Citation Nr: 18142471 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-20 701 DATE: October 15, 2018 ORDER An effective date prior to August 19, 2014, for a combined 70 percent rating is denied. FINDINGS OF FACT 1. The Veteran did not file a substantive appeal within 60 days of the issuance of the February 28, 2013 statement of the case which addressed a December 2010 rating decision (which granted service connection for posttraumatic stress disorder and assigned a 10 percent rating; and, which granted service connection for a right knee disability, gastroesophageal reflux disease, a lumbar spine degenerative disc disease (DDD), status post left clavicle fracture, genital warts, hemorrhoids, left knee strain and left foot stress fracture, all rated as noncompensable.) 2. In an August 2012 rating decision, the RO granted service connection for headaches and assigned an initial 30 percent rating, effective from May 3, 2011. 3. The Veteran submitted a claim for increased ratings for his service-connected PTSD, GERD, and right knee disability on August 19, 2014; a March 2015 rating decision granted increased ratings of 50 percent for PTSD, 10 percent for GERD, and 10 percent for the right knee disability, effective from August 19, 2014. 4. The Veteran’s service-connected disabilities of PTSD, GERD, right knee disability and headaches combine to a rating of 70 percent effective from August 19, 2014 onward; a combined 70 percent schedular rating is not warranted before August 19, 2014. CONCLUSIONS OF LAW 1. The December 2010 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The criteria for an effective date earlier than August 19, 2014, for the award of a combined rating of 70 percent, have not been met. 38 U.S.C. §§ 1115, 5110, 7105; 38 C.F.R. §§ 3.4(b)(2), 3.31, 3.204, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from March 1990 to March 2010. The Board notes that the Veteran was originally awarded service connection in December 2010 for psychiatric, back, right knee, left knee, gastrointestinal, and left shoulder disabilities, effective April 1, 2010. In March 2015, the Regional Office (RO) increased the Veteran’s disability ratings for his service-connected psychiatric disability, gastrointestinal reflux disease, and right knee disorder, effective August 19, 2014. His total combined rating was 70 percent. Subsequently, in March 2015, the Veteran filed a notice of disagreement only with respect to the effective date of the “combined rating,” which the Veteran asserted should go back to the date he was awarded service-connection for those disabilities. Further, during the course of the appeal, the Veteran has alternatively asserted that he was unable to perfect his appeal with respect to the initial disability ratings assigned in the December 2010 rating decision due to his medical conditions. As such, he essentially contends that VA should waive the requirement for a substantive appeal and/or accept his current appeal as an appeal of the initial disability ratings assigned in the December 2010 rating decision. However, while the RO did not specifically certify the issue of whether or not the Veteran is entitled to an earlier effective date for the disability ratings that were increased in the March 2015 rating decision, and/or entitled to initial increased ratings for the disabilities listed in the December 2010 rating decision, the Board notes that the RO determined that the Veteran did not perfect his appeal with respect to the initially assigned disability ratings in the December 2010 rating decision. Therefore, given that the RO actually determined that the Veteran did not perfect that appeal, the Board has jurisdiction over this issue. Earlier Effective Date Entitlement to an effective date earlier than August 19, 2014, for a combined 70 percent rating The Veteran disagrees with the effective date of the 70 percent combined rating for all of his service-connected disabilities. He contends that the 70 percent rating should be effective as of April 1, 2010, the date he was first eligible for VA compensation benefits. The combined rating is assigned utilizing rating table located at 38 C.F.R. § 4.25 that considers all of the Veteran’s service-connected disabilities. In this case, application of the 38 C.F.R. § 4.25 table does not show that a 70 percent combined rating is appropriate earlier than August 19, 2014. Notably, the Veteran does not contend that there was an error in the way that the combined rating was computed. Rather, as discussed, the Veteran asserts that that the effective date of his increased ratings (which combine to 70 percent as August 19, 2014) should be retroactively applied to the date he was first awarded service connection. In support, the Veteran asserts that he appealed the initial disability ratings assigned in the December 2010 rating decision. However, he claims that he did not perfect that appeal because his service-connected disabilities prevented him from perfecting his appeal. Under the relevant VA regulations, a veteran has sixty days from the date of the statement of the case (SOC), or within one year of the notification of the rating decision, to file a timely substantive appeal. 38 C.F.R. § 20.302(b). In February 2013, a statement of the case was issued and mailed to the Veteran’s address of record. The RO provided notice and an explanation to the Veteran of its determination as well as his appellate rights. The RO specifically notified the Veteran of his rights to appeal, informed him of the applicable appellate procedures (and provided him with a VA Form-9), and notified him of the time limit to perfect his appeal. However, the Veteran did not file a substantive appeal, and instead filed this herein claim as part of his March 2015 notice of disagreement. As discussed, the Veteran does not content that he submitted a substantive appeal. Instead, he asserts that “due to my rated medical conditions I did not understand some of the [appeals] process,” and therefore did not submit a substantive appeal. Nevertheless, given that the Veteran was notified of his appellate rights and the procedures for filing a timely substantive appeal (including notice of the applicable 60-day appeal period), in conjunction with the fact that the Veteran had a representative, the Board finds that the Veteran’s failure to file a substantive appeal was not legally justifiable. 38 C.F.R. § 20.302. The Board has considered that a substantive appeal is not a jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). However, VA has not acted as if the appeal has been perfected or otherwise lead the Veteran to believe his claims were on appeal. Additionally, there are no other circumstances which would persuade the Board that the timeliness of the substantive appeal should be waived in this case. As such, the Board finds that the Veteran did not perfect his appeal with respect to the December 2010 rating decision. 38 U.S.C. § 7105(d)(3). Lastly, given that the December 2010 rating decision is final, to the extent the Veteran asserts that he is entitled to an earlier effective date for the disability ratings that were assigned in the March 2015 rating decision, the Board finds that this is a free-standing earlier effective date claim. Specifically, given that the Veteran has not made a claim of clear and unmistakable error, but rather, has simply indicated that he is entitled to an earlier effective date, the Board finds that this is a free-standing earlier effective date claim that violates the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date is a nullity). Therefore, the Board does not have jurisdiction over this issue. In summary, the preponderance of the evidence in the record is against finding that an effective date earlier than August 19, 2014, for a combined rating of 70 percent is warranted. The appeal is accordingly denied. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel