Citation Nr: 18149061
Decision Date: 11/08/18	Archive Date: 11/08/18

DOCKET NO. 16-40 872
DATE:	November 8, 2018
ORDER
Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) is dismissed.  
FINDING OF FACT
The Veteran did not submit a Notice of Disagreement (NOD) to appeal VA's initial rating of his PTSD. 
CONCLUSION OF LAW
The criteria for timely filing a NOD to the August 2016 rating decision granting service connection for PTSD and assigning an initial rating of 70 percent have not been met.  38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from May 1998 to May 2002 and from July 2002 to September 2006.
This matter comes before the Board of Veterans’ Appeals (Board) based on an August 2016 rating decision of the Department of Veterans Affairs (VA). 
Issue: Entitlement to a rating greater than 70 percent for posttraumatic stress disorder (PTSD) 
The Board must have jurisdiction to review the denial of a claim.  To have jurisdiction, the Veteran must submit a written Notice of Disagreement (NOD) within one year of notification of VA's denial of the claim to initiate an appeal.  
The Veteran claimed service connection for PTSD in November 2011.  VA denied the Veteran's claim in August 2013.  The Veteran appealed VA's denial in November 2013.  
As the claim was in appellate status, VA created a draft rating decision dated August 9, 2016 granting service connection for PTSD.  The same day, VA, for some unknown reason, issued a Statement of the Case (SOC) for the issue on the title page above, i.e., a rating greater than 70 percent for PTSD.  VA noted in the SOC that "a separate decision granted entitlement to service connection for PTSD.  You will receive additional information regarding this decision under a separate cover."  The Veteran, through counsel, submitted a VA Form 9 on August 22, 2016 in response to the SOC.
VA did not promulgate the grant of service connection until December 13, 2016. VA mailed the standard notification letter which included the now-promulgated August 2016 rating decision.  In July 2017, the Veteran, through counsel, submitted an NOD to a rating decision purportedly dated December 31, 2016.  The undersigned, not seeing a rating decision of this date in the claims file, presumes the Veteran was referring to the December 13, 2016 notification letter and August 2016 rating decision.  The Veteran disagreed, as indicated on the NOD, with "service connection" and the "effective date of award." 
VA erred by issuing the SOC in August 2016.  VA had not notified the Veteran of his grant of service connection, and by extension his right to appeal the initial rating assigned, until December 13, 2016.  Therefore, the Veteran could not have appealed something for which he was not notified, so the August 2016 SOC is a nullity.
The Veteran, through counsel, timely appealed two issues – "service connection" and the "effective date of award."  VA has recorded the Veteran's NOD in the Veterans Benefits Management System, and it is actively working this NOD.  It is unclear why the Veteran appealed "service connection" given that the August 2016 rating decision granted service connection, but the undersigned will permit VA to address this.
Critically, the Veteran, through counsel, failed to appeal the initial rating VA assigned.  The VA Form 9 the Veteran filed, derived from the nullified August 2016 SOC, is itself a nullity for the same reason as the SOC.  The Veteran had the opportunity to appeal the rating VA assigned, but did not, including but not limited to, on the NOD he submitted in July 2017.  Accordingly, pursuant to 38 U.S.C. § 7105(d) and 38 C.F.R. § 20.101(d), the Board must dismiss the claim.  


 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Sopko, Counsel