Citation Nr: 1807485 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether a substantive appeal (VA Form 9) was timely filed with respect to the denial of service connection for posttraumatic stress disorder (PTSD) by a rating decision of January 2008. 2. Entitlement to service connection for hepatitis. 3. Entitlement to service connection for human immunodeficiency virus (HIV)/acquired immunodeficiency syndrome (AIDS). REPRESENTATION Veteran represented by: Allen W. Gumpenberger, Agent ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The issue of entitlement to service connection for HIV/AIDS is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisidiction (AOJ). FINDINGS OF FACT 1. The Veteran did not file a substantive appeal (VA-9 Form) setting out arguments relating to errors of fact or law within the later of 60 days from the date on which the August 2009 statement of the case (SOC) was sent to the Veteran, or within the remainder of the one-year period from the date of the January 2008 rating decision, which denied service connection for PTSD. 2. The Veteran does not have hepatitis. CONCLUSIONS OF LAW 1. A timely substantive appeal was not filed to perfect an appeal as to the January 2008 rating decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.302(b), 20.303, 20.305 (2017). 2. Hepatitis was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. VA has satisfied the notification and duty-to-assist provisions of the VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VCAA notice was provided to the Veteran by letters of September 2011 and November 2011. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain an opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). The evidence of record includes service treatment records, service personnel records, VA treatment records, private treatment records, and statements of the Veteran. The Veteran has identified no outstanding evidence pertaining to his disabilities that could be obtained to substantiate the claim, and the Board is unaware of any such evidence. The Veteran underwent a VA examination in October 2011. The examination report is adequate for adjudicatory purposes. See 38 C.F.R. § 3.159(c)(4) (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not raised any issue with respect to the duties to notify and assist. The Board is not required to search the record to address procedural arguments that a veteran has not raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). II. Timeliness of Substantive Appeal A January 10, 2008 rating decision denied service connection for PTSD. The Veteran filed a VA Form 9 in January 2008, which the RO properly construed as a notice of disagreement. A SOC of August 2009 continued the denial of service connection. In August 2010, the Veteran filed a statement noting his disagreement with the August 2009 statement of the case. A rating decision of June 2012 ruled that the August 2010 filing was untimely as a substantive appeal. The Veteran has appealed that ruling. See NOD of June 2012; VA Form 9 of April 2014. Appellate review is initiated by the filing of a notice of disagreement (NOD) and completed by the filing of a substantive appeal after a SOC has been furnished. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2017). A substantive appeal must be filed within 60 days from the date that the RO mails the SOC to the appellant, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC for purposes of determining whether an appeal has been timely filed. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302(b)(1) (2017). An extension of the 60-day period for filing a substantive appeal may be granted for good cause, but such extension request must be made prior to the expiration of the time limit for filing a substantive appeal. See 38 C.F.R. § 20.303 (2017). In the instant case, as noted above, service connection for PTSD was denied by way of a January 2008 rating decision. An SOC was issued on August 14, 2009. Therefore, the Veteran had 60 days from August 14, 2009 to file his substantive appeal. No correspondence from the Veteran relating to a mental health condition was received until November 2009. See VA Form 21-4138 dated November 24, 2009. Even if this document could be construed as a substantive appeal, it would be untimely since it was received more than 60 days from August 14, 2009. The Veteran's substantive appeal was therefore untimely. The Board also notes that the Veteran did not file a request for an extension of time to file his substantive appeal, and certainly not before the expiration of the period for filing a substantive appeal. See 38 C.F.R. § 20.303 (2017). The Board finds that a preponderance of the evidence is against the appeal. In reaching this conclusion, consideration has been given to Percy v. Shinseki, 23 Vet. App. 37 (2009), in which 38 U.S.C. § 7105 was held not to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal is untimely. The 60-day filing period is not jurisdictional, and VA is not required to close an appeal for failure to file a timely substantive appeal. In Percy, the RO had treated the veteran's claim as having been timely appealed for more than five years before ultimately deciding it was not. In the present case, the RO has taken no action to indicate to the Veteran that the service-connection issue remained on appeal from the January 2008 rating decision. This case is distinguishable from Percy, and the requirement of a timely substantive appeal is not waived. III. Hepatitis Service connection may be granted for a disability resulting from disease or injury incurred coincident with, or aggravated by, service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection generally requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the current disability. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2017). For veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, if the disability manifested to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). Hepatitis is not a listed chronic disease. The Veteran seeks service connection for hepatitis. See Veteran's claim of April 2011. The Veteran's service treatment records indicate a diagnosis of hepatitis B in April 1979 and hospitalization for 20 days. The Veteran underwent a VA examination in October 2011. Citing negative laboratory studies for hepatitis B infection, the examiner did not diagnose hepatitis B. The Veteran was also found not to have chronic hepatitis, liver malignancy, or cirrhosis. In response to the question of whether the Veteran's hepatitis is at least as likely as not incurred in, or caused by, his miliary service during which he was diagnosed and treated for viral hepatitis from April 1979 to May 1979, the examiner answered that the Veteran does not have a hepatitis infection based on current laboratory findings. The preponderance of the evidence is against finding that the Veteran currently has hepatitis. VA treatment records note the Veteran's receipt of the hepatitis B vaccine. See, e.g., VA treatment record of December 2016. A VA treatment record of November 2010 notes a transient positive AB test for hepatitis C. Specifically, the AB test was negative in 2001, positive in 2003, and negative in 2010. RNA was undetectable in 2005 and 2006. There is a notation of "likely a false positive." Post-service diagnostic testing in September 2011 showed a hepatitis panel as within normal limits. The only positive hepatitis testing for the relevant period (the period following the filing of the Veteran's service-connection claim in April 2011) has been identified as a likely false positive. The October 2011 VA examination report's finding of no hepatitis is based upon thorough examination of the Veteran and an analysis of his medical history. It is therefore entitled to significant weight. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (stating that probative value of a physician's statement is depends, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The VA examiner has the training and expertise necessary to diagnosis hepatitis. To the extent that the Veteran asserts that he has hepatitis B, the Board observes that laypersons such as the Veteran are competent to report experienced symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is not competent, however, to diagnose hepatitis, given the nature of the disease, and no Jandreau exception applies in this case. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's assertion of currently having hepatitis relates to an internal, not directly observable disease, unlike an obvious condition such as varicose veins. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The requirement of a current disability is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service connection claim for hepatitis fails for lack of a current disability. See Degmetich v. Brown, 104 F.3d 132 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). Because a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER The appeal as to whether a substantive appeal (VA Form 9) was timely filed with respect to the denial of service connection for posttraumatic stress disorder by a rating decision of January 2008 is denied. Entitlement to service connection for hepatitis is denied. REMAND The Veteran seeks service connection for HIV/AIDS. See Veteran's claim of April 2011. The claim was denied by a rating decision of February 2012, and the Veteran appealed. See NOD of May 2012; VA Form 9 of April 2014. While the appeal was pending, the Veteran filed a fully developed claim seeking service connection for HIV/AIDS in December 2016, which the RO denied by a rating decision of February 2017. The Veteran's appeal of April 2014 remains pending before the Board irrespective of the February 2017 rating decision. The Veteran argues, inter alia, that his HIV/AIDS is secondary to his service connected psychiatric disability. He specifically contends that his service connected psychiatric disability led him to engage in high-risk sexual behavior, which in turn led to his HIV infection. The Veteran is currently service connected for a depressive disorder and a 70 percent rating has been assigned. On remand, an opinion must be obtained to determine the etiology of the Veteran's HIV/AIDS, including its relationship both to service and the Veteran's service connected psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated treatment records relating to HIV/AIDS. 2. Obtain an opinion from a qualified clinician to assess the nature and etiology of the Veteran's HIV/AIDS. The claims file should be made available to and be reviewed by the reviewing clinician. If the reviewing clinician determines that physical examination of the Veteran is required to render the requested opinions, such should be accomplished. After reviewing the claims file, and conducting an examination of the Veteran (if necessary), the reviewing clinician should answer the following questions: a.) Is it at least as likely as not that the Veteran's HIV/AIDS was incurred in service or is otherwise related to service? b.) Is it at least as likely as not that the Veteran's service connected psychiatric disability caused him to engage in high-risk sexual behavior, which in turn led to HIV/AIDS? In rendering his or her opinion, the reviewing clinician should identify the approximate date of onset of the Veteran's HIV/AIDS. A thorough explanation must be provided for all opinions rendered. If the reviewing clinician cannot provide the requested opinion(s) without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, after undertaking all appropriate development, readjudicate the claim of entitlement to service connection for HIV/AIDS, to include as due to service-connected disability. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, and afford the Veteran the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs