Citation Nr: 18106945 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 16-03 566 DATE: June 1, 2018 ORDER The appeal seeking to establish that the Veteran filed a timely notice of disagreement (NOD) with the November 2007 rating decision that granted service connection for tinnitus and assigned a 10-percent rating effective November 29, 2006, is denied. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to a rating higher than 10 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT On November 29, 2007, the RO mailed notification to the Veteran of its November 2007 decision that granted service connection for tinnitus and assigned a 10-percent rating effective November 29, 2006. The Veteran did not file an NOD within one year of being notified of the November 2007 rating decision. A statement received on September 17, 2011, is not a timely NOD with the November 29, 2007, rating decision. CONCLUSION OF LAW The Veteran’s September 2011 NOD with the November 2006 rating decision which established service connection for tinnitus and assigned a 10 percent rating effective November 29, 2006, was not timely. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 2003 to October 2005. Whether the Veteran filed a timely NOD with the November 2007 rating decision that granted service connection for tinnitus and assigned a 10-percent rating effective November 29, 2006. Under 38 U.S.C. § 7105 (a), an appeal to the Board must be initiated by an NOD and completed by a substantive appeal (VA Form 9 or equivalent) after a Statement of the Case is furnished to the claimant. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. A written communication from a claimant (or his representative) expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute an NOD. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. A claimant (or his representative) must file an NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302 (a). If an NOD is not filed within the one-year time period, the RO decision becomes final. Id. In this case, a November 29, 2007, rating decision granted service connection for tinnitus and assigned a 10-percent rating effective November 29, 2006. On November 29, 2007, the RO mailed notice of the November 2007 rating decision to the Veteran’s address of record. Under the heading entitled “What You Should Do If You Disagree With Our Decision,” the letter advised the Veteran that he had “one year from the date of this letter to appeal the decision.” An attached VA Form 4107 advised the Veteran that to appeal the decision, he had to file a NOD within one year of the date of the letter of notification. Therefore, the Veteran had until November 29, 2008, to file a NOD. See 38 C.F.R. § 20.302 (a). In July 2010, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, requesting increased ratings for his PTSD and DDD of the lumbar spine. In October 2010, the Veteran filed two separate statements regarding the severity of his PTSD and lumbar spine disabilities. In November 2010, the Veteran submitted three statements – one authored by his mother, one authored by D.G., and one authored by him regarding his psychiatric and back conditions. The Veteran also submitted at that time an application for a TDIU. A September 2011 rating decision addressed the increased rating issues, PTSD, DDD, and TDIU. It was not until a document titled “Notice of Disagreement ” dated September 17, 2011, that tinnitus was mentioned again by the Veteran. He specifically stated: I disagree with your decision because in my opinion you overlooked the 10% I was granted for tinnitus in November of 2007. I have had no decrease in symptoms and continue to be plagued with the frustration and irritation of the continuous ringing in my ears. … I did not mention this 10% in my July of 2011 application because it was stated in my Nov 2007 determination that 10% is the highest granted for tinnitus so even though[] it has increased in severity I know that no additional compensation can be given for it. …. Correspondence titled “Notice of Disagreement,” received October 11, 2011. This document is the earliest correspondence indicating disagreement with the 10-percent rating assigned for tinnitus in the November 2007 rating decision. It was received by the RO on October 11, 2011, beyond the one-year period provided by law for filing a NOD with the November 2007 rating decision. The Veteran was informed that his NOD must be submitted within one year of the date of the letter. The pertinent legal authority is clear and specific, and the Board is bound by such authority. The record clearly shows that the Veteran did not file a NOD with the November 2007 rating decision within one year of the letter notifying him of such, and the Veteran does not contend otherwise. The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Considering the foregoing, the Board finds that the preponderance of the evidence indicates that the Veteran did not file a timely NOD with the November 2007 rating decision that granted service connection for tinnitus and assigned a 10-percent rating effective November 29, 2006. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not applicable, and the appeal as to the timeliness of the NOD is denied. See 38 U.S.C. §§ 5107(b), 7105; 38 C.F.R. §§ 20.200, 20.302. REASONS FOR REMAND With respect to all remaining issues on appeal, the evidence indicates that there may be outstanding relevant VA treatment records. It appears that the Veteran receives routine treatment at the VA Medical Center in Columbus. The most recent VA treatment records in the file are dated in December 2015. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 1. Entitlement to service connection for traumatic brain injury (TBI) In support of his claim, the Veteran submitted records from the Henry M. Jackson Foundation, Defense & Veterans Brain Injury Center (DVBIC) indicating that during service, specifically in September, October, and December 2004, the Veteran participated in a clinical study relating to brain injury and its consequences, treatment, and prevention. Although it appears that the personal identifying information for the study was only being kept for 10 years after which time it was being destroyed, the Board finds that an attempt should be made to obtain such records. Nevertheless, even if the Veteran’s personal information has been destroyed, in the description of the study, it was noted that the Veteran was asked to participate in a research study designed for paratroopers at Fort Bragg, North Carolina. To participate in the study, the Veteran must have been a soldier stationed at Fort Bragg. The description notes that the study includes basic testing on a large number of uninjured soldiers and more extensive testing on injured soldiers. The description indicates that if the Veteran agreed to participate in the study, he would be asked to take short specialized tests, including neurologic and computerized neuropsychologic and behavioral examinations and a symptoms checklist; he could be asked to complete a similar set of follow-up tests two years after he initially enrolled or before the ETS, PTS, or otherwise left service; he could also be matched to an injured subject in terms of age, education, and head injury history and asked to complete the computerized test battery up to four more times according to the injury test schedule described below; and for those soldiers who need to be re-evaluated (only those with a recent head injury) the tests could be repeated as close to Days 0 (initial visit), Day 7, Day 30, and Week 12 after your injury; and routine blood work would also be requested. Thus, based on the number of times the Veteran was seen (four times – September 22, 2004, September 29, 2004, October 20, 2004, and December 13, 2004), perhaps the DVBIC can determine whether the Veteran was an “injured” or “uninjured” subject. 2. Entitlement to a rating higher than 10 percent for degenerative disc disease (DDD) of the lumbar spine The Veteran last underwent VA examination in October 2015. As it has been a number of years since the last VA examination, the evidence of record is clearly stale. In addition, the October 2015 examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Thus, the Veteran should be provided an opportunity to undergo a VA examination by an appropriate clinician to determine the current severity of his lumbar spine disability. 3. Entitlement to a rating higher than 30 percent for PTSD The Veteran identified potentially relevant outstanding private treatment records. The record indicates that the Veteran spent six months in a private treatment program for his opioid dependence. A remand is required to allow VA to obtain authorization and request these records. The Veteran last underwent VA examination in October 2015. The examiner determined that the Veteran’s level of occupational and social impairment with regard to all mental diagnoses was occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood with symptoms of anxiety, chronic sleep impairment, mild memory loss, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The Board finds that the symptoms described in the October 2015 examination report are inconsistent with the symptoms described by the Veteran during VA treatment around the same timeframe. For example, in June 2015, four months prior to the VA examination, the Veteran reported that he continued to do well with his symptoms and had been sober for three years. School work was going well, and he was leading a support group through his church for men with addiction. He was taking Prazosin and Trazodone on a regular basis and had adequate response. He was only having nightmares once or twice a month and would have sleep difficulties at the same frequency. In September 2015, just one month prior to the examination, the Veteran reported, “I do things w/my family. I still know a lot of people in [] but don’t associate with them much. I live in [], and have friends there. He reported that he attended church twice a week. “I am not working right now but volunteer for a non-profit organization... I plan on working for them once they get the funds to pay me. I’m also going to school.” He stated that he had struggled in the past w/PTSD “but I’ve worked on and its gott[e]n better.” In November 2015, less than a month after the examination, the Veteran reported that he had continued to do well and remained free of any significant mood or anxiety symptoms. He reported that he had been taking prazosin and trazodone on a regular basis without any significant side effects; that he had maintained abstinence from drug and alcohol use, that he remained active in ADD; and that he remained active in his church, his community volunteer work, and his education. He reported that he had 6 more months to finish his current associate degree in addiction counseling and plans to continue to complete an undergraduate degree. The Veteran noted that he was still running support groups for substance use for his church. He also reported that he was dating a woman for 4 months, that they got along well, and that he believed he would get married to her. As the October 2015 VA examination is inconsistent with the evidence of record during the same time period, and as it has been a number of years since the last VA examination, the evidence of record is clearly stale. Thus, the Veteran should be provided an opportunity to undergo a VA examination by an appropriate clinician to determine the current severity of his PTSD. 4. Entitlement to TDIU A decision on the issues being appealed herein may impact the Veteran’s claim for a TDIU. Therefore, the Board finds these issues to be inextricably intertwined and the Board must defer the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2016 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for (1) the private facility where he spent six months for treatment of his opioid dependence; (2) Henry M. Jackson Foundation, Defense & Veterans Brain Injury Center (DVBIC) for clinical records specific to the Veteran in September, October, and December 2004. On the request to DVBIC, ask if based on the number of times the Veteran was seen (four times – September 22, 2004, September 29, 2004, October 20, 2004, and December 13, 2004), whether it can be determined if the Veteran was an “injured” or “uninjured” subject. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination of the current severity of his service-connected lumbar spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine alone and discuss the effect of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. 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. To the extent possible, the examiner should distinguish symptoms and functional impairment attributable to the Veteran’s service-connected PTSD from those attributable to any other diagnosed disorders (i.e., polysubstance addiction) and discuss the effect of the Veteran’s PTSD on any occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner should consider VA treatment records, to include June 2015, September 2015, and November 2015, as noted above in the explanation, and reconcile with the October 2015 VA medical examination. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson, Counsel