Citation Nr: 21061816 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-13 354 DATE: October 5, 2021 ORDER Entitlement to an effective date earlier than April 19, 2016 for the grant of service connection for posttraumatic stress disorder (PTSD) with stimulant use disorder in sustained remission is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran filed his claim for service connection for PTSD on March 17, 1997. The claim was denied in a November 17, 1997 rating decision. 2. The Veteran was not properly notified of the November 1997 rating decision and of his appellate rights with respect thereto, and the presumption that VA officials properly discharged their official duties by sending proper notification to the Veteran of the November 1997 rating decision has been rebutted. 3. The November 1997 rating decision was never final. 4. The application to reopen the claim for service connection for PTSD was received on April 19, 2016. 5. The evidence reasonably shows that the Veteran's service-connected PTSD renders him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 19, 2016 for the grant of service connection for PTSD with stimulant use disorder in sustained remission have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to July 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2020 decision, the Board denied the Veteran's claims for, among others, an earlier effective date for the grant of service connection for PTSD and TDIU. Thereafter, the Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the parties entered into a Joint Motion for Partial Remand (JMPR). In the June 2021 JMPR, the parties limited their appeal to the denial of the aforementioned issues. Indeed, as the Veteran made no argument about the Board's denial of service connection for diabetes mellitus, type II, or its denial of a rating higher than 70 percent for PTSD, the parties noted the Court should dismiss the appeal regarding those claims. See June 2021 JMPR. 1. Entitlement to an effective date earlier than April 19, 2016 for the grant of service connection for PTSD with stimulant use disorder in sustained remission The Veteran seeks an effective date earlier than April 19, 2016 for the grant of service connection for PTSD. The RO has indicated that an earlier effective date is not warranted as the Veteran did not appeal the decision within the proscribed time frame. In this regard, the Veteran asserts that he did not receive notification of the denial of service connection in 1997. A claimant may initiate appellate review by the Board of Veterans' Appeals of an adverse regional office decision by filing a Notice of Disagreement (NOD) within one year after the date of the mailing of that decision. 38 U.S.C. §§ 7105(a), (b)(1). If the claimant fails to file an NOD within that time period, the regional office decision becomes final and will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with title 38 of the U.S. Code. 38 U.S.C. § 7105(c). Here, the RO sent out its decision denying the Veteran the claimed benefits in November 1997. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Where a prior unappealed decision becomes final, the effective date of a subsequent award of service connection is the date of receipt of the subsequently filed application to reopen, and not the date of receipt of the original claim. Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). On March 17, 1997, the Veteran filed a formal claim seeking, inter alia, service connection for PTSD. As noted, the claim was denied in a November 1997 rating decision specifically because the Veteran's stressors could not be corroborated. In a letter dated November 19, 1997, the VA sent the Veteran a copy of the November 17, 1997 rating decision to his Pompano Beach, FL address. The letter was not delivered to the Veteran; it was returned to the VA on November 28, 1997, marked "attempted - not known". Furthermore, the Veteran did not receive a copy of the rating decision with a February 3, 1998 letter. Indeed, the February 3, 1998 letter sent to his updated Fort Lauderdale address included an appeal sheet but no indication that the rating decision was attached. This correspondence was returned to the VA on February 17, 1998. Finally, the Veteran himself indicated that he never received the rating decision. Indeed, in a June 9, 1998 telephone call he indicated that he still has a claim pending for his service-connected PTSD; and in a September 2, 1998 statement in support of his claim, he stated that as "of today, I do not know the status of this service connected claim for PTSD. I am asking the RO in Montgomery, AL to please advise me of the status of this claim". It does not appear that VA responded to the Veteran's requests. The Veteran filed the application to reopen the claim for service connection for PTSD on April 19, 2016. In a March 2017 rating decision, the RO granted the Veteran service connection for PTSD with a 70 percent evaluation, effective April 19, 2016. The grant was based on the March 2017 VA examination and opinion that the Veteran's claimed stressor was related to his PTSD. As noted above, the Veteran has sought for service connection for PTSD since March 17, 1997. Where a prior unappealed decision becomes final, the effective date of a subsequent award of service connection is the date of receipt of the subsequently filed application to reopen, and not the date of receipt of the original claim. Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). The Veteran and his attorney, in essence, argues that the November 1997 decision never became final because he never received notice of the rating decision and, therefore, could never disagree with the decision within the proscribed time frame to file a notice of disagreement. The Court has ruled that there is a rebuttable "presumption of administrative regularity" under which it is presumed that government officials have properly discharged their official duties, including mailing notices. See Clark v. Principi, 15 Vet. App. 61, 63 (2001). The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Even in cases where the presumption of administrative regularity were to attach (where the written notice was mailed to the last address of record), the presumption will be rebutted by "clear evidence" that both (1) the mailing was returned as undeliverable, and (2) there were other possible and plausible addresses that could have been used to contact him. See Davis v. Principi, 17 Vet. App. 29 (2003). Additionally, the Court has specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See YT v. Brown, 9 Vet. App. 195 (1996). VA's use of an incorrect address for a claimant constitutes the "clear evidence" needed to rebut the presumption of regularity that the Board properly mailed notice of its decision to the claimant under section 7104(e), which requires the notice of a Board decision to be sent to the claimant at the claimant's "last known address" of record. Crain v. Principi, 17 Vet. App. 182, 187 (2003); see 38 U.S.C. § 5104(a) (provision as to notice of RO decisions); Woods v. Gober, 14 Vet. App. 214, 220 (2000) (applying the presumption of regularity and its rebuttal in the context of an RO mailing). In Woods v. Gober, 14 Vet. App. 214, 220-21 (2000), the Court held that where the RO sends a Veteran notice of a decision, and such notice is returned as undeliverable, the presumption of regularity is rebutted, and the burden is shifted to the RO to establish that it reviewed the claims file to ascertain whether there are other possible and plausible addresses for the Veteran. The Court has also found that "the returned notice should have triggered reexamination of the file to determine whether another address was available." Hyson v. Brown, 5 Vet. App. 262, 264 (1993). Applying the presumption of regularity to VA, there is clear evidence indicating that the notice letter of the November 1997 rating decision was returned as undeliverable. As such, the presumption of regularity is rebutted. It was up to the RO to establish that it reviewed the claims file to ascertain if there were other addresses at which the Veteran could be reached. RO has not shown that and has not met the burden. Further, when the RO sent another letter to a different address, that letter; however, that was also returned to the RO, did not appear to have the rating decision attached. And, finally, the Veteran requested in September 1998 correspondence for an update on his PTSD service connection claim. The RO did not respond to his requests. The Board finds collectively the evidence shows the presumption of regularity is rebutted and the Board concludes that the Veteran was not notified of the November 1997 rating decision. As such, the November 1997 rating decision is not considered to be a final decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As such, the Board finds that the November 1997 rating decision denying the Veteran service connection for PTSD never became final. Thus, the earlier claim of March 17, 1997 for PTSD is considered as part of the same claim stream that is currently pending on appeal. The Board will not discuss any other theory of entitlement, as it is unnecessary to do so since his claim has been adjudicated favorably. The Board is cognizant that the Veteran currently receives a 70 percent disability rating for his psychiatric disability. The issue, however, of assigning a specific disability rating from the time of the November 1997 rating decision is not currently before the Board, only the issue of service connection. The Board will defer to the RO to assign the appropriate effective date prior to the April 19, 2016 date. 2. Entitlement to a TDIU Giving the Veteran the benefit of the doubt, the Board finds his service-connected PTSD has rendered him unable to secure and follow a substantially gainful occupation. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Veteran is currently service connected for a psychiatric disability rated at 70 percent and a skin disability rated at 10 percent. His combined rating is now 70 percent. He meets the schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). A June 1997 VA examiner noted that the Veteran has been unable to maintain continuous employment except for a few years since being discharged in 1973 due in part to PTSD. Most recent VA treatment records document the Veteran engages in volunteer positions. On the September 2021 VA 21-8920, the Veteran reports that he performs 10 hours a week of volunteering. He reports one year of college and no other education or training before or since he was too disabled to work. Given the Veteran's limitations, and his background, including educational history and past employment, and giving him the benefit of the doubt, the Board finds that his service-connected PTSD precludes most employment. A TDIU is granted. The Board will allow the agency of original jurisdiction to assign the appropriate effective date when it implements the Board's decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, Counsel 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.