Veteran’s myofascial pain syndrome disorder is related to his active service. 5. The Veteran’s diagnosed anxiety disorder is related to service. 6. The Veteran does not have a diagnosis of PTSD as is defined under the applicable diagnostic criteria for VA purposes. CONCLUSIONS OF LAW 1. Neither the Veteran nor his representative filed a timely NOD with the August 2012 rating decision that granted service connection for bipolar disorder and assigned a 30 percent rating effective July 12, 2011, and the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria to establish service connection for myofascial pain syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria to establish service connection for anxiety disorder are met. 38 U.S.C. §§ 1110, 5107 (2012) 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria to establish service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107 (2012) 38 C.F.R. 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to September 1992 with subsequent Reserve service. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Timeliness of a Notice of Disagreement The essential facts in this case are not in dispute. There is no possibility that any additional notice or development would aid the Veteran in substantiating his claim, and as the law and not the facts is dispositive, the provisions regarding development and notice do not apply. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). An appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is issued to the claimant by VA. 38 U.S.C. § 7105 (a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. Any written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result, will constitute a notice of disagreement. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written must be considered in determining whether a communication constitutes a notice of disagreement. Jarvis v. West, 12 Vet. App. 559 (1999). All communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). A claimant or representative must file a NOD within one year from the date that the RO mailed notice of a decision. 38 C.F.R. § 20.302 (a). If a notice of disagreement is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105 (c). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely notice of disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The issue of whether a notice of disagreement has been filed on time is appealable. If the claimant or representative protests an adverse decision made by the RO with respect to the timely filing of a notice of disagreement, the claimant will be furnished a statement of the case on the issue of whether the notice of disagreement was timely. 38 C.F.R. §§ 19.34, 20.101(c). In this ase, the RO granted the Veteran’s claim for service connection for bipolar disorder in an August 2012 rating decision. At that time, the RO assigned a 30 percent rating for bipolar disorder, effective July 12, 2011. The Veteran was notified of this decision and his appellate rights in August 2012. The evidence does include a September 2012 NOD; however, this document specifically addressed the Veteran’s disagreement with the PTSD, numbness in feet, and muscle pain issues, which were also adjudicated in the August 2012 rating decision. The September 2012 statement made no mention of the Veteran’s bipolar disorder. The earliest indication of the Veteran’s disagreement with the effective date assigned for the grant of service connection for bipolar disorder was his May 2014 NOD. No earlier communication from the Veteran or his representative was received after the August 2012 rating decision that would constitute a timely NOD pertinent to the bipolar disorder issue. In conclusion, the Board finds that a NOD was not timely filed to the August 2012 rating decision regarding the effective date assigned for the award of service connection for bipolar disorder. Therefore, the benefit sought is denied because the claim lacks legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Myofascial Pain Syndrome The Veteran seeks service connection for a muscle condition, which he believes is related to service. The Veteran underwent a VA fibromyalgia examination in April 2016. At that time, the examiner stated that the Veteran did not have a diagnosis of fibromyalgia, but had myofascial pain syndrome. In this regard, the examiner noted that the widespread nature of the Veteran’s pain, coupled with the fact that he had been treated with acupuncture with good effect, led the examiner to believe that he suffered from myofascial pain syndrome, which was a diagnosable chronic multi-symptom illness with a partially explained etiology. Moreover, although the examiner indicated that myofascial pain syndrome was not related to Gulf War exposure, it was opined that it would be considered to have been caused his back and shoulder conditions and the “wear & tear” of all the strenuous activity of 21 years of military service. VA obtained another medical opinion in May 2016. At that time, the examiner was in disagreement with the April 2016 VA examiner that diagnosed the Veteran with myofascial pain syndrome. The May 2016 examiner did not offer any other possible diagnoses or explanation for the Veteran’s claimed muscle condition. As such, this opinion is inadequate and afforded little probative weight. The remaining evidence has been reviewed by the Board, but it does not contain an opinion as to the etiology of the Veteran’s muscle condition. Upon review of all the evidence of record, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran’s myofascial pain syndrome is, at least in part, related to service. In this regard, although the Veteran served on active duty from 1976 to 1992 with subsequent period of Reserve service, the Board finds that the April 2016 VA medical opinion regarding “wear & tear” demonstrates that the Veteran’s myofascial pain syndrome is, at least in part, related to his 16-year period of active duty service. Moreover, the Veteran has also been awarded service connection for right and left shoulder disabilities. The April 2016 medical opinion also demonstrates some relationship to the service-connected shoulder disability. See 38 C.F.R. § 3.310 (a). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for myofascial pain syndrome is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Anxiety Disorder and PTSD The Veteran seeks service connection for PTSD. However, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. As such, although the Veteran seeks service connection for PTSD, the Board will also consider other diagnosed psychiatric disorders. The Board notes that he has already been awarded service connection for bipolar disorder. He has been in receipt of disability benefits from the Social Security Administration since 1995 for his psychiatric disability. On review, the Board finds that service connection for anxiety disorder is warranted. Although the Veteran has already been awarded service connection for bipolar disorder, the Veteran’s anxiety disorder has been found to be a separate diagnosis with distinct symptoms. See Esteban v. Brown, 6 Vet. App. 259 (1994). In this regard, the evidence includes a March 2012 VA examination report where the examiner diagnosed the Veteran with bipolar disorder and anxiety disorder. It was further determined that the Veteran did not meet the full criteria for PTSD. The examiner then specifically indicated that it was possible to differentiate what symptoms were attributable to each diagnosis. In this regard, the Veteran’s bipolar disorder resulted in grandiosity, decreased need for sleep, pressured speech, delusional thinking, impulsivity, and excessive involvement in pleasurable activities that had a high potential for painful consequences. In contrast, the Veteran’s anxiety disorder was noted to result in nightmares, avoidance of trauma-related thoughts, sleep problems, and increased anxiety in stressful situations. Moreover, concerning the Veteran’s anxiety, the March 2012 VA examiner opined that his symptoms were “a direct result of trauma he [the Veteran] experienced in the military.” The examiner noted that the Veteran reported having these symptoms in the early 1990s as a result of his deployment to Kuwait, Saudi Arabia, and Iraq. The Board finds that the March 2012 VA medical opinion weighs in favor of the claim that the Veteran’s anxiety disorder is related to service. There are no contradictory opinions of record. For these reasons, the Board finds that service connection for anxiety disorder, which has been found to have separate and distinct symptoms of the already service-connected bipolar disorder, is warranted. However, the weight of the evidence of record does not show a current PTSD diagnosis that conforms with the DSM IV or 5 criteria. As noted above, the March 2012 VA examiner indicated that the Veteran did not meet the full criteria for PTSD. This same conclusion was reached in a separate VA psychiatric examination dated in July 2014. Although VA treatment records indicated that the Veteran had a history of PTSD, those record contained no formal diagnoses of PTSD. Instead, the Veteran continued to be diagnosed with Axis I bipolar disorder. See e. g., February 2016 VA mental health notes. Moreover, while an October 1999 TDRL Evaluation noted AXIS I diagnoses of bipolar disorder and PTSD, those diagnoses are outside of the current appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, only bipolar disorder (and not PTSD) was later confirmed, as evidenced by a September 2000 private psychological evaluation from Dr. G. S., which was conducted less than 1 year following the TDRL diagnoses. At that time, Dr. G. S. indicated that the Veteran suffered from bipolar disorder. Dr. G. S. specifically stated that “in addition, he may suffer for PTSD and from a panic disorder, but there was no sufficient indication of these in the medical records to give these additional diagnoses at this time.” Thus, the Board finds that the diagnosis of PTSD was speculative in nature and, as indicated, the subsequent evidence affirmatively shows that the Veteran does not meet the criteria for a diagnosis of PTSD. In sum, and for the reasons expressed above, the Board finds that the weight of the probative evidence demonstrates that the Veteran does not meet the DSM criteria to establish a current diagnosis of PTSD. Service connection for PTSD “requires medical evidence diagnosing the condition in accordance” with the criteria established in the DSM. 38 C.F.R. 3.304 (f), 4.125(a). “Mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a diagnosis.” Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Board carefully considered the Veteran’s statements in which he contends that he has PTSD. The Veteran is competent to report observable symptoms that he may have experienced at any time. See Layno, 6 Vet. App. 223, 225. However, without the appropriate psychological training and expertise, he, as a layperson, is not competent to provide an opinion on a complex medical matter, such as relating symptoms to the specific diagnostic criteria outlined in the DSM. Jandreau, 492 F.3d 1372, 1377. In this regard, while there is evidence of a current psychiatric disability, namely persistent depressive disorder, the weight of the probative evidence demonstrates the Veteran’s psychiatric disability does not include PTSD. For these reasons, the Board finds that a preponderance of the evidence is against a finding of a current PTSD diagnosis, an essential criterion for establishing service connection for PTSD as outlined in 38 C.F.R. 3.304 (f). As the threshold element of the claim has not been met, the claim for service connection for PTSD must be denied. 38 U.S.C. 5107 (b); 38 C.F.R. 3.102. REASONS FOR REMAND The Veteran is also seeking entitlement to a TDIU based on his service-connected disabilities. As such, the TDIU claim is inextricably intertwined with the Board’s grant of service connection for myofascial pain syndrome and service connection for anxiety disorder and the pending assignment of their corresponding rating percentages by the RO. Consideration of the TDIU must be deferred pending implementation of the awards granted herein. The matters are REMANDED for the following actions: 1. Implement the Board’s decision herein granting service connection for myofascial pain syndrome and service connection for anxiety disorder, including assigning disability ratings and effective dates. The Veteran and his representative should be properly notified thereof and of his appellate rights. 2. After completing the above, the Veteran’s TDIU claim should be readjudicated based on the entirety of the evidence. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel