Citation Nr: 21002821 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 16-34 942 DATE: January 15, 2021 ORDER Service connection for a low back disability is granted. Service connection for a cervical spine disability, also claimed as neck pain, is granted. The appeal concerning the timeliness of a March 2017 substantive appeal is denied. REMANDED The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The issue of entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The Veteran’s current neck and low back disabilities were incurred in service. 2. The Regional Office (RO) issued a statement of the case (SOC) on January 11, 2017, continuing the denial of the issues of entitlement to service connection for low back, left knee, and right thumb disabilities. The Veteran had 60 days from the date of the notification letter in which to perfect an appeal of these issues. 3. The 60-day period ended on March 12, 2017; as that date was a Sunday, the deadline moved to March 13, 2017. 4. The Veteran’s substantive appeal was not received until March 14, 2017. 5. Neither the Veteran nor his representative requested an extension of time limit for filing the substantive appeal, nor did the Department of Veterans Affairs (VA) explicitly or implicitly waive the timeliness requirement for a substantive appeal, and equitable tolling does not apply. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for the timely filing of a substantive appeal of a September 2015 rating decision are not met. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 3.110, 19.20, 19.22, 19.25, 19.30, 19.52, 19.53. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to July 1981. This matter is before the Board following his appeal of September 2015 and July 2017 rating decisions, and a March 2017 determination regarding the timeliness of a substantive appeal. The Veteran testified before the undersigned Veterans Law Judge in November 2020. 1. Service Connection for Low Back and Neck Disabilities Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. At the outset, the Board notes that current low back and neck disabilities are confirmed by the evidence of record, including by June 2017 and February 2019 VA examinations, documenting degenerative arthritis of the lumbar and cervical spine segments. Additionally, the record establishes in-service incurrence, as the Veteran’s service treatment records (STRs) show that the Veteran fell at least 30 feet from a cliff in service in March 1979. Additionally, STRs show that the Veteran sustained “multiple trauma,” including to the lower back and neck, during a fight in February 1981 (after the Veteran found a person in his car and tried to stop the individual from leaving the scene). Thus, the remaining question is whether the Veteran’s current low back and neck disabilities are related to his service, to include his in-service fall or injuries resulting from a fight. The Board finds that they are. In this regard, there are a number of opinions both in favor of and against the Veteran’s claims. Of note, in favor of the Veteran’s claims, separate private chiropractors, including one who treated the Veteran for 20 years and one who is board-certified in orthopedics, provided statements in May 2019 cumulatively attributing the Veteran’s low back and neck disabilities to his fall in service. In particular, the chiropractor board-certified in orthopedics found the Veteran’s arthritis to be posttraumatic in nature and explained that the mechanism of injury during a significant fall such as the Veteran’s could cause joints to develop degenerative changes at a rate faster than normal “wear and tear” or age-related changes. Additionally, he found probative the Veteran’s report of recurrent back pain as early as June 1983. He also explained that posttraumatic changes can take years to become visible on imaging and require an estimated 30 percent damage to the bone to become visible on imaging, which could explain an absence of evidence of arthritis within a year of separation. Thus, even considering post-service injuries, he concluded that a majority of the Veteran’s low back and neck pain and degenerative changes were the direct result of his fall in 1979. The May 2019 private opinions were cumulatively based on a review of the Veteran’s medical records, including service records, familiarity of the Veteran’s medical history, and were supported by detailed rationale. Notably, the Veteran’s history of intercurrent post-service spine injuries was expressly considered. Thus, they are deemed probative. They are also consistent with VA clinical records that show the Veteran’s initial report in December 2012 in furtherance of treatment that his low back pain began with a fall down a cliff in service in 1979. The Veteran has also provided competent and credible lay testimony of an onset of low back symptoms in service coincident with his fall and a continuity of those symptoms since, as well as the existence of neck and low back symptoms prior to post-service injuries. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Falzone v. Brown, 8 Vet. App. 398 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board recognizes that there is also evidence that weighs against the Veteran’s claims, including VA opinions dated in September 2015, June 2017, and February 2019 indicating that the Veteran’s low back and/or neck disability was less likely than not incurred in service. However, the Board finds those opinions to lack probative value because they failed to adequately consider the competent and credible lay statements of the Veteran regarding the onset and continuity of symptoms post service, or improperly relied on an absence of treatment records to discount the lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case). In sum, the Board finds that the evidence is at least in relative equipoise regarding the question of whether the Veteran’s current low back and neck disabilities are related to his military service. Therefore, resolving doubt in favor of the Veteran, his claims for service connection for low back and neck disabilities are granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Timeliness of appeal The Veteran argues that the submission of a substantive appeal on March 14, 2017 should be found timely because it was received only two days past the deadline for submission, and that the delay in submission was not due to any fault on his part because he relied on his service representative to submit the form in a timely manner, and the service representative failed to do so. A substantive appeal must be filed within 60 days from the date that the RO mails the SOC to the claimant, 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, and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 19.52(b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause shown. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 19.53. When the rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. § 20.305(a). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 3.110. The notification letter attached to the relevant January 11, 2017 SOC included notice that the substantive appeal must be filed within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying the Veteran of the rating decision. The letter also stated that, if the substantive appeal was not filed within the specified period, the case would be closed. It was further explained that any request for an extension of time to file should be made prior to the expiration of the time limit for filing the appeal. There is no allegation or indication that the Veteran did not receive the January 2017 SOC and notification letter. Here, the January 2017 SOC was issued after the one-year appeal period following the date of notification of the September 2015 rating decision. As such, the Veteran was required to file his substantive appeal within 60 days from the date the AOJ mailed the SOC. Therefore, the date for timely filing of the Veteran’s substantive appeal was March 12, 2017. However, as that date was a Sunday, the due date rolled forward to March 13, 2017. 38 C.F.R. § 3.110. The Veteran, through his service representative, submitted a substantive appeal that was electronically transmitted and received on March 14, 2017. The document is marked with the date of electronic transmission, and thus the postmark rule does not here apply. The Veteran’s substantive appeal was therefore not received, postmarked, or presumptively postmarked within 60 days from the date that the RO mailed the SOC. In addition, there is no document filed by either the Veteran or his service representative that can be construed as a timely request for an extension. It is noted that the AOJ and Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). However, there is no evidence in this case that the RO continued to treat the Veteran’s claim as an active appeal. Rather, the AOJ notified the Veteran by letter dated April 3, 2017 that the substantive appeal received on March 14, 2017 was not timely. There is no allegation or indication that an extension was requested or provided, or of electronic difficulty in attempting to submit the substantive appeal during the time between March 8, 2017, which was the Wednesday on when the Veteran testified he met with his service representative to complete the form, and March 13, 2017, when the form was due to be considered timely. There is no other action shown by the record to establish that the AOJ suggested that the substantive appeal received on March 14, 2017 had been accepted as timely. Rather, as noted above, the AOJ notified the Veteran on April 3, 2017 that the substantive appeal was untimely. The case was never transferred to the Board. In addition, the Veteran was represented by a service representative who was presumably aware of the filing requirements for an appeal before the Board, the elements needed to perfect an appeal, and the need and process for obtaining an extension where necessary. See Overton V. Nicholson, 20 Vet. App. 427 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced). Given the foregoing, the Board finds the RO did not waive the requirement of a timely filed substantive appeal. See Percy, supra; see also Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board has also considered the doctrine of equitable tolling. The U.S. Court of Appeals for Veterans Claims (Court) has held that the deadline for filing the substantive appeal is subject to equitable tolling. Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Generally, equitable tolling applies only where circumstances preclude a timely filing, despite the exercise of due diligence, such as: (1) a mental illness rendering one incapable of handling one’s own affairs or other extraordinary circumstances beyond one’s control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the RO or the Board. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curium order). There is a three-part test to determine whether “extraordinary circumstances” justify equitable tolling: (1) the extraordinary circumstance must be beyond the Veteran’s control, (2) the Veteran must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the Veteran must exercise due diligence in preserving his or her appellate rights, meaning that a reasonably diligent person, under the same circumstances, would not have filed his or her appeal within the appeal period. See McCreary v. Nicholson, 19 Vet. App. 324 (2005). The relevant period for the equitable tolling analysis is the time during which the obstacle to timely filing exists. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). However, neither the Veteran nor his service representative has argued, and the record does not document, any delay caused by an event or events rising to the level of an extraordinary circumstance to justify equitable tolling. As discussed above, the Veteran and his representative were advised of the requirements for filing a timely substantive appeal or requesting an extension, and there is no indication that they were prevented from doing so. Unfortunately, for these reasons, the Board finds the substantive appeal filed on March 14, 2017, with respect to the September 2015 rating decision that denied service connection for low back, left knee, and right thumb disabilities is not timely. The Board sympathizes with the Veteran regarding his reliance upon his representative to file the appeal in a timely manner. However, such did not occur, and the appeal accordingly must be denied. REASONS FOR REMAND 1. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran contends that he has PTSD as a result of in-service stressors, to include his fall from a cliff and finding a woman who had been struck by lightning and died. A May 2015 VA examiner previously found that the Veteran did not meet the criteria for a diagnosis of PTSD, but that he did meet the criteria for Major Depressive Disorder (MDD), which was not related to service. Of note, regarding the diagnosis of MDD, the examiner noted various recent stressors, including the deaths of the Veteran’s mother, brother, and several friends, an inability to work following a 2012 injury, and the loss of his home. In a January 2019 addendum, the examiner affirmed the earlier May 2015 opinion. However, in doing so, the examiner stated that MDD “is not caused by stressors, military or otherwise.” Such a statement is seemingly contradictory to the examiner’s May 2015 notation that the Veteran’s depressive symptoms “correlated with…the personal losses and setbacks mentioned above.” Given the conflicting evidence, a new opinion is needed. Additionally, the Veteran’s November 2020 testimony raises the theory that he has a psychiatric disorder secondary to his service-connected physical disabilities, including his reports that he would drink as a way to self-medicate his back and neck pain. As such, an opinion is necessary that addresses secondary service connection. Finally, in support of his psychiatric claim, the Veteran testified that SSA disability records are relevant and should be obtained, as they would support an erratic work history post service that was related to an ongoing psychiatric disorder. Thus, remand is necessary to obtain SSA disability records. 2. The issue of entitlement to service connection for a left knee condition is remanded. As the SSA disability records obtained on remand may contain evidence relevant to the Veteran’s left knee service connection claim, the Board finds that it would be premature to adjudicate the left knee claim at this time. Thus, that claim is remanded. The matters are REMANDED for the following action: 1. Obtain the federal records from the Social Security Administration associated with any claim for disability benefits filed by the Veteran including copies of any decisions and copies of the medical records relied upon concerning that claim. Document all requests for information as well as all responses in the claims file. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified as such. 2. Then, schedule the Veteran for a VA psychiatric examination to determine the nature, etiology, and date of onset of any diagnosed acquired psychiatric disorder. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner is to respond to the following questions: (a.) Please identify all current psychiatric disorders. (b.) In formulating the requested opinions, please specifically acknowledge and discuss the psychiatric diagnoses of record, including the PTSD and bipolar disorder type II diagnoses made by treating VA providers, and the Major Depressive Disorder diagnosis made by the May 2015 VA examiner. (c.) If the criteria for a diagnosis of PTSD are met, please specify the stressors supporting the diagnosis. In determining whether the Veteran meets the criteria for a current psychiatric diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the March 2015 claim for service connection. Please also note that although the Veteran may not meet the criteria for a psychiatric diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a “current” diagnosis. (d.) For each current psychiatric disorder, state whether it is at least as likely as not (50 percent probability or greater) that the disorder was incurred in or otherwise related to service, to include the Veteran’s claimed stressors therein. (e.) If not directly related to service, is it at least as likely as not (50 percent probability or greater) that the diagnosed acquired psychiatric disorder was caused or aggravated by the Veteran’s service-connected low back and/or neck disability? Please specifically discuss the Veteran’s testimony that he self-medicated with alcohol due to his pain. (f.) If the examiner finds that the acquired psychiatric disorder has been aggravated by the Veteran’s service-connected disability, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the service-connected disability. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner’s consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fagan, Aileen The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.