Citation Nr: 21074416 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-56 326 DATE: December 15, 2021 ORDER Entitlement to an earlier effective date (EED) prior to March 5, 2012, for the grant of a 100 percent rating for posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. Service connection for PTSD was granted in a January 2011 rating decision, and a 30 percent rating was assigned effective March 5, 2012. 2. The Veteran did not submit a notice of disagreement (NOD) or submit new and material evidence within a year of the January 2011 rating decision. 3. The Veteran's increased rating claim for PTSD was received on March 5, 2012. 4. No formal or informal application to assert an increased rating claim for PTSD was received prior to March 5, 2012. CONCLUSIONS OF LAW 1. The January 2011 rating decision that granted service connection for PTSD and assigned a 30 percent rating is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. A timely NOD was not filed as to the January 2011 rating decision that assigned a 30 percent rating for PTSD. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.302(b), 20.303, 20.305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under VA regulations, an appeal consists of a timely filed written notice of disagreement and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the statement of the case to the appellant, 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 statement of the case will be presumed to be the same as the date of the statement of the case 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 U.S.C. § 7105; 38 C.F.R. § 20.302 (b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. By way of history, VA received the Veteran's service connection claim for PTSD on December 23, 1988. The claim was continuously pursued by the Veteran until January 2011. During that time, the claim came before the Board about ten times, and was before the United States Court of Appeals for Veterans (Court) four separate times. Service connection was ultimately granted in a January 2011 rating decision, and a 30 percent rating assigned, effective the date of claim, December 23, 1988. The Veteran, nor his representative submitted a NOD, or new and material evidence, within a year of the January 2011 rating decision. The Board notes that it has carefully reviewed the Veteran's claims file to ascertain whether new and material evidence was presented, within a year of the January 2011 rating decision, such that the original date of claim could be preserved. Unfortunately, that review did not reveal any new and material evidence sufficient to preserve the original date of claim. The Veteran asserts that his total schedular rating for PTSD, should be assigned from December 23, 1988. Specifically, he asserts that his attorney of record at the time he was granted service connection for PTSD did not timely file his appeal for an increased rating for PTSD. A careful review of the Veteran's claims file includes email correspondence between the Veteran and his attorney. The Veteran emailed his attorney in April 2011 asking him if he prepared the application for an increase for PTSD. The Veteran then sent follow-up email and written correspondence in May 2011 and July 2011 asking about the status of the increased rating claim and a claim for unemployability. The Veteran's attorney of record at that time responded later in July 2011, and stated that the VA examination showed findings that did not usually warrant a 30 percent rating and that the VA examiner did not report that the Veteran was unable to work due to PTSD. The attorney explained that without more evidence, the 30 percent rating could not be changed; and recommended that he have his treating doctor comment on his symptoms. Ultimately, no NOD was received by VA with respect to the January 2011 rating decision within one year of that decision. Subsequently, VA received the Veteran's increased rating claim for PTSD on March 5, 2012. After the necessary development took place, an August 2013 rating decision assigned a 100 percent rating for PTSD, effective March 5, 2012. VA received the Veteran's VA Form 9, perfecting his appeal as to the earlier effective date for the assignment of the 100 percent rating, in October 2017. In that document, the Veteran explained that his attorney failed to take timely action on the Veteran's request to appeal the assignment of a 30 percent rating for PTSD. The Veteran expressed that he had wished to timely appeal the award, and believed that his attorney would initiate an appeal. However, when it became clear that the attorney did not, or would not, take timely action, the Veteran initiated the appeal himself. The Veteran also asserted that copies of his correspondence with his attorney was sent to VA (which indicated his disagreement with the 30 percent rating), which VA could interpret as a NOD. The Veteran also reported that VA's Office of General Counsel found that his attorney had provided the Veteran with ineffective counsel and therefore, the Veteran should not be penalized for the failure of his ineffective counsel, pursuant to 38 C.F.R. § 3.102. The Veteran reported that he took every action necessary to file his NOD and appeal as soon as possible, when it became known that his authorized representative was not taking timely action on his behalf. The Board acknowledges the Veteran's assertion that his representative did not provide him the assistance required to timely file his substantive appeal. However, it is ultimately the Veteran's responsibility to ensure that a substantive appeal is timely filed with VA. While it is unfortunate that the Veteran's authorized representative failed to file or assist the Veteran in filing a timely substantive appeal, the fact remains that it was not filed on time. Ineffective representation does not serve as a basis upon which to grant the benefit sought. The record on appeal shows that both the Veteran and his representative were duly notified of the January 2011 rating decision and the need to file a NOD if there was disagreement with the determination. In any event, ineffective representation would not create a legal right to benefits which are precluded by law. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (holding that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Rather, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c); see also OPM v. Richmond, 496 U.S. 414, 434 (1990). The Board has also considered the doctrine of equitable tolling. The United States 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 curiam order). In addition, there is a three-part test to determine whether "extraordinary circumstances" in particular 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); Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). The Veteran asserts that his attorney did not timely submit a NOD in response to the January 2011 rating decision. As established above, a NOD was not timely filed. Failure by the Veteran's representative to timely file his substantive appeal does not rise to the level of "extraordinary" as contemplated by the doctrine of equitable tolling. McCreary, supra. The Board has sympathetically considered the arguments on appeal but can, unfortunately, find no basis on which to grant the appeal under the pertinent laws and regulations. While acknowledging the Veteran's assertion that his email correspondence with his attorney should be construed as a NOD, and his separate assertion that his PTSD has been severe enough to warrant a 100 percent rating since the original date service connection was granted, the fact remains that there is no indication of any formal or informal communication between the Veteran and VA, that he disagreed with the January 2011 rating decision.VA must be a party to the communication of a claimant's disagreement with a decision. Given such, the Board finds that the communication between the Veteran and his attorney does not constitute a timely filed NOD. Regarding the benefit of the doubt doctrine, the Board acknowledges that the Veteran intended to file a NOD, with respect to the assignment of a 30 percent rating for PTSD. However, as explained, the Board is bound by the applicable law and regulations and cannot grant an earlier effective date for the assignment of a 100 percent rating for PTSD in the Veteran's case. The Board acknowledges that the Veteran has been very diligent regarding his claims for PTSD. Indeed, the Veteran continuously litigated the PTSD service connection claim for 13 years, a process that was likely difficult and very stressful. However, the Board is without authority to grant the Veteran the benefit sought on appeal and must deny his claim as a matter of law. Accordingly, an effective date prior to March 5, 2012, for the assignment of a 100 percent rating for PTSD, is denied. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, Associate 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.