Citation Nr: 21029412 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-56 695 DATE: May 13, 2021 ORDER The Veteran's October 2016 filing of her VA Form 9 appealing the denial of her claim for service connection for a psychiatric disability is timely. REMANDED Entitlement to service connection for a psychiatric disability, to include bipolar disorder and personality disorder, is remanded. FINDING OF FACT The Veteran has shown good cause for failing to file a substantive appeal within 60 days following issuance of the March 2016 statement of the case, and filed a VA Form 9 with her request for an extension. CONCLUSION OF LAW The criteria for an extension of the time limit to file a substantive appeal has been met. 38 U.S.C. § 5104, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.109, 19.5, 19.32, 20.101, 20.200, 20.300, 20.302, 20.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1999 to April 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) that informed the Veteran that her VA Form 9 appeal form submitted October 18, 2016 was untimely. The Veteran filed her notice of disagreement with the finding that her VA Form 9 was untimely in December 2016, was issued a statement of the case in August 2017, and in October 2017 perfected her appeal to the Board. In March 2021, the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. Timeliness of VA Form 9 A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C. § 5104. Such notice must inform a claimant of the right to initiate an appeal by filing a notice of disagreement, plus the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103 (f). A claimant may then initiate an appeal from a VA decision by the timely filing of a notice of disagreement in writing. 38 C.F.R. § 20.200; Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the statement of the case or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The filing of a timely substantive appeal, as opposed to a notice of disagreement, is not a bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy, 23 Vet. App. at 45. The Board cannot raise a timeliness objection if, for instance, the RO had, for more than five years, treated the Veteran's claim as timely appealed and certified the issue to the Board, and after the Board identified the issue at a hearing and took testimony on the issue. Id. Additionally, while the Board notes that an extension to the time period for filing a substantive appeal may be granted for good cause, such request for an extension must be in writing and "must be made prior to expiration of the time limit for filing the [s]ubstantive [a]ppeal..." 38 C.F.R. § 20.303. Further, when a claimant requests an extension after the expiration of a time limit, "the action required of the claimant... must be taken concurrent with or prior to the filing of the request for extension of a time limit, and good cause must be shown as to why the required action could not have been take during the original time period..." 38 C.F.R. § 3.109 (b). As a matter of procedural history, in an August 2014 rating decision, the RO, inter alia, denied the Veteran's claims for service connection for PTSD and personality disorder, and continued its previous denial of service connection for psychiatric problems. In a January 2015 rating decision, the RO, among other things, continued its denial of service connection for psychiatric problems, informing the Veteran of the decision in a January 22, 2015 notification letter. In December 2015, the Veteran filed her notice of disagreement, and on March 31, 2016 was issued a statement of the case. In an October 2016 statement, the Veteran reported that she did not receive her statement of the case in time due to re-location and homelessness, stating that she is currently using her mother's address. The Veteran also submitted her Form 9 appeal October 18, 2016. The Veteran testified that she originally filed for a psychiatric disability in 2012, and stated that she has bipolar disorder, psychosis, major depressive disorder, anxiety disorder, PTSD, adjustment disorder and personality disorder. She stated that she has been homeless and has moved around several times. She also stated that she has tried to kill herself many times. The Veteran testified that when the statement of the case was sent to her address in Tomball, Texas around March 2016, she was having problems and moving around a lot, and thus probably did not receive the statement of the case. She stated that prior to service, she was in good shape psychiatrically, and had never been diagnosed with a mental health condition. She reported that something occurred during her service which caused her psychiatric disabilities. The Veteran's parents also testified that the Veteran was moving around a lot in March 2016, so if something was sent to her during that period, it was unlikely that she would have received it. While the Veteran's October 2016 substantive appeal was not received within 60 days from issuance of the March 31, 2016 date the RO mailed the Veteran the statement of the case, or within the remaining of the one year period from the January 2015 rating decision, an exception to the rule applies as the Veteran has provided good cause for failing to do file a timely Form 9 appeal. The Veteran's statement of the case was mailed to the Veteran at the address on file in Tomball, Texas. However, the Veteran has testified that she has been homeless and living in different places, including with her mother at a different address, and thus never received the March 31, 2016 statement of the case. Additionally, her parents attested to the fact that it was unlikely the Veteran would have received the statement of the case around that time as she was moving around a lot. There is no indication in the evidence of record that the Veteran or her parents lack credibility, thus their statements as to the Veteran's location around March 31, 2016 are afforded significant probative weight. The Veteran has provided good cause as to why she was unable to file a substantive VA Form 9 appeal, and submitted a VA Form 9 appeal concurrently with the filing of the request for extension of the time limit. Thus, an extension of the time limit to file a VA Form 9 appeal is warranted, her VA Form 9 is considered timely, therefore the Board has jurisdiction to adjudicate her claim for service connection for a psychiatric disability. REASONS FOR REMAND Psychiatric disabilities The Veteran's mother testified that when her daughter came home from the military, she had changed. She stated that the Veteran was unable to socialize with others and kept mostly to herself. The Veteran's mother stated that the Veteran's condition worsened with time. The Veteran's father testified that the Veteran is a very nervous person, but that was not the case prior to her active duty service. The Board notes that the record contains diagnoses of bipolar disorder and personality disorder, therefore the issue on appeal has been recharacterized to include all psychiatric disorders, including bipolar disorder and personality disorder as reflected on the title page of this decision, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's January 1999 medical examination report upon entry is normal with no indication that the Veteran suffers from a psychiatric disability. In a March 1999 postcard to her parents, the Veteran described feeling a little depressed and reported nightmares. She stated that her life was "going alright" but wished she had more enthusiasm. An April 1999 memorandum reflects a proposed separation action due to the Veteran's adjustment disorder. In a July 2012 statement, the Veteran's mother reported that the Veteran had problems most of her life, being sent to hospitals and rehabilitation centers to deal with behavioral problems for adolescents. She stated that the Veteran had social and learning problems in school, was placed in special education, but continued to have problems as an adult until she was diagnosed with bipolar disorder and properly medicated. In an August 2012 statement, the Veteran reported that the stress from military service caused her to have a bipolar episode, and she stated that had the military taken the proper precautions upon enlistment, she could have received the help she needed for her mental disorder and served her country for many years. In an October 2012 VA examination report, the examining psychologist opined that the Veteran's symptoms of bipolar disorder were less likely than not (less than a 50 percent probability) permanently aggravated beyond normal progression by her brief military service. The psychologist noted that the Veteran was in service for less than 2 months and did not report any stressor events during service. He stated that while the Veteran got into one argument with a fellow soldier, there is no indication that this in and of itself exacerbated her serious mental health issues that were noted prior to service. The psychologist reported diagnoses of bipolar disorder and personality disorder, but indicated it was not possible to differentiate what symptoms were attributable to each diagnosis. June 2014 VA treatment records reflect that the Veteran's treating physician assistant (PA) noted that the Veteran began experiencing auditory hallucinations in service, so she may have been developing her bipolar disorder during this time. In a July 2014 statement, the Veteran reported that during service, she developed a serious mental health condition which was severely aggravated. She stated that she was constantly yelled at, belittled, and stressed out which impacted her mental health and led to her hearing voices for the first time in her life. She reported that she continues to hear voices and also began having auditory and visual hallucinations. She also stated that she became paranoid and depressed during service, and that her symptoms have worsened ever since. In an August 2014 letter, the Veteran's mother reported that the Veteran is suffering from psychiatric disabilities due to her time in service and the paths that followed after being "rejected" from the service. She stated that she believed the Veteran's bipolar disorder was incurred in service as before service, the Veteran had received psychiatric treatment for behavioral problems, and was never diagnosed with a mental disorder prior to service. The Veteran's mother reported that since the Veteran left service she has been depressed, confused, unable to concentrate, hearing voices, irritable, had explosive behavior, memory loss, dependency, no social skills, mood swings, and no friends which is a definite change in the Veteran. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § § 3.304 (b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As previously noted, the Veteran's January 1999 medical examination report upon entry into service does not indicate that the Veteran suffered from a psychiatric disability upon entry. While there is evidence that the Veteran had behavioral issues prior to service which included stints in rehabilitation centers and hospitals, there is no clear and unmistakable evidence within the service treatment records or claims file which indicates the Veteran's psychiatric disabilities were not aggravated by service. The October 2012 psychologist stated that there is no objective evidence to support aggravation, but based his opinion on the lack of a stressor during service, failing to consider the Veteran's reports of stress due to the rigors of training and feeling "belittled". Therefore, there is no clear and unmistakable evidence of record that the Veteran's psychiatric disability was not aggravated by service, the presumption of soundness has not been rebutted, and the Veteran is presumed to have been sound upon entry into active duty service. The Board finds the October 2012 psychologist's opinion inadequate as he provided an opinion as to aggravation and failed to consider the Veteran's competent and credible reports of stress due to her treatment during service. Additionally, as the presumption of soundness was not rebutted, the psychologist must opine as to whether the Veteran's psychiatric disabilities were incurred in, or are otherwise related to service. A remand for a new opinion is necessary to determine whether the Veteran's psychiatric disabilities are related to service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (in cases where the presumption of soundness cannot be rebutted, claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The matter is thus REMANDED for the following actions: Obtain an opinion from an appropriate psychologist/psychiatrist to determine the etiology of any psychiatric disability. If an examination is deemed necessary, one should be conducted, to include via telehealth if feasible. The psychologist/psychiatrist should opine as to whether the Veteran's psychiatric disabilities are at least as likely as not (at least a 50 percent probability) related to service, to include the Veteran's reports of stress due to being belittled and yelled at during service. In this regard, the Veteran is presumed sound upon entry into service and any evidence indicating a psychiatric disability prior to service should not be considered. If the psychologist/psychiatrist determines that the Veteran has a diagnosis of PTSD, the psychologist/psychiatrist should opine as to whether the Veteran's PTSD was at least as likely as not (at least a 50 percent probability) related to an in-service stressor, to include the Veteran's reports of stress due to being belittled and yelled at during service. The psychologist/psychiatrist is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. (Continued on the next page) All opinions expressed must be accompanied by a complete rationale. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.