Citation Nr: 21013196 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-17 303 DATE: March 8, 2021 ORDER An effective date prior to November 25, 2008 for the establishment of service connection for anxiety disorder is denied. REMANDED Entitlement to a disability rating in excess of 50 percent for service-connected anxiety disorder is remanded. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability is remanded. FINDING OF FACT 1. The Veteran filed an initial claim of service connection for an acquired psychiatric disorder in May 1994. That claim was denied by a September 1994 rating decision. 2. The Veteran was informed of the September 1994 rating decision, including his right to appeal, and did not appeal. 3. Following the September 1994 rating decision, there was no unadjudicated claim of service connection for an acquired psychiatric disorder that was received by VA prior to November 25, 2008. CONCLUSION OF LAW The criteria for an effective date prior to November 25, 2008 for the establishment of service connection for anxiety disorder have not been met. 38 U.S.C. §§ 5107, 5110, 7104, 7105; 38 C.F.R. §§ 3.400, 19.20, 19.21, 19.52, 20.1100, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1968 to November 1972. This matter is before the Board of Veterans’ Appeals (Board) originally on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for anxiety disorder (claimed as posttraumatic stress disorder (PTSD)) and assigned a 50 percent evaluation, effective April 29, 2013. A subsequent January 2017 decision review officer (DRO) decision assigned an effective date of November 25, 2008 for the establishment of service connection for the anxiety disorder. By a February 2019 decision, the Board denied an effective date prior to November 25, 2008 for the establishment of service connection for the Veteran’s anxiety disorder; a rating in excess of 50 percent for the anxiety disorder; and a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). By a February 2020 Order, the Court, pursuant to a joint motion for remand (JMR) vacated the Board’s February 2019 decision, and remanded the matter for action consistent with the JMR. 1. Entitlement to an effective date earlier than November 25, 2008 for the establishment of service connection for anxiety disorder The effective date of an award of service connection and compensation is the later of the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board notes that VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Here, however, the present effective date is already prior to this change in law. Moreover, as discussed in greater detail below, the Veteran contends that he is entitled to an effective date from 1994. Prior to March 24, 2015, VA recognized formal and informal claims. A formal claim was one that had been filed on a form prescribed by the Secretary. 38 C.F.R. § 3.151 (2014). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA could be considered an informal claim. Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, the formal claim would be considered as having been filed as of the date of receipt of the informal claim. When a claim had been filed which met the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening was accepted as a claim. 38 C.F.R. § 3.155 (2014). The provisions of former 38 C.F.R. § 3.157 commenced with a notation of the general rule that the effective date of an award of compensation benefits would be the date of receipt of the claim or the date when entitlement arose, whichever was later. However, the regulation went on to provide that receipt of clinical reports of examination or hospitalization could serve as informal claims "for increase or to reopen" where the claim was for an already service-connected condition. The date or date of receipt of such clinical evidence could serve as the basis for an earlier effective date for a subsequent award of VA benefits if such benefits derived from (1) a claim for increased evaluation, or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. "Application" was not defined in the statute. However, in the regulations, the terms "claim" and "application" were considered equivalent and defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2014); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defined a "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) referred to "an informal claim," it necessarily incorporated the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) made clear that there was no set form that an informal written claim had to take. All that was required was that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." In this case, the Board acknowledges that the Veteran filed an original claim of entitlement to service connection for an acquired psychiatric disorder that was received by VA on May 19, 1994. A September 1994 rating decision denied service connection for mental impairment on a direct basis or due to service trauma; as well as service connection for an acquired psychiatric disorder, to include a posttraumatic stress disorder (PTSD). Notification of the September 1994 rating decision was provided to the Veteran via correspondence dated September 23, 1994. The correspondence was sent to the Veteran’s address of record and no alternative address was on file at that time. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). That correspondence was not returned to VA as undeliverable. Moreover, the Veteran has responded to other correspondence from VA that were sent to that address. Further, other statements submitted in support of the Veteran’s appeal reflect he received such notification. The question in this case is whether the Veteran initiated a timely appeal to the September 1994 rating decision. An appeal consists of a timely filed Notice of Disagreement (NOD) in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 19.20 (previously 38 C.F.R. § 20.200); see also 38 U.S.C. § 7105. Except in the case of simultaneously-contested claims, a claimant or his/her representative must file a NOD with a determination by the Agency of Original Jurisdiction (AOJ) within one year of the date the AOJ mails notice of that determination to him or her. Otherwise, that determination will become final. The date of mailing of the letter of notification 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 C.F.R. § 19.52 (previously 38 C.F.R. § 20.302). 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 will constitute a NOD. While special wording is not required, the NOD must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 19.21 (previously 38 C.F.R. § 20.201). The February 2019 Board decision in this case found that the Veteran did not appeal the September 1994 rating decision. However, the JMR which was the basis for the Court’s Order in this case contended that decision did not adequately address a purported NOD from the Veteran dated November 1994 that was added to the record in August 2018. The Board notes that it previously found in a July 2014 decision that the Veteran did not appeal the September 1994 rating decision, and it became final. Nothing reflects the Veteran appealed that July 2014 Board decision to the Court. Therefore, that Board’s July 2014 decision is final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100. Moreover, the Veteran has not contended that Board decision is the product of clear and unmistakable error. See 38 C.F.R. §§ 20.1400, 20.1404. The Board further notes that even if the July 2014 decision had not been made, the present claim that the September 1994 rating decision did not become final would still be denied. The Board acknowledges that the pertinent document dated November 1994 would satisfy the definition of a notice of disagreement. Further, while the JMR refers to that document as being added to the record in August 2018, the record reflects it was actually received by VA in August 2016. Regardless, the record does not that reflect this document, nor any communication which would constitute a notice of disagreement, was date stamped as being received by VA within the appeal period of the September 1994 rating decision. In fact, following the September 1994 rating decision the next communication by or on behalf of the Veteran is date stamped as being received in March 1997. It is general VA procedure to date stamp when any such document has been received, and all other documents submitted by the Veteran in this case has such a date stamp. There is a legal presumption that government officials are presumed to have properly discharged their official duties. See, e.g., Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Court has applied this "presumption of regularity" to various procedures throughout the VA administrative process, including the RO's mailing of correspondence. Jones v. West, 12 Vet. App. 98, 100-02 (1998). Such a presumption should also apply to VA’s procedures regarding the receipt of mail. While the presumption is not absolute, it may be overcome only by the submission of "clear evidence to the contrary." Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). For example, in the case of mailed notices a claimant's mere statement of nonreceipt is insufficient for that purpose. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001). The Board observes that the Court has recently clarified the type of evidence which may rebut the presumption of regularity, including that such evidence need not be claimant specific. Romero v. Tran, No. 19-3687 (U.S. Vet. App. January 25, 2021). In that case, the claimant submitted three documents that supported the position that there were ongoing and widespread irregularities with VA’s mailing practices. These documents consisted of the following: 1) a 2017 U.S. Government Accountability Office report on VA entitled “Actions Needed to More Effectively Manage Outgoing Mail”; 2) a sworn statement from the claimant’s attorney that he was aware of at least 863 instances between July 2015 and May 2018 where VA failed to mail him a copy of case-related documents and noting that he had discussed this issue with Veterans Benefits employees, who acknowledged VA’s failure to consistently mail representatives copies of claimants’ decisional documents; and 3) a signed statement from the executive director of the National Organization of Veterans’ Advocates, Inc. (NOVA) describing NOVA’s efforts to inform VA of mailing failures, and noting that she was aware of 272 examples of VA mailing failures. The Court emphasized that it did not hold that VA’s mailing practices are irregular as a broad, categorical matter. The Board finds, however, that the record does not contain the type of evidence which would rebut the presumption of regularity in this case. For example, unlike in Romero, supra, there is no evidence of widespread problems at VA, to include the RO that had jurisdiction over the Veteran’s case, when it received communications from an outside party particularly the one year appellate period from the September 1994 rating decision. The Board notes that the Veteran’s attorney postulated in a December 2020 statement that the fact a paper copy of the November 1994 NOD to the electronic records system that contains the record currently available for review does not mean such was not received by VA. However, it is also general VA procedure to transfer all paper documents for a veteran’s claims folder to the electronic records system. The Veteran has not submitted evidence showing problems with VA uploading paper evidence to the electronic records system that would rebut the presumption of regularity. The Board acknowledges that the Veteran maintains that he did mail the November 1994 letter to VA. Further, his attorney noted in a December 2020 statement that the Veteran kept copies of all records he had provided to VA. Nevertheless, while the Board does not doubt the sincerity of the Veteran’s contention, the outcome of this matter is based upon whether an NOD was actually received by VA within the time period mandated by law; it is the date of receipt not date of mailing which governs such matters. The record does not contain evidence sufficient to rebut the presumption of regularity that if such an NOD had been received by VA within the applicable time period it would have been date stamped as such and added to the Veteran’s claims folder; and that such would have been uploaded to the electronic records system currently available for review. The Veteran’s attorney also contended in the December 2020 statement that the September 1994 rating decision did not become final because the notice of appellate and procedural right was incomplete and defective, to include under the provisions of 38 C.F.R. § 3.103 (1994). In pertinent part, the attorney contended that none of the referenced forms (VA Form 21-6796, VA Form 4107, VA Form 21-8764) were actually included with the copy of the September 29, 1994 letter provided to the Veteran. The Federal Circuit rejected a similar argument in Butler, supra. In that case, as here, the claimant did not dispute receiving the pertinent notification letter but contended it did not contain actual notice of his appeal rights. Further, in that case, as here, a copy of the notification letter was of record stating that a VA Form 4107 was enclosed, but the Form itself was not of record. Nevertheless, the Federal Circuit essentially concluded that, pursuant to the presumption of regularity, it was presumed that VA had properly discharged its responsibilities by attaching a copy of the notice of appellate rights to the notification letter. Clear evidence to the contrary has not been submitted to refute this presumption. For example, unlike the case in Romero, supra, evidence has not been submitted demonstrating widespread problems with VA enclosing such Forms at the time of the September 1994 notification letter was promulgated. Moreover, the evidence referenced in Romero regarding VA’s mailing practices concern a period of time years after the rating decision that is the focus of this appeal. The Board further notes that the Veteran’s own contentions in this case regarding the purported November 1994 NOD reflects that he was aware of what was necessary to initiate an appeal to the September 1994 rating decision. The Court has previously held that VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated … that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In addition, the Veteran was represented at the time of that rating decision by a veterans’ service organization which is presumed to have been aware of the requirements for initiating a timely appeal. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). At the time of the 1994 rating decision, 38 C.F.R. § 3.156(a) provided that "new and material evidence" is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. However, no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the September 1994 rating decision. Therefore, the Board finds that new and material evidence was not added to the record within the appeal period of that decision. In addition, the record does not reflect the Veteran had requested an extension to file a NOD for good case pursuant to 38 C.F.R. § 3.109. In light of the foregoing, the Board finds that the September 1994 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. Therefore, the effective date for the grant of service connection can be no earlier than the application to reopen. Following the September 1994 rating decision, there was no unadjudicated claim of service connection for an acquired psychiatric disorder that was received by VA prior to November 25, 2008. Stated another way, there was no written communication from the Veteran in which he indicated he was seeking service connection for an acquired psychiatric disorder, or was entitled to such benefits. In making the determination there was no unadjudicated claim prior to November 25, 2008, the Board acknowledges that in March 1997 the Veteran submitted a statement that he was denied previously for a claim to increase his percentage of disability; that he would like to reopen that decision; and that he believed that there were additional items that were not considered in denying his claim. Although the psychiatric disorder claim had been previously denied by the most recent rating decision in September 1994, other claims were also addressed by that decision; and the Veteran did not explicitly refer to the psychiatric disorder claim. Moreover, correspondence was sent to the Veteran’s address of record in April 1997 requesting clarification of what conditions he was claiming at that time. Thereafter, correspondence was sent to his address of record in June 1997 that his claim was being denied because he had not submitted the requested evidence; but noted that his claim would be reconsidered if such evidence was received by April 1998. The Board notes that the action noted in the June 1997 VA correspondence is consistent with the provisions of 38 C.F.R. § 3.158. Further, the Veteran has not contended he did not receive the April 1997 and/or June 1997 VA correspondence; nor does there appear to be clear evidence to refute the presumption of regularity regarding VA’s mailing of that correspondence. For all these reasons, the Board finds that the weight of the evidence is against the Veteran’s claim for an effective date earlier than November 25, 2008 for the establishing of service connection for his anxiety disorder. Therefore, the appeal on this matter is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for service-connected anxiety disorder is remanded. The parties to the JMR agreed that the Board’s denial of a rating in excess of 50 percent did not adequately address evidence indicating the Veteran’s anxiety disorder was manifested by suicidal ideation; and provided examples thereof. However, the Board notes that VA examinations in February 2009 and November 2017 reflect he denied suicidal ideation. Moreover, a December 2020 private vocational assessment indicates greater occupational impairment that what appears indicated on the pertinent VA examination. In light of the foregoing, the Board is concerned the evidence of record may not accurately reflect the current symptomatology and severity of the Veteran’s service-connected anxiety disorder. Therefore, a remand is warranted to accord him a new VA examination in this case. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).] 2. Entitlement to a TDIU due to service-connected disability is remanded. Resolution of the other the anxiety rating issue herein remanded may impact the determination with respect to whether the Veteran is entitled to a TDIU and, if so, at what point in time he became so entitled. As such, the Board will remand the TDIU issue as well. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his attorney should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing has been completed to the extent possible, arrange for the Veteran to be scheduled for an examination of his service-connected anxiety disorder. In addition to the specific symptomatology, the examination should also include an opinion as to the effect of the pertinent service-connected disability has upon the Veteran's ability to engage in substantially gainful employment, by itself and in the aggregate with the other service-connected disabilities. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.