Citation Nr: 21069081 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-30 165 DATE: November 17, 2021 ORDER 1. The notice of disagreement (NOD) received on May 30, 2014 in response to the May 20, 2013 rating decision that denied service connection for posttraumatic stress disorder (PTSD) and denied reopening claims for service connection for cervical spine and lumbar spine disabilities was not timely filed, and the May 2013 rating decision is final. 2. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. Notification of the May 2013 rating decision was mailed to the Veteran by a letter dated May 20, 2013, in which he was informed of his appellate and procedural rights; a copy of the notice was also sent to the Veteran's attorney at the time. 2. No response was received from the Veteran or his attorney indicating disagreement with the May 2013 rating decision prior to May 30, 2014. 3. On May 30, 2014, the Veteran, through his then attorney, submitted a VA For 21-0958, Notice of Disagreement, wherein he disagreed with the denials of service connection for PTSD, cervical spine disability, and lumbar spine disability. 4. Headaches did not have their onset during active service or within one year of service discharge and are not otherwise related to active service. CONCLUSIONS OF LAW 1. A timely NOD was not submitted in response to the May 2013 rating decision that denied service connection for posttraumatic stress disorder (PTSD) and denied reopening claims for service connection for a cervical spine disability and a lumbar spine disability. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.3(a), 20.200, 20.201, 20.300, 20.301(a), 20.302(a), 20.305, 20.306. 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1977 to January 1980. These matters come to the Board of Veterans' Appeals (Board) from a September 2014 determination that the Department of Veterans Affairs (VA) could not accept the May 2014 NOD as timely and a January 2016 rating decision which denied service connection for headaches. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2021 virtual hearing and a transcript of the hearing has been associated with the claims file. 1. Whether the NOD received on May 30, 2014 was timely. The Veteran has asserted, including at the June 2021 Board hearing, that his May 2014 NOD should be found to be timely, because his attorney at the time was "incompetent." Following a review of the record, the Board finds that a timely NOD to the May 2013 rating decision has not been filed. The reasons for this decision follow. Under VA's legacy appeal system, which is applicable here, appellate review of a rating decision is initiated by an NOD and completed by a substantive appeal (VA Form 9, Appeal to the Board, or its equivalent) following the issuance of a statement of the case (SOC). 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. If the claimant is properly notified of a determination by the agency of original jurisdiction and does not file an NOD within the prescribed time period, the decision becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Regarding the time limit for filing an NOD, VA law provide that a claimant, or his or her representative, shall file an NOD with a determination by the agency of original jurisdiction within one year from the date that the agency mails notice of the determination to him or her. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(a). 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. Id. The United States Court of Appeals for Veterans Claims (Court) has held that unlike with a substantive appeal, the Board does not have discretion to waive the timeliness of an NOD. Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) ("The permissive language of section 7105(d)(3) [of the statute regarding the time limit for filing a substantive appeal] stands in stark contrast to the statutory language mandating that claimants file a timely NOD") (citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) ("[T]he mandatory 'shall'... normally creates an obligation impervious to... discretion"). Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. 38 C.F.R. § 3.109(b). Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Id. Extensions of time limits for good cause shown under 38 C.F.R. § 3.109(b) are applicable to NODs. Mason v. Brown, 8 Vet. App. 44, 54 (1995) ("[T]he time for filing an NOD may be extended, or an NOD may be filed out of time, only when, as required by 38 C.F.R. § 3.109(b), such an extension, or acceptance of an untimely NOD, has been requested and good cause for it has been shown"). By way of history, a May 2013 rating decision denied service connection for PTSD and denied reopening claims for service connection for a cervical spine disability and a lumbar spine disability. Notification of the denial was sent to the Veteran at his address of record on May 20, 2013, notifying him of his procedural and appellate rights. The correspondence also indicated that a copy of the letter was sent to his attorney of record at that time as well. On May 30, 2014, VA received an NOD to the May 2013 rating decision. The NOD was sent by facsimile, as documented at the top of the submission. The attorney had also dated the document as May 30, 2014. Therein, the Veteran's attorney asserted that she had been waiting to review the Veteran's claims file for over two years and that the contents of the claims file were necessary to make an argument regarding the Veteran's service connection claims. In September 2014, VA notified the Veteran and his attorney that the May 2014 NOD could not be accepted as timely. In response, the Veteran's attorney submitted an NOD concerning the timeliness issue, and asserted that good cause had been shown as she had still not received a copy of the Veteran's claims file. As noted above, the Board does not have discretion to waive the time limit for filing an NOD. See Percy, 23 Vet. App. at 44. Additionally, the Board finds that good cause has not been shown to extend the time limit for filing. See 38 C.F.R. § 3.109(b). The Veteran's previous attorney's allegation that the inability to obtain a copy of the claims file prior to September 2014 does not demonstrate good cause for the untimely filing of the NOD. Significantly, the Veteran and his previous attorney had already received a copy of the May 2013 rating decision with notice of that decision, including a discussion of the claims decided at that time, and his appellate rights. The lack of access to the claims file did not prohibit the submission of the eventual untimely May 2014 NOD, and the Board is unpersuaded as to why a lack of access to the claims file prevented the attorney from submitting a timely NOD at any time during the one-year period following notice of the May 2013 rating decision. There is no assertion that the Veteran and his then-attorney were unaware that the rating decision had been issued, or that they failed to receive timely notice of the decision and related appellate rights. Rather, the Veteran's limited assertion is that his previous attorney representative was "incompetent." However, the Board notes that the evidence does not show that the previous representative lacked the competence to represent the Veteran in his claims before VA; rather, the fact that the attorney appealed the timeliness issue supports a finding that the attorney was taking steps to represent the Veteran's interests. Moreover, there is no reason the Veteran, who was also properly notified of the May 2013 rating decision, could not have submitted an NOD on behalf of himself. The Veteran had previously filed an NOD following a May 2003 rating decision. (He did not perfect an appeal after the RO issued a statement of the case in December 2003.) Within the file is a June 2013 statement that was submitted by the Veteran's attorney that provided background information regarding the Veteran's claims. It was a typed statement, wherein the attorney wrote that it was transcribed from a handwritten statement the Veteran had submitted to the attorney. Under the applicable regulation, 38 C.F.R. § 20.201, an NOD consists of a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. The Board has read through the June 2013 submission, wherein the Veteran described incidents in service involving drinking, including while stationed both within and outside of the United States. Within the submission, he did not express disagreement with the May 2013 rating decision. Thus, this submission is not considered an NOD. The Veteran's then attorney also submitted a request for a copy of the claims file in December 2013, which is within one year of the May 2013 rating decision. The attorney did not express disagreement with the May 2013 rating decision. Thus, this submission is also not considered an NOD. As already explained, the Board does not find that the previous attorney's stated lack of access to the claims file demonstrates good cause for the late filing of the May 2014 NOD, and the Veteran and prior attorney are presumed to have received timely notice of the May 2013 rating decision. Finally, neither the prior attorney nor the Veteran has argued that the statutory one-year time period for filing the NOD should be equitably tolled based on the attorney's allegation of the inability to access the claims file. To the extent equitable tolling of that time limit may be warranted under certain circumstances (which the Board need not address further herein), the attorney's inability to access the claims file is not such a circumstance, at least under the facts of this case as set forth above, when both the Veteran and attorney are presumed to have been sent timely notice of the rating decision. See, e.g., Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014); Noah v. McDonald, 28 Vet. App. 120, 127 (2016). Neither the notice to the Veteran nor the representative was returned as undeliverable. Thus, they are presumed to have received notice of the May 2013 rating decision. In sum, the Board does not have discretion to waive timeliness of the NOD, and the Board finds that good cause has not been shown to extend the time limit for filing it. See 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 3.109(b); Percy, supra. Accordingly, the appeal must be denied as a matter of law. See 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302. 2. Entitlement to service connection for headaches. The Veteran claims that his current headaches are related to active service. Specifically, at the June 2021 Board hearing, the Veteran testified that he first experienced headaches during active service in 1977 after his neck snapped back during a physical training exercise. He stated that he "just started living with [the headaches]" and didn't want to say anything for fear of appearing weak. He noted that his condition was compounded by a car accident in 2000 and again later that same year when he was shot in the head. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. For certain chronic disorders, including organic diseases of the nervous system, service connection may be granted on a presumptive basis if the disease manifests within one year following service discharge. Even where service connection cannot be presumed, service connection may still be established on a direct basis. Following a careful review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. The reasons for this decision follow. As to evidence of a current disability, post-service VA treatment records document the Veteran's reports of headaches during the pendency of his claim sufficient to meet the first criterion of a service-connection claim. Regarding the in-service element of a service-connection claim, the Board finds that service treatment records do not document complaints, treatment, or diagnosis of headaches during active service. For example, a December 1976 Report of Medical Examination prior to enlistment documents normal clinical evaluations of the Veteran's head, scalp, and neurologic system, without any notation of headaches as a defect or diagnosis. Within a concurrent December 1976 Report of Medical History, the Veteran specifically denied a history of frequent or severe headaches. Similarly, within a February 1979 Report of Medical History, the Veteran again specifically denied a history of frequent or severe headaches. Finally, a December 1979 Report of Medical Examination prior to discharge documents normal clinical evaluations of the Veteran's head, scalp, and neurologic system, without any notation of headaches as a defect or diagnosis, and the Veteran again specifically denied a history of frequent or severe headaches within a concurrent December 1979 Report of Medical History. The Board accords what is documented in the service treatment records high probative value, as statements made contemporaneously with the time period in question tend to be highly reliable, and the Veteran completed these documents contemporaneously with his period of active service in question. Given the above, the Board finds that the preponderance of evidence weighs against a finding that the Veteran's current headaches first had their onset during active service. As such, direct service connection is not warranted. Moreover, there is no probative evidence that headaches first manifested as an organic disease of the nervous system within one year of the Veteran's discharge from active service in January 1980. As such, presumptive service connection for headaches as a chronic disease is also not warranted. Additionally, the preponderance of the evidence is against a nexus between the Veteran's current headaches and his active service. For example, post-service treatment records from May 2000 document that the Veteran returned for follow-up treatment with "several new complaints, all stemming from an auto accident he had in February [2000]." The Veteran reported that his main problem was now headaches. Similarly, in June 2000, the Veteran reported complaints, including headaches following a motor vehicle accident in February 2000. Again, in September 2000, the Veteran reported that he was experiencing ongoing headaches, which he stated originated from a motor vehicle accident in February 2000. Subsequently, in May 2002, the Veteran was admitted for VA psychiatric treatment on a voluntary basis and reported complaints including chronic headaches secondary to a history of a gunshot wound while being robbed in November 2000. Social Security Administration (SSA) records document that the Veteran was found to be disabled for SSA purposes as of November 2011 due to lumbar spine and psychiatric disorders. Notably, a July 2009 Psychological Screening Evaluation conducted by Health Analysis, Inc., for SSA purposes documents that when the Veteran was asked why he was applying for SSA disability benefits, he reported that he had chronic headaches from a gunshot wound to the head. The Board finds that the above post-service evidence weighs against a finding of a nexus between the Veteran's current headaches and his active service. Rather, such records consistently document that the Veteran reported first experiencing headaches after a February 2000 motor vehicle accident, and again after a gunshot wound to the head in November 2000. Statements made while seeking treatment tend to be highly reliable, and the Veteran's own statements show that his headaches did not start until after a 2000 motor vehicle accident, which is more than 20 years following service discharge. Regarding the lay evidence of record, the Board acknowledges that the Veteran is competent to report symptoms that are observable to his lay senses, including headaches. However, to the extent that the Veteran now asserts that his current headaches first had their onset during active service or that they have been continuous therefrom, such statements are not credible given their inconsistency, both internally and with the additional evidence of record. Notably, the service treatment records show the Veteran sought treatment for other unrelated conditions during active service. These facts weigh against the Veteran's current lay assertion that he did not report symptoms that he experienced during active service because he did not want to appear weak. Additionally, as discussed above, the Veteran repeatedly denied a history of headaches throughout service and at service discharge, and his statements made during active service are inherently reliable as opposed to his current statements made in the context of his claim for VA disability compensation. This is not a situation where the record is silent for whether or not the Veteran experienced headaches, but where the record shows the Veteran affirmatively denying a history of headaches on two occasions during his last year in service. The Board has no reason to question the accuracy of such reports by the Veteran. Further, within the August 2015 claim for service connection for headaches, the Veteran himself reported that his headaches began in November 2000, which the Board notes is consistent with the time period when he reported receiving a gunshot wound to the head. Therefore, the Veteran's own statements of in-service headaches and continuing headaches following service are internally inconsistent and inconsistent with the additional evidence of record. This damages the Veteran's overall credibility and weighs against a finding that the Veteran's headaches, first claimed for VA compensation purposes in August 2015, had their onset during active service or that they have been continuous therefrom. Finally, the Board is mindful that to the extent the Veteran asserts a nexus between his current headaches and his active service, such statements are of no probative given that he has not shown that he has the medical expertise to render a nexus opinion regarding a complex and internal neurological condition like headaches. VA has not provided the Veteran with an examination or opinion in connection with the claim for service connection for headaches. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the evidence does not show that an event, injury, or disease occurred in service or that the current headaches disability may be related to service. For a VA examination and/or medical opinion to be warranted, all the McLendon criteria have to be met, and at least one element is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted for this the Veteran's current service connection claim for headaches. Given the above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for headaches. As such, there is no reasonable doubt to be resolved, and the claim for service connection is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.