Citation Nr: 21031035 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 19-23 875 DATE: May 20, 2021 ORDER The request to reopen the claim of entitlement to service connection for malaria is granted. Entitlement to an effective date prior to November 3, 2006 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for a disability manifesting in colon problems is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for malaria residuals is remanded. Entitlement to a separate compensable evaluation for alcoholism is remanded. Entitlement to an effective date prior to February 6, 2012 for the grant of special monthly compensation (SMC) based on housebound criteria is remanded. Entitlement to an effective date prior to November 3, 2006 for the grant of Dependents' Educational Assistance (DEA) benefits is remanded. FINDINGS OF FACT 1. In a January 2004 administrative decision, the Veteran was denied service connection for malaria on the basis that he was not entitled to VA benefits due to the characterization of his discharge from service. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was new and material evidence received within one year, to include VA generated medical records. Therefore, the decision is final. 2. In April 2017, the Veteran submitted a private psychological opinion wherein the psychiatrist opined that the Veteran's actions that led to his discharge from service were caused primarily by his chronic alcoholism that was an attempt to self-medicate his PTSD symptoms. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, whether the Veteran is barred from VA benefits due to his conduct in service. Indeed, in September 2016, the Board of Veterans' Appeals (Board) found that the Veteran's service was not a bar to VA benefits. 3. In a March 1986 decision, the Board found that the Veteran was not entitled to any VA benefits on the basis of his discharge from service. The decision is final. 4. In a June 1988 administrative decision, the Agency of Original Jurisdiction (AOJ) found that the Veteran was not entitled to any VA benefits on the basis of his discharge from service. The Veteran did not appeal that decision, nor was new and material evidence received within one year of the decision. The decision is final. 5. The Veteran was not represented at the time of the June 1988 administrative decision because neither a VA Form 23-22 (Appointment of Veterans Service Organization as Claimant's Representative) nor a VA Form 2-22a (Appointment of Attorney or Agent as Claimant's Representative) was executed and received by VA prior to June 1988. 6. In a January 2004 administrative decision, the AOJ found that the Veteran was not entitled to any VA benefits on the basis of his discharge from service. The Veteran did not appeal that decision, nor was new and material evidence received within one year of the decision. The decision is final. 7. After the January 2004 administrative decision, the next correspondence that can be interpreted as a claim of entitlement to service connection for a psychological disorder was received on November 3, 2006. CONCLUSIONS OF LAW 1. The January 2004 administrative decision, which denied service connection for malaria, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 19.52 (2020). 2. The evidence received since the January 2004 administrative decision, which denied service connection for malaria, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2020). 3. The criteria for entitlement to an effective date prior to November 3, 2006 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5101, 5110 (2018); 38 C.F.R. §§ 3.1, 3.155 (2014, 2018, 2020), 3.160, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to June 1972, with service in Vietnam. His service has been deemed honorable for VA purposes. This matter comes before the Board on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA). Although the AOJ reopened the Veteran's claim of service connection for malaria, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the AOJ may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issue accordingly. For the reasons discussed above, the Veteran's request to reopen the previously denied claim of service connection for malaria is granted. Entitlement to an effective date prior to November 3, 2006 for the grant of service connection for PTSD. As an initial matter, the Board finds that it is proceeding with adjudication of this issue despite remanding other issues for outstanding records because this issue is predicated on evidence that was already of record prior to when the effective date at issue was assigned; in this case, November 3, 2006. As a result, any evidence received thereafter is not relevant to the determination of the date of the Veteran's claim, and it is not necessary to remand this issue due to outstanding records. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2020). An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. 38 C.F.R. § 3.1(p) (2020). Prior to March 24, 2015, a claim is 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). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Prior to February 19, 2019, a veteran must have filed a notice of disagreement (NOD) with a determination by the AOJ within one year from the date that the AOJ mails notice of the determination to him or her. Otherwise, that determination will become final. 38 C.F.R. § 19.52. However, if new and material evidence was received prior to the expiration of the appeal period, then the evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Prior to February 19, 2019, VA medical records created within the appeal period following a decision by the AOJ are constructively received for the purposes of 38 C.F.R. § 3.156(b), regardless of whether the VA adjudicator had knowledge of their existence. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). When evidence is constructively received within the appeal period of a rating decision, the decision does not become final until a determination is made as to whether such evidence is new and material. Id. at 1355. All decisions of the Board are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100. Factual Background The Veteran asserts he is entitled to an earlier effective date for the grant of service connection for PTSD for the following reasons: (i) a June 1988 administrative decision was not final because VA did not mail a copy of the decision to the Alabama State Department of Veterans Affairs (ASDVA), (ii) a January 2004 administrative decision remained pending because VA never addressed whether evidence received within a year of the decision was new and material, and (iii) the Veteran appealed the January 2004 administrative decision in December 17, 2004 VA medical records. See January 2020 correspondence. To establish an effective date earlier than November 3, 2006 for the grant of service connection for PTSD, the Veteran would need to show (1) that he had a prior claim of service connection for a psychological disorder that remained pending, and, if so, (2) that such disability first manifested prior to November 3, 2006. See 38 C.F.R. § 3.400. In May 1985, VA received an application for benefits, wherein the Veteran checked that he was not applying for disability compensation, but rather "hospitalization or medical care" benefits. Nonetheless, in a section where he was directed not to complete unless he was claiming compensation for a disability incurred in service, he stated that he was applying for a nervous condition. See May 1985 VA Form 21-526. In a June 1985 administrative decision, the AOJ denied the Veteran's claim for disability benefits on the basis that he was not entitled to VA benefits based on his discharge from service. He appealed that decision in August 1985. See August 1985 NOD. Ultimately, the Board denied his claim in a March 1986 Board decision, concluding that the Veteran "is not entitled to Veterans Administration benefits, including health care[.]" That decision is final. After the March 1986 Board decision, the next correspondence that can be interpreted as a claim for disability benefits related to a psychological disability was received in May 1988. In June 1988, the AOJ again denied the Veteran's claim on the basis that he was not entitled to benefits based on his discharge from service. The Veteran did not appeal that decision. After the June 1988 decision, the next correspondence that can be interpreted as a claim for disability benefits related to a psychological disability was received in June 2003. See June 2003 VA Form 21-526. In January 2004, the AOJ again denied the claim on the basis of his discharge from service. After the January 2004 rating decision, the next correspondence that can be interpreted as a claim for disability benefits related to a psychological disability was received on November 3, 2006. See November 2006 VA Form 21-526. Finality of the June 1988 AOJ decision As discussed above, the Veteran asserts that the June 1988 AOJ decision is not final because a copy was not mailed to ASDVA. See January 2020 correspondence. This assertion is not persuasive because ASDVA was not the Veteran's representative at the time of the June 1988 decision. Pursuant to regulation in effect at the time of the June 1988 decision, a power of attorney had to be executed on either a VA Form 23-22 (Appointment of Veterans Service Organization as Claimant's Representative) or VA Form 2-22a (Appointment of Attorney or Agent as Claimant's Representative). 38 C.F.R. § 14.631(a) (1987). There is no evidence of record, nor has the Veteran asserted, that either of these Forms were executed and received by VA. As a result, the Veteran was unrepresented at the time of the June 1988 decision and the AOJ was under no legal requirement to send any correspondence to ASDVA. The Board acknowledges that the AOJ had sent some correspondence to ASDVA, indicating that it believed ASDVA was the Veteran's representative. See, e.g., November 1985 statement of the case (SOC). Additionally, during an October 1985 AOJ hearing, ASDVA asserted itself to be the Veteran's representative. Nonetheless, because the law is clear that a VA Form 23-22 or VA Form 2-22a must have been executed in order to represent a claimant, it is irrelevant that the AOJ sent mail to ASDVA or allowed ASDVA to participate in the AOJ hearing. Because neither of those forms were received, ASDVA cannot be considered the Veteran's representative in June 1988. The Board also notes that the Board itself stated that the Veteran was represented by ASDVA in its March 1986 decision. The Board is not bound by the March 1986 discussion of the Veteran's representative because it was not a finding that had any bearing on the determination of whether the Veteran was barred from obtaining VA benefits. See Dallman v. Wilkie, 33 Vet. App. 101, 108-09 (2020). Thus, the determination is not binding. Consequently, the evidence reflects that the Veteran was unrepresented at the time of the June 1988 decision and the June 1988 rating decision was properly mailed only to the Veteran. The Board notes also that new and material evidence was not received within one year of the June 1988 rating decision. The Veteran has not asserted he submitted new and material evidence within one year of the decision. He did not submit any correspondence or materials within the one year period. Moreover, VA treatment records generated during the one-year period (but received in January 2017) are not material because they do not discuss whether the Veteran's conduct during service could be attributable to a psychological disorder. Indeed, it does not appear that any of the records within the one-year period discuss any psychological disorder or symptoms at all. As such, the records are not material. Because the June 1988 decision was properly mailed to the Veteran, the decision was not appealed, and new and material evidence was not received within one year of the decision, the decision is final. Thus, the Veteran is not entitled to an effective date prior to the June 1988 decision. Finality of the January 2004 AOJ decision As discussed above, the Veteran asserts that the January 2004 AOJ decision is not final because (i) VA never addressed whether evidence received within a year of the decision was new and material, and (ii) the Veteran appealed the January 2004 rating decision in December 17, 2004 VA medical records. The Veteran's assertions are not persuasive. 38 C.F.R. § 3.156(b) In support of the Veteran's assertion that the January 2004 AOJ decision is not final because VA never addressed whether evidence received within a year of the decision was new and material, he cited Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) ("Because § 3.156(b) requires that the VA treat new and material evidence as if it was filed in connection with the pending claim, the VA must assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim."), and Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) ("[U]nder § 3.156(b), the VA must provide a determination that is directly responsive to the new submission and..., until it does so, the claim at issue remains open."). See January 2020 correspondence. The Board does not disagree with the Veteran's assertion that VA must assess whether any evidence submitted within the one-year period is new and material. Nor does the Board disagree with his assertion that VA must provide a determination that is directly responsive to the submission of new and material evidence. However, the Board does not agree with the Veteran's assertion that it must find the January 2004 rating decision not final simply because there has not yet been a determination about whether any post-decision evidence is new and material. In Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020), the Board denied a motion to revise a 1996 rating decision based on clear and unmistakable error. The veteran argued that VA medical records generated in the year following the 1996 decision were constructively received by VA for the purposes of applying 38 C.F.R. § 3.156(b). The Federal Circuit agreed and found that the 1996 rating decision was still pending because no determination had been made as to whether such VA medical records were new and material pursuant to § 3.156(b). However, the Federal Circuit remanded the veteran's claim because the Board needed to review the post-decision VA medical records and determine whether new and material evidence had been received. Id. at 1355. As noted above, according to the Veteran, the Board must find that the January 2004 AOJ decision is not final without regard to whether any post-decision evidence is new and material simply because there has not yet been a 38 C.F.R. § 3.156(b) analysis. See January 2020 correspondence. Such a holding would be inconsistent with Lang. For if it is irrelevant whether any evidence is actually new and material simply because there has not been an adjudication by VA, the Federal Circuit in Lang would not have remanded the matter for a determination of whether the evidence in that case was new and material. Instead, the Federal Circuit would have simply found that the 1996 rating decision was not final; no additional determination would be necessary. Thus, in this case, the Board finds it is proper for it to determine whether evidence received within a year of the January 2004 AOJ decision is new and material. The January 2004 decision will be considered not final only if such evidence is new and material. The Board finds that none of the evidence or correspondence received within one year of the January 2004 AOJ decision is material. The SSA determination submitted by the Veteran is not material because it does not relate to the Veteran's conduct during service or characterization of service in any way. Similarly, VA treatment records generated during the one-year period are also not material because they do not discuss whether the Veteran's conduct during service could be attributable to a psychological disorder. As a result, new and material evidence was not received within one year of the January 2004 AOJ decision, and 38 C.F.R. § 3.156(b) is inapplicable. Whether the Decision was Appealed The Veteran seems to assert that he appealed the January 2004 AOJ decision because he reported in February 2004 VA medical records that he planned on appealing his non-service-connected pension claim that was recently denied. See January 2020 correspondence. In February 2004, an NOD was defined as a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201 (2003). The February 2004 VA medical record is not an NOD for many reasons. First, it is a verbal disagreement and thus is not considered a written communication. Second, it was not a communication to the AOJ. Third, he said that he planned on appealing the decision and there is no indication that he thought he was doing so in that moment. Lastly, he stated that he planned on appealing his non-service-connected pension, which even under the most generous of interpretations is not an appeal of service connection for a psychological disorder. For these reasons, the February 2004 VA medical record is not an NOD. There is no written communication from the Veteran that can be interpreted as an NOD to the January 2004 AOJ decision to the extent that it denied service connection for a psychological disorder. As a result, the Board finds that the Veteran did not appeal the decision. Because the Veteran did not appeal the January 2004 AOJ decision and new and material evidence was not received within a year of that decision, the decision is final. In conclusion, the Board finds that the March 1986 Board decision, the June 1988 AOJ decision, and the January 2004 AOJ decision are final. Thus, there was no pending claim of service connection for a psychological disorder prior to VA's receipt of the November 3, 2006 claim for benefits and an earlier effective date for the grant of service connection for PTSD must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a prostate disability; entitlement to a disability manifesting in colon problems; entitlement to service connection for diabetes mellitus, type II. The record reflects that the Veteran applied for Social Security Administration (SSA) disability benefits. See July 2016 correspondence. Because the Veteran's SSA records may reasonably contain information relating to the Veteran's issues on appeal, remand is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The record reflects that the Veteran has had a private colonoscopy. See February 2019 VA treatment records. While the results of the colonoscopy are noted in VA treatment records, remand is necessary to obtain a medical release for any private treatment records that may be relevant to the Veteran's claim. The Veteran reported having treatment done at a Naval Hospital. See January 2008 VA treatment records. On remand, the AOJ should ask the Veteran to clarify any treatment at any military hospital during or after service. If any hospitals are identified by the Veteran, the AOJ should obtain such records. The Veteran indicated that there may be VA vocational and rehabilitation records in existence. See March 2009 correspondence. On remand, the AOJ should obtain such records. 2. Entitlement to service connection for malaria residuals. A March 2017 VA examiner opined that the Veteran did not have any residuals of malaria. In VA medical records, the Veteran has reported that he lost weight due to the malaria and has been unable to regain the weight. See, e.g., June 2003 VA treatment records. It appears he may still have similar weight problems today. See March 2019 VA treatment records. The Board notes that the Veteran was noted to be underweight a day after his pre-induction medical examination. See February 1968 service treatment records (STRs). Because the examiner did not discuss whether the Veteran currently has any weight problems that could be a residual of malaria, the examination is inadequate and remand for a new examination is necessary. The Board notes that the Veteran requested the VA letters of engagement and curriculum vitae for the March 2017 VA examiner. See February 2021 correspondence. Because the Board is finding that examination inadequate, the Veteran's request is moot. 3. Entitlement to a separate compensable evaluation for alcoholism. The Veteran is only entitled to a separate compensable evaluation for alcoholism if he has a separate diagnosed disability other than his service-connected PTSD and the symptoms of his service-connected PTSD can be distinguished from alcoholism. See 38 C.F.R. § 4.14. The record reflects that the Veteran's alcoholism has been in remission during the entire appeal period. See January 2008 VA treatment records; May 2016 private psychological evaluation. Nevertheless, the AOJ characterized the Veteran's service-connected disability as PTSD with residuals of alcoholism in the narrative of the July 2019 SOC. An April 2017 VA examiner only diagnosed PTSD. Thus, the Board finds that remand for a new VA examination is necessary so that an opinion can be obtained as to whether any residuals of alcoholism can be distinguished from the Veteran's service-connected PTSD. The Board notes that the Veteran requested the VA letters of engagement and curriculum vitae for the April 2017 VA examiner. See February 2021 correspondence. Because the Board is finding that examination inadequate, the Veteran's request is moot. 4. Entitlement to an effective date prior to February 6, 2012 for SMC based on housebound criteria; entitlement to an effective date prior to November 3, 2006 for the grant of DEA benefits. These issues are inextricably intertwined with the remanded issue related to a separate rating for alcoholism. As a result, they are remanded as well. The matters are REMANDED for the following action: 1. The AOJ should request directly from the SSA relevant records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 2. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received, to include for his colon. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. The AOJ should request the Veteran to identify all military hospital treatment during and after service. If the Veteran identifies any hospital treatment, the AOJ should obtain such records. Because such records are presumably in the custody of a Federal department or agency, the amount of effort needed to be expended in obtaining these records is governed by 38 C.F.R. § 3.159(c)(2). If such records are not received pursuant to the AOJ's request, the Veteran should be so notified and the AOJ's efforts should be documented in the claim file. 4. The AOJ should obtain any relevant VA vocational and rehabilitation records. 5. The AOJ should obtain copies of VA treatment records from June 2019 to the present. 6. After the development in the first five directives is completed, the AOJ should arrange for a VA examination or telehealth interview of the Veteran to determine the nature of any malaria residuals. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination or interview of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: Regardless of whether there is medical evidence of malaria in service, please opine on whether the Veteran has any residuals of malaria at any time during the appeal period (from November 2006). The examiner must discuss any weight problems experienced by the Veteran and discuss whether such problems, if existing, are residuals of malaria. 7. After the development in the first five directives is completed, the AOJ should arrange for an examination of the Veteran to assess the nature and current severity of any alcoholism in addition to his service-connected PTSD. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. Specifically, the examiner is requested to respond to the following: Can any symptoms of alcoholism be distinguished from the Veteran's service-connected PTSD? Please explain why. 8. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.