Citation Nr: 21022120 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 19-07 057 DATE: April 14, 2021 ORDER The January 2020 Board decision finding that new and material evidence had not been received to reopen the claim for service connection for hypertension is vacated. The January 2018 substantive appeal filed in response to the Statement of the Case (SOC) dated August 25, 2017, addressing the claims of entitlement to service connection for posttraumatic stress disorder (PTSD), depression with sleep impairment, sleep apnea, and hypertension, was timely, and to this extent, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Board, on its own motion, finds that the January 2020 Board decision declining to reopen the claim for service connection for hypertension denied the Veteran due process rights. 2. The Veteran has rebutted the presumption of regularity regarding the mailing of the August 25, 2017 SOC addressing service connection for PTSD, depression with sleep impairment, sleep apnea, and hypertension. CONCLUSIONS OF LAW 1. The criteria for vacating the portion of the January 30, 2020, Board decision that declined to reopen the claim for service connection for hypertension have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. The January 2018 substantive appeal filed in response to the August 25, 2017 SOC was timely received. 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.103, 19.32, 20.200, 20.300, 20.302, 20.303, 20.110. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to October 1985. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the RO denied service connection for PTSD, depression, sleep apnea, and hypertension. In October 2014, the Veteran submitted a timely notice of disagreement (NOD). The RO issued a statement of the case (SOC) in August 2017. In January 2018, the Veteran submitted a new claim for service connection for PTSD, depression, sleep apnea, and hypertension. The Veteran also submitted a substantive appeal in response to the August 2017 SOC regarding the denials of service connection for PTSD, depression, sleep apnea, and hypertension, which the RO found untimely in February 2018. The Veteran timely appealed the February 2018 decision, while the RO also developed the January 2018 petition to reopen the claims for service connection. In April 2018, the RO declined to reopen the claims for service connection for PTSD, depression, sleep apnea, and hypertension. The Veteran timely appealed the April 2018 decision. In January 2020, the Board addressed the January 2018 substantive appeal and found that it was not submitted timely. The Board also reopened and remanded the claims for service connection for PTSD, depression, and sleep apnea. The Board did not reopen the claim for service connection for hypertension. The Board also remanded the issue of entitlement to a TDIU. The Veteran appealed the Board’s decision regarding the timeliness of the January 2018 substantive appeal to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties agreed that the Board did not adequately address whether the presumption of regularity was rebutted regarding the mailing of the August 2017 SOC. In a November 2020 order, the Court granted the JMPR, vacating the Board’s January 2020 decision finding the January 2018 substantive appeal submitted in response to the August 2017 SOC was untimely. The Court remanded the matter to the Board for adjudication. As discussed below, the Board finds that the January 2018 substantive appeal addressing service connection for PTSD, depression, sleep apnea, and hypertension was timely. In doing so, the Board must vacate the January 2020 decision that declined to reopen the claim for hypertension as the claim must be adjudicated as an original claim. While the Board also reopened and remanded the claims for service connection for PTSD, depression, and sleep apnea, the decision was not prejudicial to the Veteran and does not need to be vacated. In addition to addressing the timeliness of the January 2018 substantive appeal and vacating the January 2020 Board decision regarding hypertension, the development ordered in the January 2020 remand has been substantially completed and the claims for service connection for PTSD, depression, and sleep apnea as well as the claim for a TDIU have returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Order to Vacate 1. The January 2020 Board decision finding that new and material evidence had not been received to reopen the claim for service connection for hypertension is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.1000. For the reasons discussed below, the January 2020 Board decision declining to reopen the claim for hypertension is vacated. As noted above, herein the Board has found that the January 2018 substantive appeal submitted in response to the August 2017 SOC was timely. As such, the issue of entitlement to service connection for hypertension must be adjudicated as an original claim and not as a petition to reopen the claim. The Board’s January 2020 decision declining to reopen the claim for service connection for hypertension must therefore be vacated as the decision denies the Veteran due process of law. To this extent, the January 2020 Board decision is vacated. Timeliness of Substantive Appeal 2. The January 2018 substantive appeal filed in response to the SOC dated August 25, 2017, addressing the claims of entitlement to service connection for PTSD, depression with sleep impairment, sleep apnea, and hypertension, was timely, and to this extent, the appeal is granted. The Veteran contends that he timely perfected his appeal to the Board as to all claims adjudicated in the SOC issued in August 2017 addressing service connection for PTSD, depression, sleep apnea, and hypertension. VA regulations provide that an appeal consists of a timely filed NOD in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.20. A substantive appeal consists of a properly completed VA Form 9. Proper completion and filing of a substantive appeal are the last actions an appellant must take to perfect an appeal. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the RO mails the SOC 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 comes later. 38 U.S.C. § 7105; 38 C.F.R. § 20.302(b). Significantly, the Court has held in Percy v. Shinseki, 23 Vet. App. 37, 43 (2009), that an untimely substantive appeal “does not bar the Board’s jurisdiction over a matter.” The Board may waive the requirement of timeliness of a substantive appeal or decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to be the same date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(b). In this case, the RO issued a rating decision in July 2014 denying entitlement to service connection for PTSD, depression with sleep impairment, sleep apnea, and hypertension. The Veteran submitted a timely NOD in October 2014, and the RO issued an SOC readjudicating the claims in August 2017. No response was received from either the Veteran or his attorney until January 2018, well after the expiration of the 60-day period. The Veteran’s representative presented several arguments as to why the substantive appeal should be found timely. The Board finds persuasive the argument that the presumption of regularity does not attach because VA did not follow its mailing procedures. Significantly, the attorney argues that the SOC shows the August 2017 notice letter was dated on August 25, 2017 while the SOC was dated August 26, 2017. Essentially, the attorney argues that the notification letter could not have been sent the day prior to the issuance of the SOC document. The presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to the officials at the RO who were responsible for notifying the Veteran and his attorney of the August 2017 SOC in connection with his claims. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). The Veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA’s regular mailing practices were not followed. In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). However, an “assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.” Jones v. West, 12 Vet. App. 98, 102 (1998). Here, the Board finds that the contentions of the Veteran’s attorney are sufficient to rebut the presumption of regularity in mailing the SOC as the notification letter was dated one day prior to the date of the SOC. Further, August 25, 2017, the date of the notification letter, was a Friday, and August 26, 2017, the date of the SOC, was a Saturday. Based on the dates and days of the week indicated, the Board is unable to determine when the SOC was mailed. 38 C.F.R. § 20.302(b). As such, the Board finds that the presumption of regularity has been rebutted and that the January 2018 substantive appeal should be found timely. To this extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD and depression. In the January 2020 remand, the Board found that the January 2016 evaluation from a private provider, H.G., lacked adequate rationale to support a finding of service connection. H.G. did not discuss the precise causes of the Veteran’s psychiatric problems or attempt to link specific in-service experiences to the Veteran’s current symptoms. In July 2020, the Veteran submitted an addendum report from H.G. Notably, she cited to an opinion from the Veteran’s VA provider, C.T., dated February 26, 2016. The Board is unable to find this opinion in the claims file and on remand, attempts must be made to obtain it for review. Documents from the Social Security Administration (SSA) include excerpts of medical records from Sheboygan Clinic (S.C.), A.H.C., dated from 2004 to 2006. A September 2004 treatment record indicates that the Veteran had been taking Effexor since 2001. A May 2006 record notes that the provider used to treat the Veteran; however, his last appointment with the Veteran was in 2002. The provider stated that the Veteran had a significant history of depression and hypertension. Based on a review of the available records, it appears that there may be outstanding medical records addressing the Veteran’s depression from S.C. dated prior to 2004. Accordingly, a remand is necessary to attempt to obtain treatment records from S.C. Finally, the Veteran had a VA examination in March 2020. The examiner based the opinion, in part, on a finding that the evidence was silent for mental health treatment until 2014. The examiner did not address the records from S.C. On remand, the examiner must provide an addendum opinion addressing the etiology of the Veteran’s acquired psychiatric disorder with consideration of the records from S.C. The examiner should also address the private addendum opinion submitted in July 2020, and the opinion from C.T. if located. 2. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder, is remanded. The Veteran contends that his current obstructive sleep apnea is related to his acquired psychiatric disorder. However, because the claim for service connection for the underlying acquired psychiatric disorder has been remanded for evidentiary development, the claim for service connection for sleep apnea must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered) 3. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. Since the outstanding treatment records from S.C. may pertain to this claim, it must be remanded pending receipt of additional records. 4. Entitlement to a TDIU is remanded. The Veteran has submitted evidence that his acquired psychiatric disorder renders him unemployable. However, because the claim for service connection for the underlying acquired psychiatric disorder has been remanded for evidentiary development, the claim for a TDIU must be remanded as well as the claims are inextricably intertwined. See Harris, 1 Vet. App. 180. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Attempt to obtain the February 26, 2016 statement from the Veteran’s VA provider, C.T., addressing the etiology of his acquired psychiatric disorder. 3. Ask the Veteran to complete a VA Form 21-4142 for S.C. Make two requests for the authorized records from S.C. unless it is clear after the first request that a second request would be futile. 4. After obtaining any outstanding VA and private treatment records, ask the March 2020 examiner to provide an addendum opinion addressing the etiology of the Veteran’s acquired psychiatric disorder. For each diagnosed disorder, the examiner must opine as to whether it is at least as likely as not that any such disorder is related to the Veteran’s service. The examiner should specifically discuss the following evidence: the Veteran’s lay reports regarding his traumatic experiences in service; the January 2016 private psychiatric evaluation from H.G. noting a positive relationship between the Veteran’s current psychiatric symptomatology and in-service experiences; the July 2020 addendum report from H.G.; and the private treatment records from S.C., to include records attached to the SSA opinion. (Continued on the next page)   5. If it is determined that the Veteran’s acquired psychiatric disorder is related to his service, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. The examiner must opine as to whether it is at least as likely as not that the Veteran’s obstructive sleep apnea is caused or aggravated by his acquired psychiatric disorder. The examiner should specifically address the May 2019 private medical opinion provided by Dr. Blevins. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including entitlement to service connection for hypertension and to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. G. Alderman, 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.