Citation Nr: 21064998 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 20-00 313 DATE: October 22, 2021 ORDER The appeal as to the timeliness of an appeal of a July 2015 rating decision is denied. REMANDED Entitlement to a disability rating greater than 50 percent prior to December 30, 2019, and greater than 70 percent from that date, for service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a July 2015 rating decision, the AOJ granted service connection and a 30 percent rating for PTSD, effective December 23, 2014, and denied service connection for melanoma. The Veteran was notified of this decision by a letter dated on July 21, 2015. 2. A timely notice of disagreement was received from the Veteran in April 2016 as to the issues of entitlement to service connection for melanoma and entitlement to a higher initial rating for PTSD. 3. In a January 2018 rating decision, the AOJ granted an earlier effective date of December 23, 2013 for the award of service connection for PTSD, and granted a 50 percent rating for PTSD from that date. The Veteran was notified of this decision by a letter dated February 21, 2018. 4. A statement of the case was mailed to the Veteran on January 18, 2018 as to the issues of entitlement to service connection for melanoma and entitlement to an increased rating greater than 50 percent for PTSD from December 23, 2013. 5. A timely substantive appeal was not received from the Veteran in response to the January 2018 statement of the case. CONCLUSION OF LAW The Veteran did not perfect a timely appeal of a July 2015 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1967 to December 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ). As discussed in the remand portion of this decision, the Board finds that the Veteran submitted a timely notice of disagreement in April 2018 with a January 2018 rating decision as to the issue of entitlement to an increased rating for PTSD, but a statement of the case has not yet been issued. 1. Timeliness of the appeal of the July 18, 2015 rating decision The Veteran contends that he timely appealed a July 2015 rating decision that granted service connection and a 30 percent rating for PTSD, and denied service connection for melanoma. He contends that his April 2018 notice of disagreement (VA Form 21-0958) should be accepted as a substantive appeal, and that the AOJ incorrectly advised him of his appellate rights in its February 21, 2018 notice letter. See his December 2019 substantive appeal. Alternatively, the Veteran's representative contends that the April 2018 notice of disagreement was a timely notice of disagreement with a January 2018 rating decision regarding an increased rating for PTSD. At the time of the July 2015 rating decision at issue, an appeal consisted of a timely filed notice of disagreement on the form prescribed by the Secretary, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200 (2018). To be considered timely, a notice of disagreement must be received within one year of the date the AOJ mailed notice of the determination, and a substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of notification of the determination being appealed, whichever is later. 38 U.S.C. § 7105 (b), (d); 38 C.F.R. § 20.302 (2018). In this case, in a July 2015 rating decision, the AOJ granted service connection and a 30 percent rating for PTSD, effective December 23, 2014, and denied service connection for melanoma. The Veteran was notified of this decision by a letter dated on July 21, 2015. A timely notice of disagreement was received from the Veteran in April 2016, as to the issues of entitlement to service connection for melanoma and entitlement to a higher initial rating for PTSD. A statement of the case was promulgated in January 2018 as to the issues of entitlement to service connection for melanoma and entitlement to an increased rating greater than 50 percent for PTSD from December 23, 2013. The Veteran was notified of the statement of the case by a letter dated on January 18, 2018. In a January 2018 rating decision, the AOJ granted an earlier effective date of December 23, 2013 for the award of service connection for PTSD, and granted a 50 percent rating for PTSD from that date. The Veteran was notified of this decision by a letter dated February 21, 2018. A legacy notice of disagreement (VA Form 21-0958) was received from the Veteran on April 19, 2018 with regard to the February 21, 2018 notice of the January 2018 rating decision, as to the issue of entitlement to an increased rating for PTSD. In the cover letter submitted with this VA Form 21-0958, the representative explicitly stated that it was a notice of disagreement with the February 21, 2018 rating decision as to the issue of the evaluation of the Veteran's PTSD. In briefs submitted in May and August 2020, the Veteran's representative contends that the April 2018 notice of disagreement was a timely notice of disagreement with the January 2018 rating decision regarding an increased rating for PTSD. The Board agrees, and that issue is addressed in the remand portion of this decision. However, the Board finds that the April 19, 2018 VA Form 21-0958 and cover letter may not also be considered to be a substantive appeal with regard to the July 2015 rating decision, because these documents did not list the issue of service connection for melanoma, or indicate that the Veteran wanted to perfect his appeal of the July 2015 rating decision. 38 C.F.R. § 20.202 (2018). Additionally, they were untimely, as they were received more than one year after notice of the July 2015 rating decision, and more than 60 days after notice of the January 2018 statement of the case. The Board finds that the Veteran did not file a substantive appeal with regard to the claims adjudicated in the July 2015 rating decision. The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the timeliness provision regarding substantive appeals found in § 7105(d)(3) is not jurisdictional in nature and serves as a claims-processing mechanism. Hall v. McDonough, No. 19-8717 (Vet. App. October 18, 2021); Percy v. Shinseki, 23 Vet. App. 37, 43 (2009). As the issue of entitlement to an increased rating for PTSD throughout the rating period on appeal is being remanded, there is no prejudice to the Veteran in declining jurisdiction of the prior claim. Regarding his melanoma claim, in this case, the Veteran has not been led to believe that the issue was on appeal to the Board, either explicitly or implicitly. On this record, the Board declines to exercise its discretion to accept jurisdiction of the claims. Percy, 23 Vet. App. at 46 ("the Board may decline to exercise jurisdiction over the appeal as a prudential matter"). REASONS FOR REMAND 1. Entitlement to an increased rating greater than 50 percent prior to December 30, 2019, and greater than 70 percent from that date, for service-connected PTSD is remanded. Regarding the claim of entitlement to an increased rating for service-connected PTSD, the Veteran submitted a timely notice of disagreement (VA Form 21-0958) in April 2018 with a January 2018 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. §§ 19.20, 19.29, 19.30 (2021); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 2. Entitlement to a TDIU is remanded. The Board finds that the evidence of record, including the Veteran's April 2016 statement and private medical opinions dated in March 2017, reasonably raises a claim for TDIU, and the issue is in appellate status. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of the Veteran's claim for an increased rating for service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Because a decision on the remanded issue of entitlement to an increased rating for service-connected PTSD could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The Veteran should be given an opportunity to complete a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, and ask him to fill the form out completely. 2. Then, after any additional development deemed necessary as a result of the Veteran's response, adjudicate the claim for a TDIU. (Continued on the next page) 3. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an increased rating greater than 50 percent prior to December 30, 2019, and greater than 70 percent from that date, for service-connected PTSD (after ensuring that all indicated development is conducted to include obtaining all VA and Vet Center records from 2018 to present). If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.