Citation Nr: 21005788 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 09-02 142 DATE: February 2, 2021 ORDER As the Agency of Original Jurisdiction (AOJ) did not receive a timely notice of disagreement (NOD) regarding the May 2016 rating decision’s grant of service connection for tinnitus with a 10 percent rating assigned from November 13, 2015; and, its denial of service connection for bilateral hearing loss, reinstatement of the underlying appeal is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a disability rating in excess of 20 percent prior to May 16, 2016 and in excess of 40 percent as of May 16, 2016 for service-connected degenerative joint disease of the lumbar spine with disc herniation at L5/S is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence shows that the AOJ received a notice of disagreement with the May 2016 rating decision in October 2017, more than one year after the AOJ sent notification of the decision on May 26, 2016. CONCLUSION OF LAW The criteria for a timely NOD regarding the May 2016 rating decision are not met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 19.21, 19.52, 20.1103.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to July 1973 and from June 1974 to June 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2007 Regional Office (RO) rating decision and a December 2017 administrative decision. In the June 2007 rating decision, the RO denied entitlement to service connection for PTSD and denied a disability rating in excess of 20 percent for service-connected degenerative joint disease of the lumbar spine. The Veteran’s NOD was received in July 2007. The RO issued a statement of the case (SOC) in November 2008. The Veteran’s VA Form 9, substantive appeal to the Board, was received in January 2009. In May 2014 and November 2017, the Board remanded the case to the RO for further development and adjudicative action. The December 2017 administrative decision determined that the October 2017 NOD to the May 2016 rating decision was not timely. The Veteran’s NOD was received in January 2018. The RO issued a SOC in January 2019. The Veteran’s VA Form 9, substantive appeal to the Board, was received in February 2019. Whether the AOJ received a timely NOD regarding the May 2016 rating decision. The Veteran’s contends that his NOD should be considered timely as to the March 2011 rating decision.  Specifically, he asserts that VA did not mail to his attorney a copy of the May 2016 rating decision and instead mailed it to Disabled American Veterans. The Veteran’s attorney has continuously represented the Veteran on all VA claims since August 2006. His attorney first obtained a copy of the decision when he requested an updated copy of the Veteran’s claims file in May 2017. See October 2017 NOD. Under VA regulations, a legacy appeal consists of a timely filed written NOD and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal.  38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.22, 19.29, 19.51, 19.52. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal.  38 C.F.R. § 19.22.  For every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal, a NOD consists of a completed and timely submitted copy of that form. 38 C.F.R. § 19.21(a)(1).  A claimant or his representative must file a NOD within one year from the date that the AOJ mailed notice of a decision. 38 C.F.R. § 19.52.  If a NOD is not filed within the one-year time period, the decision becomes final.  38 U.S.C. § 7105(c); 38 C.F.R. § 3.160(d), 19.52, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal.  38 U.S.C. § 7105(c). The issue of whether a NOD has been filed on time is appealable.  38 C.F.R. § 19.34.  The Court of Appeals for Veterans Claims (Court) noted in Sellers v. Shinseki, 25, Vet. App. 265 (2012) that in order for a VA RO decision to be effective, the RO must provide notice in accordance with 38 U.S.C. § 5104(a). The Court pointed out that this statute, as enumerated in 38 C.F.R. § 3.103(b)(1)(f), dictates that notice of a VA RO decision shall be provided to the claimant and to his or her representative and such notification shall be in writing. A “presumption of regularity ‘supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’ Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926)).” Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO).  Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by “clear evidence” that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (holding that an appellant bears burden of demonstrating error on appeal).  The claims file shows that the RO granted service connection for tinnitus with evaluation of 10 percent, effective November 13, 2015 and denied service connection for bilateral hearing loss in a May 2016 rating decision. In a May 26, 2016 letter, the Veteran was notified of the May 2016 rating decision. The May 2016 letter was sent to the Veteran’s current address of record at that time and there is no indication that the notice was returned as undeliverable. The May 2016 letter was also sent to Disabled American Veterans. The RO received a completed VA Form 21-0958, Notice of Disagreement, to the May 2016 rating decision on October 4, 2017. With respect to representation, the evidence reflects the RO received VA Form 21-22a, Appointment of Individual as Claimant’s Representative, in August 2006, in which the Veteran appointed attorney J.C. to represent him with respect to all VA claims. Thereafter, the RO received VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, in November 2015. The Veteran appointed the Disabled American Veterans to represent him in any and all benefits from the VA in the November 2015 VA Form 21-22. In February 2016, the RO received a copy of a Power of Attorney dated in February 2016 that revealed the Veteran retained the attorney J.C. to represent in him in all proceedings relating to the veterans benefits before VA. In May 2016, the RO sent a letter to the Veteran and J.C. stating that they received a letter in February 2016 stating that he was being represented by J.C.; however, there is not a VA Form 21-22a on file for this representation [since his prior representation was revoked at the time the Veteran appointed Disabled American Veterans]. The RO received a completed VA Form 21-22a, Appointment of Individual as Claimant’s Representative, that appointed attorney J.C. to represent the Veteran for all VA claims in September 2016. In this case, when the RO received the completed VA Form 21-22 appointing Disabled American Veterans as his representative for any and all benefits from VA in November 2015, the VA 21-22 form automatically revoked the existing power of attorney VA Form 21-22a appointing J.C. to represent the Veteran that was received in August 2006. See 38 C.F.R. § 14.631(f)(1) (“Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney”). In a February 2018 letter, the Veteran’s attorney argued that the DAV representative mistakenly filed a power of attorney for the Veteran. However, the November 2015 VA Form 21-22 contained the signatures of both the Veteran and a representative from DAV. The VA Form 21-22 was then presented to the appropriate VA office for filing in the Veteran’s claims folder. The DAV also submitted evidence in November 2015 on behalf of the Veteran indicating that the VA Form 21-22 was not mistakenly filed with AOJ. The Veteran also did not specifically revoke the power of attorney for the DAV prior to VA receiving the VA Form 21-22a in September 2016. The power of attorney that the RO received in February 2016 indicating the Veteran retained the attorney J.C. to represent him in all proceedings relating to the veterans benefits before VA was not submitted with a completed VA Form 21-22a, Appointment of Individual as Claimant’s Representative. A power of attorney executed in either VA Form 21-22 or VA Form 21-22a is required to represent a claimant before VA. 38 C.F.R. § 14.631(a). A completed VA Form 21-22a appointing J.C. to represent the Veteran before VA was not received until September 2016. Accordingly, J.C. was not recognized as the representative of the Veteran for VA claims between November 2015 and September 2016. At the time May 26, 2016 letter that notified the Veteran and DAV of the May 2016 rating decision, DAV was properly recognized as the Veteran’s authorized representative. The May 2016 notification letter was sent to the Veteran’s then, current address of record and to the DAV. There is no indication that the Veteran and/or the DAV did not receive a copy of the May 2016 notification letter or the May 2016 rating decision. The Veteran has not shown by clear evidence that the AOJ did not follow regular, proper procedures. In light of the foregoing, the VA Form 21-0958, Notice of Disagreement, was not timely filed since it was received on October 5, 2017, more than a year after date of the notification letter, May 26, 2016, sent to the Veteran’s then current address of record and his representative at that time, the DAV. An untimely NOD is a jurisdictional bar to appellate consideration, and this issue may not be waived by the Board. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis in this case. See 38 U.S.C. § 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Accordingly, the appeal must be denied. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. With respect to the Veteran’s service connection claim for PTSD, the Veteran contends that his PTSD is related to in-service stressors of bombings and terrorist activity in Germany around the time he was stationed in Germany, personal assault while stationed in Germany, and being near mortars and bombs while stationed in Saudi Arabia during the Persian Gulf War. The Veteran underwent VA examinations in January 2013 and May 2016. The January 2013 VA examiner determined that the Veteran did not have a mental health diagnosis, to include PTSD. The March 2016 VA examiner determined that the Veteran did not meet the diagnostic criteria for PTSD under DSM 5 criteria. The examiner explained that the Veteran did not report sufficient a criterion C (avoidance) for DSM 5 diagnosis of PTSD. The examiner diagnosed the Veteran with other specified trauma and stressor related disorder and unspecified depressive disorder. The examiner noted that the Veteran’s reported stressor of being deployed to Saudi Arabia in December 1990 and was near mortars and bombs was related to fear of hostile military activity. The examiner determined that the Veteran’s other specified trauma and stressor related disorder is at least as likely as not caused by or a result of service. He explained that the Veteran’s reported stressors are consistent with his deployments and problems consistent with his diagnosed other specified trauma and stressor related disorder. A June 2006 psychiatric evaluation shows that a private psychiatrist diagnosed the Veteran with PTSD based on his in-service stressors while stationed in Saudi Arabia. In a November 2015 diagnostic report, a private licensed counselor provided a diagnosis of severe PTSD with depression related to his military service to include the personal assault that occurred while he was stationed in Germany, terrorist bombing that occurred in 1995 while he was in Germany, and bomb threats while he was station in Saudi Arabia during the Gulf War. The May 2016 VA examiner documented that he was unable to locate the June 2006 private treatment record in the electronic claims file. With respect to the November 2015 private treatment record, the examiner explained that the November 2015 licensed counselor is not a licensed psychologist and therefore she is not considered to have the qualifications to complete a PTSD Disability Questionnaire. The Federal Circuit as held that an opinion from a licensed counselor regarding the etiology of a claimant’s psychological disorder must be considered as “evidence” of whether the disorder was incurred in service. See Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) citing to 38 C.F.R. § 3.159(a)(1) (“Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinion.”). Thus, the licenses counselor is competent to provide a diagnosis of PTSD and an opinion with respect to wither the Veteran’s current PTSD is due to his in-service military stressors. The Veteran’s service personnel records reflect that the Veteran served in Germany from December 1971 to July 1973, from June 1974 to July 1977, April 1982 to April 1985, and from October 1986 to August 1989. He also served in Saudi Arabia in December 1991. The Veteran’s service personnel record does not support that the Veteran engaged in combat with the enemy. Although there is evidence from a private psychiatrist and a private licensed therapist that the Veteran has a diagnosis of PTSD related to fear of hostile military activity, VA regulations require that a diagnosis of PTSD based on the claimed stressor due to a fear of hostile military or terrorist activity must be made by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. See 38 C.F.R. § 3.304(f)(3). Accordingly, the Board finds that a medical opinion (and examination if deemed necessary by the psychiatrist or psychologist) is required prior to adjudicating the service connection claim for PTSD. 2. Entitlement to a disability rating in excess of 20 percent prior to May 16, 2016 and in excess of 40 percent as of May 16, 2016 for service-connected degenerative joint disease of the lumbar spine with disc herniation at L5/S is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran’s attorney raised the issue as to the June 2019 examiner’s competency to perform the June 2019 VA examinations, as well as, the adequacy of the examinations in an October 2019 letter. The attorney noted that the Appointment Confirmation states that the examiner is a “nurse practitioner – general practice” and has three years of medical experience. The Veteran has requested a copy of the June 2019 VA examiner’s curriculum vitae and other relevant evidence of her qualifications. The Veteran also asked for a copy of VA’s letters of engagement (instructions to the examiner). In Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019), the United States Court of Appeals for the Federal Circuit found that when a challenge to the competency of the medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. The Court held that the challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by the Veteran in the first instance. A challenge raised under such circumstances rebuts the presumption of competency and VA must satisfy its burden of persuasion as to the examiner’s qualifications by providing the Veteran with information about the qualifications of the examiner. Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. Accordingly, a remand is necessary to obtain a copy of the VA’s letters of engagement (instructions to the June 2019 examiner), the examiner’s curriculum vitae, and any other evidence of the examiner’s qualifications. The attorney in the October 2019 letter also indicated that there was not substantial compliance with the directives in the November 2017 Board remand and therefore, the Veteran should be provided with another VA examination. In this regard, the Board requested that the Veteran’s should be scheduled with a VA neurologic and orthopedic examination by an appropriate physician. The examiner was also asked to address the findings of the November 2013 private examiner in connection with his/her own observations on examination. The June 2019 examinations of the lumbar spine and peripheral nerves were conducted by a nurse practitioner and not a physician as requested by the Board. Furthermore, the June 2019 VA examiner did not address the findings of the November 2013 private examiner in connection with her own observations on examination. Thus, a remand is necessary to obtain new VA orthopedic and neurological examinations. The matters are REMANDED for the following action: 1. Undertake all reasonable efforts to obtain and associate with the electronic claims file the instructions to the June 2019 VA examiner, the June 2019 VA examiner’s curriculum vitae, and other credentialing information for the nurse practitioner who completed the June 2019 VA examinations. Such documents which may be redacted as deemed warranted. 2. Obtain a VA medical opinion by a psychologist or psychiatrist to determine whether the Veteran the Veteran’s current diagnosis of PTSD is related to active military service. The psychiatrist or psychologist must provide an opinion as to whether the current diagnosis of PTSD documented in the claims file is at least as likely as not (i.e., a 50 percent or greater probability) related to the Veteran’s claimed in-service stressors related to fear of hostile military activity. The examiner must provide a complete explanation for all opinions expressed. The examiner must consider and discuss the June 2006 and November 2015 private medical record, as well as, the lay statements from the Veteran. 3. Arrange for the Veteran to undergo a VA neurological examination, by a physician, if possible. The entire claims file must be made available to the examiner, and the examination report must include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies (to include X-rays) must be accomplished, and all clinical findings must be reported in detail. The examiner must set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. The examiner must identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the Veteran’s service-connected low back disability. The examiner must clearly identify whether any such problems constitute separately ratable neurological manifestation(s) of the service-connected low back disability. In particular, the examiner must discuss the Veteran’s sciatic nerve involvement, if any. Concerning any neurological symptoms identified, the examiner must state whether there is complete or incomplete paralysis of the nerve. If incomplete paralysis is present, the examiner must provide an opinion as to whether it is mild, moderate, moderately severe, or severe. All neurological manifestations and diagnoses should be addressed, and if necessary, etiology opinions as to whether it is at least as likely as not such manifestations are caused by the Veteran’s low back disability should be provided. 4. Arrange for the Veteran to undergo a VA orthopedic examination by an orthopedic physician, if possible. The entire claims file must be made available to the examiner, and the examination report must include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner must set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. The examiner must conduct range of motion testing of the thoracolumbar spine (expressed in degrees, with standard ranges provided for comparison purposes). The lumbar spine should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician must indicate the point at which pain begins. I The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Considering all orthopedic and neurological findings, the physician must also render findings particularly responsive to the criteria for rating intervertebral disc syndrome (IVDS)-specifically, comment as to the existence and frequency of any of the Veteran’s incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbar spine disability, the examiner must specify their frequency and duration. The examiner is specifically requested to address the findings of the November 2013 private examiner in connection with his/her own observations on examination. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.