Citation Nr: 22015677 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 16-15 978 DATE: March 18, 2022 ORDER The appeal as to whether a notice of disagreement (NOD) in response to a November 2011 rating decision was timely received is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for service-connected depressive disorder is remanded. FINDINGS OF FACT 1. Although a November 2011 rating decision denied multiple issues, to include a higher rating for service-connected psychiatric disorder, the correspondence and evidence received by VA from Veteran in April 2012 does not indicate which issues in the November 2011 rating decision the Veteran disagreed with. 2. Although VA received from the Veteran a January 2013 notice of disagreement (NOD), the NOD was not received prior to expiration of the appeal period of the November 2011 rating decision. 3. As to the claim for an increased rating for service-connected psychiatric disorder, VA received new evidence relevant to the claim within one year after the November 2011 rating decision; but the Agency of Original Jurisdiction (AOJ) made no determination regarding the submission of evidence within one year of the November 2011 rating decision; and an October 2014 rating decision was not directly responsive to that evidence. CONCLUSIONS OF LAW 1. A timely NOD was not received by VA as to the November 2011 rating decision denying increased disability rating for service-connected psychiatric disorder. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.3(a), 20.201, 20.300, 20.301, 20.302, 20.305 (2018). 2. Finality did not attach to the November 2011 rating decision as new and material evidence was received prior to expiration of the appeal period; and the December 2009 claim for an increased evaluation for service-connected psychiatric disorder remains pending. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board found the Veteran's NOD was untimely regarding an increased evaluation for service-connected depressive disorder. See BVA Decision (October 2018). The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA's Office of the General Counsel. The Court's order remanded the matter for action consistent with the terms of the JMPR. See CAVC Decision (May 2021). In June 2020, the Board again found the NOD was untimely and that an October 2014 rating decision addressed the new and material evidence submitted. See BVA Decision (June 2020). The Veteran again appealed to the Court. In December 2021, the Court granted another JMPR, vacating the decision and remanding the issue on appeal, noting that the Board failed to address an argument by the Veteran provided in her March 2020 informal hearing presentation. See CAVC Decision (December 2021). A December 2021 Board letter notified the Veteran she had 90 days to submit any additional evidence or argument. See BVA Letter (June 2021). In February 2022, the Veteran submitted a waiver of any time to submit additional evidence or argument and a waiver of any additional evidence or argument submitted. See Correspondence (February 2022). Accordingly, the Board may proceed to adjudicate the issue on appeal. 1. The appeal as to whether a notice of disagreement in response to a November 2011 rating decision was timely received is denied. The Veteran contends that her April 2012 submission should be sympathetically construed so that it meets the criteria for an NOD or that she submitted other NODs during the one-year period. See Remand BVA or CAVC (February 2022); Third Party Correspondence (March 2020); VA 21-4138 Statement In Support of Claim (March 2015); NOD (September 2014); Correspondence (September 2014). Alternatively, the Veteran asserts that the November 2011 rating decision was not final as she submitted new and material evidence within one year and the evidence was not subsumed by any subsequent rating decision because the 2014 rating decision was not directly responsive to the new submission. See Remand BVA or CAVC (February 2022); Third Party Correspondence (March 2020). The Board concludes that, although a timely notice of disagreement was not filed regarding a November 2011 rating decision denying a higher rating for service-connected psychiatric disorder, VA had received new and material evidence within one year of that decision and no rating decision issued thereafter was directly responsive to this evidence. 38 C.F.R. §§ 3.156(b), 20.302(a). Thus, in the end, the claim for increase remains pending. Bond v. Shinseki, 659 F.3d 1362, 1369 (2011) (VA must determine whether evidence received during the appeal period after a decision contains new and relevant evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final), The relevant law provides that an appeal consists of a timely filed NOD in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200. Except in the case of simultaneously-contested claims, a claimant or his/her representative must file an 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. 38 C.F.R. § 20.302(a). A NOD is a written communication from a claimant or from 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. 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. If the agency of original jurisdiction gave notice that adjudicative decisions 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. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the NOD must make that clear. 38 C.F.R. § 20.201. "In determining whether a written communication constitutes an NOD, the actual wording of the communication and the context in which it was written" must be considered. Jarvis v. West, 12 Vet. App. 559 (1999). VA is required to consider the full context within which submissions are made. Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed. Cir. 2011). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). "VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim." Bond v. Shinseki, 659 F.3d 1362, 1369 (2011). Absent any evidence of such a determination, it will not be presumed that VA considered, but rejected, the possibility that the submission contained new and material evidence. Bond, 659 F.3d at 1368. Furthermore, "the right created by § 3.156(b) does not evaporate when the agency issues an intervening decision that resolves the claim in question without addressing the evidence that gave rise to the agency's § 3.156(b) responsibilities." Mitchell v. McDonald, 27 Vet. Appl. 431, 437 (2015). VA must provide a determination that is directly responsive to the submission and until it does so, the claim remains open. Beraud v. McDonald, 766 F.3d 1402, 1407 (2014). This regulation overrides the general presumption that VA considers all relevant evidence submitted to it. Beraud, 766 F.3d at 1406. In this case, an October 2001 rating decision granted service connection for major depression, and assigned a zero percent evaluation, effective July 29, 1999. See Rating Decision (October 2001). On December 22, 2009, the Veteran filed an informal claim for an increased evaluation for depression. See VA 21-4138 (December 2009). A July 2010 rating decision assigned a 30 percent rating, effective December 22, 2009. See Rating Decision (July 2010). Within one year, additional medical records were associated with the Veteran's VA claims file. See e.g., Medical Treatment Record Government Facility (September 2010); Medical Treatment Record Government Facility (November 2010); Medical Treatment Record Government Facility (June 2011). A November 2011 rating decision was issued due to receipt of these additional records, which continued the 30 percent rating for service-connected depressive disorder. See Rating Decision (November 2011). The same rating decision denied service connection for, several other disabilities, including posttraumatic stress disorder (PTSD) and bipolar disorder. See Rating Decision (November 2011). In December 2011, a VA treatment record was associated with the claims file that noted that the Veteran was hospitalized due to a suicide attempt. See VAMC Report of Hospitalization (December 2011). In statements dated in March 2012, the Veteran stated she was requesting an increase in her "military service disability connection for bipolar depression." She reported various symptoms of her depression, PTSD, and bipolar depression. See VA 21-4138 Statement In Support of Claim (December 2011). The Veteran also submitted copies of medical leave paperwork, noting her request for leave due to her diagnoses of major depressive disorder and PTSD. See Third Party Correspondence (December 2011). She also submitted VA treatment records addressing depressive disorder and PTSD. See Medical Treatment Record Government Facility (December 2011). Other VA treatment records were associated with the claims file within a year of the November 2011 rating decision. These records were dated in December 2011, January 2012, and February 2012, and note inpatient and outpatient treatment for the service-connected depressive disorder and for nonservice-connected PTSD and bipolar disorder. See Medical Treatment Record Government Facility (December 2011); Medical Treatment Record Government Facility (April 2012); Medical Treatment Record Government Facility (March 2012). On April 2, 2012, the Veteran submitted a handwritten document in which she stated "[t]his is my appeal to the decision that was made December 2011." See Correspondence (April 2012). In July 2012 the RO notified the Veteran that the April 2012 communication was not accepted as an NOD, because it did not indicate the specific determinations in the rating decision with which she disagreed. See Notification Letter (July 2012). The RO informed the Veteran that she had until November 31, 2012, to submit a valid NOD. See Notification Letter (July 2012). On January 28, 2013, the Veteran submitted an NOD clarifying that she was dissatisfied with the evaluation assigned to the service-connected depressive disorder. See NOD (January 2013). At that time, she submitted multiple buddy statements from friends and family detailing her symptoms. See VA 21-4138 Statement In support of Claim (January 2013); Buddy/Lay Statement (January 2013); Third Party Correspondence (January 2013). In an August 2014 letter, the RO notified the Veteran that the January 2013 NOD was untimely as it had been received over a year after the November 2011 rating decision. See Notification Letter (August 2014). The Veteran appealed that determination. See NOD (September 2014); SOC (January 2016); Form 9 (February 2016). An October 2014 rating decision granted assigned a 70 percent rating, effective April 3, 2014. See Rating Decision (October 2014). The RO noted that the rating decision was issued based on the April 2012 submission, which it interpreted as a claim for an increased evaluation, and that the relevant records reviewed included VA treatment records dated from 2010 to the present. See Rating Decision (October 2014). Based on the review of the facts and relevant law, the Board finds as follows. First, the Board finds there is no timely NOD regarding the November 2011 rating decision. The record shows that the Veteran submitted a January 2013 NOD that indicated it was a disagreement with the November 2011 rating decision that denied an evaluation in excess of 30 percent for service-connected depressive disorder. See NOD (January 2013). This was submitted more than a year after the rating decision and is thus untimely. See 38 C.F.R. § 20.302(a). Second, the Board finds that no valid NOD regarding the November 2011 rating decision as the Veteran's April 2012 submission does not meet the criteria for an NOD. In this regard, although the April 2012 submission states the Veteran was appealing the 2011 rating decision, this submission does not indicate disagreement with any issue(s) decided in the November 2011 rating decision. The November 2011 rating decision addressed an increased evaluation for depressive disorder and service connection for multiple other issues, including bipolar disorder and PTSD. Thus, as there were multiple issues addressed in the rating decision, specific identification of the issue is required. See 38 C.F.R. § 20.201. See also Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020) (stating that a claim must identify with at least a high level of generality the disability, injury or disease being claimed). Even reading the submission in context does not provide further clarification. See Rivera, 654 F.3d at 1382. With her NOD, the Veteran submitted additional records that reference depression, bipolar disorder, and PTSD. But these records related both to the claim for an increased evaluation for service-connected depression and the claims for service connection for PTSD and/or bipolar disorder. Thus, the context does not provide further clarification. See Rivera, 654 F.3d at 1382. Furthermore, the RO contacted the Veteran to inform her she must clarify which determination or determinations in the 2011 rating decision she was appealing. See Notification Letter (July 2012). Despite the Veteran's arguments that she was not told or given an example of what she should do to meet the NOD criteria, this is not borne out by the record. Indeed, the RO's July 2012 letter informed her that she had "failed to list the exact issue(s) you do not agree with" and that that deficiency could be cured by sending an NOD regarding specific determinations by November 2012. See Notification Letter (July 2012). Although no form was listed, no specific form was required at that time. See 38 C.F.R. § 20.201 (2011) but see 38 C.F.R. § 20.201 (2015). The Board, therefore, finds that the April 2012 submission was not an NOD. Additionally, no other document submitted within one year of the November 2011 rating decision meets the criteria for an NOD. The Veteran has asserted that she submitted an NOD in March 2012 and in September 2012. See Correspondence (September 2014). Although she makes this argument, and a September 2012 submission is of record, it was not submitted until January 2013, as evidenced by the date stamp from the RO. See NOD (September 2014). Given the above, there is no valid, timely NOD regarding the November 2011 rating decision. Third, the Board finds that finality did not attach to the November 2011 rating decision as new and material evidence was received prior to expiration of the appeal period; and, therefore, the December 2009 claim for an increased evaluation for service-connected psychiatric disorder remains pending. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(b). In this regard, the record shows that, within one year after the November 2011 rating decision, VA treatment records dated in December 2011 through March 2012 were associated with the claims file. See Medical Treatment Record Government Facility (December 2011); Medical Treatment Record Government Facility (April 2012); Medical Treatment Record Government Facility (March 2012); VAMC Report of Hospitalization (December 2011). These records contained new evidence, as the records demonstrated treatment conducted after the November 2011 rating decision. The evidence is also material, as it referenced treatment for depressive disorder and the Veteran's psychiatric symptoms at that time. See 38 C.F.R. § 3.156(b). Thus, as there was new and material evidence received within one year of the rating decision, the initial claim thus remained pending unless it was extinguished by a later rating decision. The Board finds that the claim for an increase was not so extinguished. The RO issued an October 2014 rating decision and assigned a 70 percent evaluation for the service-connected depressive disorder, effective April 3, 2014, the date on which the Veteran reported his condition had worsened. See Rating Decision (October 2014). The decision provided that the relevant claim for an increased evaluation was made in April 2012, the date of the attempted NOD by the Veteran, and noted that VA treatment records dated from 2010 to 2014 were considered. However, the RO only addressed VA treatment records beginning in 2012, and specifically did not address the December 2011 hospitalization for a suicide attempt or the November 2011 VA treatment record indicating treatment for depressive disorder. See Rating Decision (October 2014). The Board finds that the rating decision was not directly responsive to the newly submitted evidence because it specifically noted that it was issued in response to the April 2012 claim and did not address new evidence submitted within the year after the 2011 rating decision. Thus, the Board finds that the evidence of record supports a finding that this rating decision was not directly responsive to the evidence the Veteran submitted within one year of the rating decision. See Beraud, 766 F.3d at 1407; Mitchell, 27 Vet. App. at 437. Accordingly, the 2009 claim for increase remained pending. Accordingly, the claim that a timely NOD was filed regarding the November 2011 rating decision is denied. There is no doubt to resolve. 38 U.S.C. §5107(b). However, December 2009 claim for an increased evaluation remains pending. REASONS FOR REMAND 2. Entitlement to an evaluation in excess of 30 percent for service-connected depressive disorder is remanded. Here, the Board has determined that new and material evidence was submitted in the year after the November 2011 rating decision. Thus, the claim made in December 2009 remains pending, despite the October 2014 rating decision, and must be readjudicated by the RO. This has not yet been done. Without such a rating decision and a subsequent perfected appeal, the Board may not address entitlement to a higher evaluation or an earlier effective date for the currently assigned 70 percent evaluation. See 38 C.F.R. § 20.200 (2018) (noting that an appeal consists of an NOD, a statement of the case, and a timely substantive appeal). On remand, the RO must readjudicate the issue of entitlement to an evaluation in excess of 30 percent for service-connected depressive disorder, based on the evidence submitted in the year after the November 2011 rating decision. Hickson v. Shinseki, 23 Vet. App. 394 (2010). The matter is REMANDED for the following action: Readjudicate the Veteran's December 2009 claim for an increased evaluation for her service-connected depressive disorder, based on 2011 VA treatment records and other submissions within the year following the November 2011 rating decision. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.