Citation Nr: 18146572 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-34 266A DATE: October 31, 2018 ORDER Entitlement to an effective date prior to October 19, 2010, for the establishment of service connection for a psychiatric disorder is denied. REMANDED ISSUES Entitlement to service connection for a low back disorder, to include as secondary to a service-connected knee disorder is remanded. Entitlement to an initial rating in excess of 30 percent for adjustment disorder with depression, anxiety and panic attacks prior to May 3, 2017, is remanded. Evaluation of right knee arthritis, evaluated as 10 percent disabling from August 13, 2007, 100 percent from February 3, 2011, and 10 percent from June 1, 2011, is remanded. Evaluation of status post right knee anterior cruciate ligament (ACL) repair, currently evaluated as 10 percent disabling from July 17, 2003, and 20 percent from October 19, 2010, is remanded. Evaluation of left knee strain, currently evaluated as 10 percent disabling, is remanded. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) prior to May 3, 2017, is remanded. FINDINGS OF FACT 1. A claim of entitlement to service connection for a psychiatric disorder was last denied in a November 2007 rating decision that became final because the Veteran did not appeal or submit new and material evidence within one year. 2. A new claim of entitlement to service connection for a psychiatric disorder was received by VA on October 19, 2010, and service connection was granted effective that date. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to October 19, 2010, for the establishment of service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1992 to September 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and September 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in April 2016 and in June 2018. The Board has recharacterized the issue of entitlement to an earlier effective date for the 100 percent rating for adjustment disorder as entitlement to a higher initial rating prior to May 3, 2017, to better reflect the Veteran’s contentions as addressed during the June 2018 hearing. The Board notes that an additional issue currently before the Board is addressed in a separate decision. Earlier Effective Date for Service Connection The Board finds that an earlier effective date for the grant of service connection for adjustment disorder with depression, anxiety and panic attacks (adjustment disorder) must be denied. The Veteran originally sought service connection for a psychiatric disorder in 2004 and his claim was denied in a September 2004 decision. His claim was last denied in a November 2007 rating decision. The Veteran was notified of this decision by way of a letter that was sent to his last known address of record that same month. There is no indication that the letter was returned as undeliverable. The Veteran did not submit a Notice of Disagreement with the November 2007 rating decision, nor did he submit any additional evidence concerning his claim within one year of that rating decision. Thus, the decision became final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Although and the Veteran contends that he did not receive the November 2007 notification, the presumption of regularity applies and has not been rebutted. There is a presumption of regularity that government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to officials at the RO who are responsible for notifying claimants of a rating decision. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). A claimant may rebut the presumption by submitting clear evidence to the effect that VA’s regular mailing practices were not followed. An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process. Jones v. West, 12 Vet. App. 98, 102 (1998). Here, there is insufficient evidence to rebut the presumption of regularity. The November 2007 notice letter was sent to the Veteran’s then current address of record. Neither the November 2007 notice letter nor any other correspondence addressed to that address was returned as undeliverable. When the Veteran submitted a claim seeking an increased rating for his right knee disability in May 2009, he listed the same address as his current address at that time. There is no evidence showing that the Veteran was using a different address in November 2007 or that the November 2007 notice letter was incorrectly addressed. Thus, the presumption of regularity has not been rebutted. Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q). As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which as noted above was received by VA on October 29, 2010. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Because the Veteran’s adjustment disorder began in service, service connection was established. It does not follow, however, that because service connection is warranted that the effective date of service connection be the day following service or the date he filed his original claim because doing so would render meaningless many of the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Id. at 1332. The record does not show that a claim to reopen was received by VA prior to October 2010. Thus, under the law, there is no basis to assign an earlier effective date for the establishment of service connection for an adjustment disorder. The Board acknowledges the Veteran’s contention that in November 2007, he was not mentally sound and thus not capable of submitting a Notice of Disagreement with the November 2007 rating decision. He contends that the time for filing a Notice of Disagreement should have been tolled. See June 2018 Hr’g Tr. at 30-37. To benefit from equitable tolling, a claimant must demonstrate (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Aldridge v. McDonald, 837 F.3d. 1261 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005) (applying equitable tolling with regard to the filing of a Notice of Appeal). One such “extraordinary circumstance” that may prevent a veteran from making a timely submission is illness or incapacity that renders a claimant incapable of rational thought or deliberate decision making, or of handling his or her own affairs or of functioning in society. See Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004); see also Bove v. Shinseki, 25 Vet. App. 136, 144 (2011). This standard requires more than a decrease in mental capacity or functioning, but rather an inability to think rationally or deliberately, handle affairs or function in society. See Barrett, 363 F.3d at 1321; see also Bove, 25 Vet. App. at 144. A medical diagnosis alone or vague assertions of mental problems will not suffice to meet this standard. Barrett, 363 F.3d at 1321; Bove, 25 Vet. App. at 144 (bald assertions that mental illness prevented the claimant from filing his appeal, without any supporting evidence to demonstrate that he was incapable of functioning or making decisions due to mental illness, were insufficient to warrant equitable tolling). In this case, the most probative evidence of record does not support a finding that the Veteran’s failure to file a timely Notice of Disagreement with the November 2007 rating decision was the 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 Veteran testified that at the relevant period he was drinking about 6 to 12 beers a night and was suffering from stress, anxiety, and other mental health issues. See June 2018 Hr’g Tr. at 31-34. He further reported that he was incarcerated for driving under the influence around this time. However, he also reported that he was taking care of his bills and legal affairs, understood his legal rights and understood that he had one year to file an appeal. See June 2018 Hr’g Tr. at 31-36. Although the Veteran suggests that he was incarcerated in 2007, there is no evidence that he was incarcerated for the entire one-year period in which to submit a Notice of Disagreement or that he was unable to appeal his determination while incarcerated. In sum, while the record shows that the Veteran was drinking heavily and suffering psychiatric symptoms between November 2007 and November 2008, the most probative evidence does not support the conclusion that his condition resulted in such a decreased capacity for logical or rational thinking that it prevented him from submitting a timely Notice of Disagreement. The severity of his functional impairment during this time is simply not commensurate with the situations described in Barrett, which requires illness or incapacity that renders one incapable of rational thought or deliberate decision making, of handling affairs or of functioning in society. Thus, the Board finds that equitable tolling is not warranted in this matter. REMAND The claims seeking service connection for a low back disorder, increased ratings for an adjustment disorder and right and left knee disabilities, and entitlement to a TDIU are remanded. During the June 2018 hearing, the Veteran reported that his service-connected knee disabilities have worsened since the previous examination. A new exam in warranted. Snuffer v. Gober, 10 Vet. App. 400 (1997). A new examination is also warranted addressing the etiology of the Veteran’s low back disorder. In a December 2017 addendum medical opinion, the VA examiner opined that the Veteran’s low back disorder was not caused by his service-connected knee disabilities because the low back disorder was acute and recurrent, rather than of gradual onset. The examiner did not consider or address whether the Veteran’s low back disorder was aggravated by gait changes brought about by his service-connected knee condition. This issue should be addressed by an examiner on remand. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The record shows that there may be outstanding Social Security Administration records that are relevant to the claims on appeal. These records should be obtained if they are available. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Finally, the issue of entitlement to a TDIU is remanded as inextricably intertwined with the other remanded issues. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Schedule a VA examination to address the nature, onset and etiology of the Veteran’s low back disorder. For all disabilities and functional impairments identified, the examiner should state whether it is at least as like as not that the disability/functional impairment (1) had its onset in service; (2) is due to an injury or disease incurred in service; (3) is caused by a service-connected disability (including, but not limited to, the Veteran’s service-connected right knee and/or left knee disability, including his altered gait from those disabilities); and (4) is aggravated by a service-connected disability (including, but not limited to, the Veteran’s service-connected right knee and/or left knee disability, including his altered gait from those disabilities). In addressing these questions, the examiner should consider and address the Veteran’s reports of how he stands and/or walks favoring one side, indicating that it “[f]eels like one [leg is] longer than the other.” June 2018 Hr.’g Tr. at 54. 4. Schedule a VA examination to address the current nature and severity of the Veteran’s left and right knee disabilities. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel