Citation Nr: 21023981 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-58 117 DATE: April 21, 2021 ORDER Entitlement to an effective date earlier than March 26, 2015, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The November 2013 rating decision denying service connection for PTSD is final. 2. The Veteran’s March 2015 claim to reopen was the first claim to reopen subsequent to the November 2013 rating decision. 3. The Veteran did not file a request for an extension of time to file a notice of disagreement with respect to the November 2013 rating decision until November 2017. 4. The Veteran has not shown good cause as to why the action required to initiate an appeal (i.e., file a notice of disagreement) could not have been taken during the original time period and could not have been taken sooner than it was. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than March 26, 2015, for the award of service connection for PTSD have not been met. 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1966 to June 1969. The Veteran testified before the undersigned at a June 2020 Board Hearing held via videoconference. The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA’s compliance with the duties to notify and assist. The Veteran contends that he is entitled to an effective date prior to March 26, 2015, for the award of service connection for PTSD because circumstances beyond his control prevented his timely filing of a notice of disagreement with the November 2013 rating decision that initially denied service connection for PTSD. Specifically, he argues that he contacted his representative and provided the necessary paperwork for filing a notice of disagreement, to include a letter from his physician, in October 2014, but the representative became ill with heart trouble prior to filing the papers as agreed. See June 2020 Board Hearing Tr. at 3-4. The Veteran says he was unaware that his paperwork was not filed until he again visited the office on March 26, 2015. Id. at 4. He learned that the representative he had spoken with in October had become ill and the paperwork had not been filed. He testified that the individual who met with him in March 2015 then “took [his] letter [and] sent it through the filing” that same day. Id. The Veteran contends that by submitting the paperwork to his representative, he had completed his appeal. Id. at 5. Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases, the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(r), 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed.Cir. 2003). Here, there is no dispute that the initial claim of entitlement to service connection for PTSD was filed via an August 2012 VA 21-526EZ, that that initial claim was denied in a November 2013 rating decision, and that the rating decision would become final unless (1) a notice of disagreement was filed in or before November 2014 or (2) the time limit for filing a notice of disagreement was subject to equitable tolling. There is also no dispute that, subsequent to the November 2013 rating decision, the Veteran filed a claim to reopen on March 26, 2015. See March 2015 VA Form 21-526EZ (listing claimed disability as “Reopened Disabilities: posttraumatic stress disorder” and attaching a favorable opinion letter). Consequently, the earliest effective date for the award of service connection for PTSD is March 26, 2015 (the currently-assigned date) unless the November 2013 rating decision did not become final. The record contains no filing of any document by the Veteran or his representatives after the November 21, 2013 rating decision or the November 22, 2013 notification letter informing the Veteran of the rating decision. Therefore, the Board does not have to consider whether any document associated with the file during the one year after the rating decision could be construed as a notice of disagreement, because the Veteran and his representatives did not file any document at all. See 38 U.S.C. § 7105(b)(1)(A) (“a notice of disagreement shall be filed within one year from the date of the mailing of the notice of the decision of the agency of original jurisdiction”), (b)(2)(A) (“Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees”), (b)(2)(C) (“Notices of disagreement shall be filed with the Board.”), (c) (“If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except…as may otherwise be provided in such regulations as are consistent with this title.”); 38 C.F.R. §§ 20.201 (2014) (specifying requirements for the notice of disagreement), 20.302(a) (2014) (“a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final.”). The record is unequivocal that neither the Veteran nor his representatives filed a notice of disagreement during the one-year period after notice of the November 2013 rating decision was mailed. To the extent the Veteran argues that his submission of paperwork, including an opinion letter that supported his claim, to his representatives should be considered a filing with VA, the governing statute and regulations specify that the notice of disagreement has to be filed with VA. 38 U.S.C. § 7105(b)(1) (2014) (“notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination . . . and [must] be filed with the activity which entered the determination with which disagreement is expressed (hereinafter referred to as the ‘agency of original jurisdiction.’”); 38 C.F.R. § 20.300 (2014) (“The Notice of Disagreement and Substantive Appeal must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed” with certain exceptions for filing at other VA offices); see also 38 U.S.C. § 7105(b)(2)(C) (2021); 38 C.F.R. § 20.203(a) (2020) (“The Notice of Disagreement must be filed with the Board of Veterans’ Appeals.”). Therefore, submission by a Veteran to his representatives of paperwork that would constitute a notice of disagreement does not satisfy the statutory or regulatory requirements for filing a notice of disagreement. The only remaining avenue, then, is if the situation warrants equitable tolling of the time for filing a notice of disagreement. The Veteran argues that the unexpected health crisis of the Veteran’s representative does justify equitable tolling and, therefore, the supportive September 2014 physician’s opinion letter and, allegedly, a proper notice of disagreement should be considered timely filed. The regulations in effect at the time the Veteran contacted his representative (and when deadline for filing a notice of disagreement expired) do provide for extensions of time in extraordinary circumstances, but with specific requirements: 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. 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. 38 C.F.R. § 3.109(b) (2014) (emphasis added). Here, the Veteran made the request for an extension (to the extent he has actually made one) after the expiration of the pertinent time limit. As noted above, the Veteran and his representatives did not file anything between the November 2013 rating decision and the March 26, 2015 claim to reopen and the deadline would have expired in later November 2014. Therefore, any request for an extension necessarily came after the deadline had passed. Where a request for an extension is made after the expiration of the time limit, “the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of the request for extension of the time limit.” 38 C.F.R. § 3.109(b). So, the pertinent inquiries are when the Veteran made his request for an extension and whether he took “the action required” (i.e., filing a notice of disagreement with the November 2013 rating decision) concurrent with or prior to that request. The Veteran and his representatives have not identified the filing that they contend constituted a notice of disagreement with the November 2013 rating decision. See June 2020 Board Hearing Tr. at 8 (“We would request that you find that the Notice of Disagreement was received timely…” but failing to identify any filing that would be a notice of disagreement with the 2013 rating decision). There is some indication in the record that the Veteran believes the March 26, 2015 filing constituted a notice of disagreement. See November 2017 VA Form 9 (reverse side: “I learned about Roger in the New Year and had the paperwork submitted through DAV headquarters office in Chicago, March 26, 2015.”). As noted above, the filing in March 2015 consisted of a VA Form 21-526EZ and a favorable opinion letter. The March 2015 VA Form 21-526EZ is a claim form and specifically referenced reopening a claim of entitlement to service connection for PTSD, so, cannot reasonably be construed as a notice of disagreement, and, regardless, would not be the proper form for submitting a notice of disagreement under regulations that were enacted March 24, 2015. The September 2014 physician’s opinion letter is favorable evidence, but is not “a written communication from [the Veteran] 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” of the prior determination. See 38 C.F.R. § 20.201 (2014) (setting forth the requirements of a notice of disagreement at that time). The regulations provided: “While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review.” Id. The Veteran’s March 2015 submissions were styled as a claim to reopen and otherwise indicated an intent to reopen a previously denied claim. They did not convey disagreement with the November 2013 rating decision (beyond the disagreement inherent in a request to reopen) and, as importantly, contained no indication of a desire for appellate review. Instead, the package very plainly sought reopening by the agency of original jurisdiction. The Board finds that the documents filed on March 26, 2015, either singly or together, did not constitute a notice of disagreement with respect to the November 2013 rating decision and did not purport to be a notice of disagreement with the November 2013 rating decision or any other potentially relevant decision. Between the March 2015 claim to reopen (with the September 2014 opinion letter attached) and the August 2015 rating decision which granted service connection for PTSD, the Veteran and his representatives did not file any other document that could reasonably be construed as either a request for an extension of time or a notice of disagreement with the November 2103 rating decision. Thereafter, the Veteran did file a September 2015 notice of disagreement, but the notice of disagreement specifically disagreed with the August 2015 rating decision and the assignment of the effective date of the award. The document did not provide any argument for an earlier effective date, did not reference the 2013 rating decision, and did not explicitly or implicitly seek an extension of time to appeal. Instead, it was a straightforward appeal of the August 2015 rating decision. The Veteran and his representatives did not file any other documents relating to the PTSD claim until after the October 2017 Statement of the Case addressing the PTSD claim, when the Veteran filed a November 2017 VA Form 9 in which, for the first time, he summarized the events of late 2014 that resulted in his missing the deadline to perfect an appeal of the November 2013 rating decision. The Board will assume that this constitutes a request for an extension of time to file an appeal to the November 2013 rating decision. Similarly, because the regulations applicable in 2013-2014 did not require that a notice of disagreement be on a particular form, the Board will assume this 2017 filing is the equivalent of the “action required” to initiate an appeal of the November 2013 rating decision. The Board will make these assumptions without deciding them, because, even granting that the VA Form 9 could constitute a request for an extension and a notice of disagreement, the relief the Veteran seeks would still not be warranted. As the above summary establishes, the earliest document that can be construed as a notice of disagreement with the November 2013 rating decision and/or a request for an extension of the deadline to appeal that rating decision is the November 2017 VA Form 9. As a result, viewing the facts in the light most favorable to the Veteran, he did not timely file a notice of disagreement to the November 2013 rating decision and he waited nearly three (3) full years after the expiration of the deadline to request an extension and file the late notice of disagreement. The Board will further assume that the Veteran’s explanation of his failure to file a notice of disagreement within the time period (namely, his reasonable reliance on his representative and that representative’s unexpected health event) constitutes good cause for the delay up until the point he discovered the error. Even with this favorable assumption, the Veteran’s claim fails. The law requires that he show good cause “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.” 38 C.F.R. § 3.109 (emphasis added). The Veteran’s explanation addresses why the action was not taken during the original time period and why it was not taken in the four months from the end of November 2014 until the discovery of the lapse in March 2015. But his explanation in the November 2017 VA Form 9 (and later at his Board hearing) does not address why he waited two and a half years after the March 2015 discovery to make a request for an extension or why he waited those same two and a half years to express disagreement with the 2013 rating decision. In fact, he has still not provided any explanation for the delay after March 2015 and, consequently, has not shown any good cause for his failure to take the required action prior to November 2017. If he had filed his notice of disagreement and a request for an extension in March 2015 upon discovery of the lapse, his arguments might have provided good cause for an extension of roughly four (4) months. The Veteran’s description of these events was both plausible and highly credible. The Board accepts them as fact. However, rather than file a notice of disagreement and a request for an extension in March 2015, the Veteran, through his representative, filed a claim to reopen by the clear wording of the document submitted at that time. The Board emphasizes, again, that the necessary prerequisites to equitable tolling are that the Veteran perform the action required and, then, request an extension of time. See McPhail v. Nicholson, 19 Vet. App. 30, 34 (2005) (noting that “[e]quitable tolling of a time period is generally available to perform an action within that period only if the action had actually been performed” and citing 38 C.F.R. § 3.109(b)). Neither of these actions happened until November 2017, nearly three (3) years after the time for appealing the 2013 rating decision had expired and more than two years after discovering that no notice of disagreement had been filed. While the law provides the Board discretion to grant an extension of the time to appeal “for good cause shown”, the Veteran has not shown good cause for his delay until November 2017 to attempt to file a notice of disagreement with the November 2013 rating decision. See Corry v. Derwinski, 3 Vet. App. 231, 235 (1992) (holding that a statement that a veteran “was unable to respond to your initial denial due to the nature of my condition” was not sufficient, as a matter of law, to satisfy the regulatory requirement of good cause for an extension and also did not constitute an implicit request for an extension). The Veteran waited more than two years after discovering that his representative had not filed a notice of disagreement to correct the deficiency. Although the Board is sympathetic to his circumstances, good cause is not shown and equitable tolling is not warranted in this case. See McPhail, 19 Vet. App. at 34 (holding that there was no basis for seeking equitable tolling with respect to the appeal period where a claimant did not file a notice of disagreement during the 1-year period commencing when he or she first learned of the rating decision to be challenged). The request for an extension of time to appeal the November 2013 rating decision is denied, because the Veteran has not shown good cause for his failure to file either a request for an extension of the appeal period or a notice of disagreement prior to November 2017. Because equitable tolling is not warranted in this case and the request for an extension of time is denied and also because no additional, relevant evidence was received within one year of the November 2013 denial of service connection for PTSD, the November 2013 rating decision became final. 38 C.F.R. § 20.1103. Because the November 2013 rating decision is final, the earliest effective date available is the date the Veteran first requested that the claim be reopened. 38 C.F.R. §§ 3.400(r), 3.400(q)(2); Leonard, 17 Vet. App. at 452; Sears, 16 Vet. App. at 246-50. Here, the Veteran first filed a claim to reopen on March 26, 2015. Therefore, the earliest permissible effective date for the award of service connection for PTSD is March 26, 2015. That is the currently assigned effective date. Entitlement to an effective date prior to March 26, 2015, for the award of entitlement to service connection for PTSD is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.