Citation Nr: 18143460 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-47 488 DATE: October 19, 2018 ORDER The Notice of Disagreement (NOD) received January 9, 2014 was timely with regard to the eleven issues adjudicated in the January 2013 rating decision. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for right ear hearing loss is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder is remanded. Entitlement to service connection for left side numbness associated with back disorder is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder is remanded. Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to an effective date earlier than February 3, 2012 for the establishment of service connection for left ear hearing loss is remanded. Entitlement to an increased rating for left varicocele is remanded. Entitlement to an increased rating for left testicle atrophy is remanded. Entitlement to total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On January 10, 2014, VA received a Notice of Disagreement appealing the January 2013 rating decision to the extent it denied service connection for a psychiatric disorder, as well as a VA form 21-22a appointing the above-named attorney as the Veteran’s representative. 2. In a February 2014 written notice, the VA Regional Office sought clarification of the issue(s) the Veteran was appeal, but did not send a copy of that written notice to the Veteran’s representative. 3. In August 2014, VA received the Veteran’s “Supplemental Notice of Disagreement” listed additional issues addressed in the January 2013 rating decision that were being appealed. CONCLUSION OF LAW The NODs received January 2014 and August 2014 were timely to appeal the claims of entitlement to service connection for a psychiatric disorder, right ear hearing loss and left side numbness; whether evidence has been received to reopen the previously denied claims of entitlement to service connection for a back disorder and a neck disorder; entitlement to higher ratings for left ear hearing loss, left testicle atrophy, and left varicocele; and entitlement to a TDIU. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.26, 19.28, 20.200, 20.201, 20.302 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1979 to September 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that the Veteran’s NODs with regard to a January 2013 rating decision were not timely. Timeliness of NOD The issue in this case is whether NODs received by VA in January 2014 and August 2014 constitute timely appeals of issues decided in a January 2013 rating decision. By way of background, the Veteran asserted various claims that were denied in a January 2013 rating decision. As the time that rating decision was issued, the Veteran was represented by a State Service Organization. Notice of the January 2013 rating decision was mailed to the Veteran and his then-current representative on January 11, 2013. The evidence of record shows that on January 9, 2014, the Veteran’s above-named representative sent by overnight delivery written correspondence disagreeing with the denial of service connection for post-traumatic stress disorder (PTSD) and identifying the January 2013 rating decision as the decision being appealed. The claims file reflects that the representative also provided an executed VA form 21-22a Appointment of Individual as Claimants Representative to effectuate a change in representation. A date-stamped copy of the NOD shows that the document was received by VA on January 10, 2014. On February 3, 2014, the RO sent a notice letter to the Veteran informing him that his January 2014 NOD was unclear as to the specific issue he was appealing, because the January 2013 rating decision did not address a claim for “PTSD.” The RO informed the Veteran that he had 30 days from the date of the letter, or until March 5, 2014, to specifically state which issues he was appealing. This notice letter was not sent to the above-named representative. In August 2014, the RO received a “supplemental” NOD from the representative indicating that the Veteran also disagreed with nine additional issues addressed in the January 2013 rating decision. In an August 2014 decision, the RO found that the NODs received in January 2014 and August 2014 were untimely. The Veteran appealed. In Veteran contends that the NOD receive by VA on January 10, 2014 was a timely appeal because it was accompanied by a VA form 21-22a changing his representative, and because it was received by VA within one year of the notice of the January 2013 rating decision. The Board agrees. During the relevant time, a “notice of disagreement” was defined as a written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an AOJ and a desire to contest the result. 38 C.F.R. § 20.201 (2014). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. Id; Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002). A claimant, or his or her representative, must file a NOD with a determination by the RO within one year from the date that VA mails notice of the determination to the claimant. Otherwise, that determination will become final. 38 C.F.R. § 20.302. Here, the file shows that the RO received the NOD within one year of the mailing of the January 2013 rating decision. Although this document was signed by the Veteran’s representative, the representative had also provided an executed VA Form 21-22a with the Veteran’s NOD. Thus, the January 204 NOD is timely with regard to the issue of entitlement to service connection for a psychiatric disorder. The Board notes that even though the January 2013 rating decision did not specifically address a claim of service connection for PTSD, it did address a claim seeking service connection for depression and anxiety, and that a claim for one psychiatric disorder encompasses all psychiatric disorders reasonably identified by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran also asserts that the August 2014 NOD is timely with regard to the issues identified in that document because the RO sought to clarify the issues on appeal, but failed to send the written clarification letter to the Veteran’s then-current representative. Again, the Board agrees. During the relevant period on appeal, 38 C.F.R. § 19.26(b) provided that if within one year after mailing an adverse decision the RO receives a written communication expressing dissatisfaction or disagreement with an adverse decision, but the RO cannot identify which denied claims the Veteran wants to appeal, then the RO will contact the claimant to request clarification of the claimant’s intent. Subsection (2) to the part states that if the RO contacts the Veteran in writing, VA “will mail a letter requesting clarification to the claimant and send a copy to his or her representative and fiduciary, if any.” 38 C.F.R. § 19.26(b)(2). Here, the RO did seek clarification in writing, but did not send a copy of this clarification letter to the Veteran’s representative. Because the RO did not comply with its regulatory obligation, the Board finds that the 60-day period for the Veteran to submit a response to the February 2014 clarification letter did not begin to run. Cf. Beraud v. McDonald, 766 F.3d 1402, 1406 -07 (Fed. Cir. 2014) (holding that where VA fails to discharge its duty to determine whether newly received evidence is “new and material” under 38 C.F.R. § 3.156 (b), the claim does not become final); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (a claim will be considered to be pending if VA fails to provide proper notice of denial and right to appeal an adverse decision) citing to Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). Once a claim has been placed in appellate status by the filing of an NOD, it cannot be resolved by any further RO decision that does not grant the benefit sought in full. Jones v. Shinseki, 23 Vet. App. 122, 125 (2009) (where a claim is placed in appellate status by virtue of filing of an NOD, a subsequent RO decision does not resolve the appeal), aff’d, 619 F.3d 1368 (Fed. Cir. 2010); Juarez v. Peake, 21 Vet. App. 537, 543 (2008) (citing Myers v. Principi, 16 Vet. App. 228 (2002)) (once an NOD has been filed, further RO decisions cannot resolve the appeal that remains pending before the Board; only a subsequent Board decision can resolve an initiated, but not completed, appeal). As the Board finds that both the January 2014 and August 2014 NODs were timely, the issues addressed in those documents are appropriately on appeal. REMANDED ISSUES In light of the Board’s determination that the NODs received January 2014 and August 2014 were timely appeals of the decisions rendered in the January 2013 rating decision, remand of the identified claims is warranted for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to service connection for a psychiatric disorder, right ear hearing loss and left side numbness; whether evidence has been received to reopen the previously denied claims of entitlement to service connection for a back disorder and a neck disorder; entitlement to higher ratings for left ear hearing loss, left testicle atrophy, and left varicocele; and entitlement to a TDIU. If the Veteran perfects an appeal   by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel