Citation Nr: 18156156 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 15-18 976 DATE: December 11, 2018 ORDER The substantive appeal received May 14, 2014, as to the issue of an increased rating for service-connected posttraumatic stress disorder (PTSD), was timely. REMANDED Entitlement to an increased disability rating, in excess of 70 percent, for service-connected PTSD is remanded. FINDING OF FACT 1. In February 2014, the Veteran was informed by the agency of jurisdiction that he had one year to file an appeal of the denial of a higher rating for his PTSD. 2. The Veteran’s substantive appeal was received on May 14, 2014. CONCLUSION OF LAW The Board will waive any issue of timeliness for the substantive appeal and conclude that a timely appeal of the denial of a higher rating for PTSD was filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.300, 20.302(b), 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from July 1978 to July 1982. 1. The substantive appeal received May 14, 2014, as to the issue of an increased rating for service-connected posttraumatic stress disorder (PTSD), was timely filed. In October 2014, the Veteran’s attorney submitted a notice of disagreement (NOD). Therein, the attorney stated that, “(p)lease accept this letter in response to your correspondence of September 22, 2014. In this correspondence, your office asserted that claimant’s May 14, 2014 Notice of Disagreement (NOD) as to Decision Review Officer Decision dated January 29, 2014 is untimely. We disagree with this assertion.” In order for an appellant to continue his claim(s), a substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed. 38 C.F.R. § 20.302. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. If several issues were addressed previously, the substantive appeal should indicate which issues are being appealed. The substantive appeal should also set out specific arguments relating to errors of fact or law. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error. See 38 C.F.R. § 20.202. In this case, a September 2011 rating decision denied the Veteran’s entitlement claim for total disability due to individual unemployability (TDIU). The same decision from the agency of original jurisdiction (AOJ) continued a 50 percent disability rating for the Veteran’s service connected posttraumatic stress disorder (PTSD). The Veteran was sent notice of this decision in September 2011. In March 2012, the Veteran submitted his NOD with the denial of TDIU and the 50 percent rating assigned for his service-connected PTSD. In January 2014, the AOJ delivered a rating rating decision and statement of the case (SOC). Both the rating decision and SOC continued to deny the Veteran’s TDIU claim. Both the rating decision and SOC increased the Veteran’s disability rating for PTSD with major depressive disorder and psychotic features from 50 to 70 percent disabling. The effective date for the Veteran’s increased disability remained October 15, 2010. Important to this Board analysis, the Veteran’s expressed disagreement with the 70 percent rating decision valuation, for service-connected PTSD, was received on May 14, 2014. In September 2014, the AOJ notified the Veteran that a substantive appeal of the denial of a higher rating for PTSD was not timely received. As noted above, in October 2014, the Veteran’s attorney submitted another NOD. Therein, the highlighted crux of the attorney’s argument was as follows: “Given that the RO granted an increased rating, issuance of a Statement of the Case was premature, at least with respect to the claim for an increased rating. In short, claimant had one year from the Decision Review Officer decision of January 19, 2014 in which to file an NOD. Therefore, claimant’s NOD was timely on May 14, 2014.” In January 2014, the Veteran was furnished with a statement of the case addressing the issue of entitlement a higher evaluation for PTSD. He was informed that he had 60 days to perfect an appeal. However, in the AOJ later mailed a copy of the January 19, 2014 rating decision to the Veteran in February 2014. Notwithstanding the fact that he was previously advised that he had 60 days to perfect an appeal, the February 2014 correspondence informed him that “If you do not agree with our decision, please download and complete VA Form 21-0958 . . . You have one year from the date of this letter to appeal the decision.” The Veteran responded by submitting a completed VA 21-0958 within one year of notification of the decision. The United States Court of Appeals for Veterans Claims (Court) has held that the 60-day period for filing a substantive appeal is not jurisdictional in nature, and the Board may waive any issue of timeliness. Percy v. Shinseki, 23 Vet. App. 37, 43-44 (2009). In light of the instruction from the RO that he had one year to appeal file an appeal of the disability assigned, the Board will waive any issue of timeliness for the substantive appeal. Consequently, the Board finds that the substantive appeal received May 14, 2014, as to the issue of an increased rating for service-connected PTSD, was timely. REASONS FOR REMAND 2. Entitlement to an increased disability rating, in excess of 70 percent, for service-connected PTSD is remanded. Since issuance of the January 2014 statement of the case additional records have been associated with the claims folder. Remand is required in order for the agency of original jurisdiction (AOJ) to review these records. Moreover, the Veteran was last afforded a VA examination addressing the severity of his PTSD in December 2013. On remand, the Veteran should be afforded an examination to address the severity of his PTSD. Consequently, the matter is REMANDED to the AOJ for the following action: 1. The Veteran should be asked to identify all outstanding private and VA treatment records for his PTSD. Thereafter, the AOJ should take appropriate action to attempt to obtain any identified outstanding records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel