Citation Nr: 21067700 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 19-37 249 DATE: November 5, 2021 REMANDED Entitlement to an effective date earlier than November 23, 2016 for the award of service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1973 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2021 virtual hearing. 1. Entitlement to an effective date earlier than November 23, 2016 for the award of service connection for PTSD is remanded. Historically, on November 15, 2013, the Veteran submitted a claim for service connection for PTSD. A December 2014 rating decision denied the claim for entitlement to service connection for PTSD. The Veteran timely appealed the December 2014 rating decision in August 2015, and the RO issued a Statement of the Case in October 2015. The Veteran did not perfect his appeal. On February 28, 2017, the Veteran again filed a claim for service connection for PTSD. See VA Form 21-526EZ. In a May 2017 rating decision, the RO granted service connection for PTSD with other substance abuse disorder, awarding a temporary 100 percent rating effective from November 23, 2016, and a 70 percent rating effective from April 1, 2017. In his December 2019 VA Form 9, the Veteran stated he was incompetent due to his service-connected disabilities, he was in and out of rehabilitation, and not capable of pursuing his earlier appeal during times of relapse due to his PTSD. At the October 2021 hearing, the Veteran testified that he was prevented from perfecting his earlier appeal due to his service-connected PTSD. Specifically, he testified that when he filed his notice of disagreement in August 2015 he was still taking his medications, but did not perfect his appeal because he was no longer on his medications. In essence, the Veteran contends that the time for filing a VA Form 9 to perfect his earlier appeal from the December 2014 rating decision should be tolled. See October 2019 VA Form 27-0820 (Veteran indicating he was seeking an effective date back to 2013 for the award of service connection for PTSD); see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009); Beryle v. Brown, 9 Vet. App. 24 (1996); Rowell v. Principi, 4 Vet. App. 9, 17 (1993). To benefit from equitable tolling, a claimant must demonstrate: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Aldridge v. McDonald, 837 F.3d 1261, 1263 (Fed. Cir. 2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005) (applying equitable tolling with regard to the filing of a Notice of Appeal). One such "extraordinary circumstance" that may prevent a veteran from making a timely submission is illness or incapacity that renders a claimant incapable of rational thought or deliberate decision making, or of handling his or her own affairs or of functioning in society. See Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004); see also Bove v. Shinseki, 25 Vet. App. 136, 144 (2011). This standard requires more than a decrease in mental capacity or functioning, but rather an inability to think rationally or deliberately, handle affairs or function in society. See Barrett, 363 F.3d at 1321; see also Bove, 25 Vet. App. at 144. A medical diagnosis alone or vague assertions of mental problems will not suffice to meet this standard. Barrett, 363 F.3d at 1321; Bove, 25 Vet. App. at 144 (bald assertions that mental illness prevent the claimant from filing his appeal, without any supporting evidence to demonstrate that he was incapable of functioning or making decisions due to mental illness, were insufficient to warrant equitable tolling). In this case, the Board finds a remand is warranted in order to obtain a retrospective VA medical opinion addressing the Veteran's mental state during the relevant time period for the purposes of determining whether the Veteran's PTSD was so disabling that the Veteran could not have perfected the earlier appeal. See Barrett, 363 F.3d at 1321; see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation). "The government's interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them." Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his psychiatric condition between October 2015 and December 2015. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Forward the Veteran's claims file to an appropriate VA clinician to obtain a retrospective opinion as to the nature and severity of his PTSD between October 2015 and December 2015. The claims file should be reviewed by the examiner and all findings reported in detail. The examiner is asked to address the following: (a) Whether the Veteran's PTSD rendered him incapable of rational thought or deliberate decision making between October 2015 and December 2015? (b) If so, when did the Veteran regain the ability to engage in rationale thought or deliberate decision making? (c) Did the Veteran's PTSD render him incapable of handling his own affairs or unable to function in society between October 2015 and December 2015? (d) If so, when did the Veteran regain the ability to handle his own affairs and/or function in society? In answering these questions, the examiner should consider and address the lay statements of the Veteran and any lay statements concerning the Veteran's symptoms between October 2015 and December 2015. All opinions provided should be supported by rationale. If the evaluating clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why that is so and note whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.