Citation Nr: A25017444 Decision Date: 02/26/25 Archive Date: 02/26/25 DOCKET NO. 231006-410907 DATE: February 26, 2025 ORDER The Veteran's request for higher level review of an April 2020 rating decision is considered timely; the appeal of this issue is granted. Entitlement to an effective date of June 27, 2019, but no earlier, for the award of a 70 percent initial disability rating for post-traumatic stress disorder with sedative use disorder and bipolar disorder is granted. FINDINGS OF FACT 1. Good cause has been shown to warrant extending the time limit for filing the request for higher level review of an April 2020 rating decision. 2. From June 27, 2019, the effective date of service connection, the Veteran's post-traumatic stress disorder with sedative use disorder and bipolar disorder manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for a timely request for higher level review of an April 2020 rating decision have been met. 38 C.F.R. §§ 3.109, 3.2500(a). 2. The criteria for entitlement to an effective date of June 27, 2019, but no earlier, for the award of a 70 percent initial disability rating for post-traumatic stress disorder with sedative use disorder and bipolar disorder, have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1998 to August 2002, and in the Army National Guard from June 2009 to May 2010, with additional periods of service in the Army National Guard. The Board thanks the Veteran for his service. The issue of the timeliness of the May 2021 VA Form 20-0996, Decision Review Request: Higher-Level Review arises from a July 13, 2021 letter. Within a year of the letter, on July 6, 2022, the Veteran filed a VA Form 20-0995 Decision Review Request: Supplemental Claim and identified the July 13, 2021 letter denying acceptance of the request for higher level review as an issue of disagreement. While the subsequent October 2022 supplemental claim decision did not address the timeliness of the May 2021 request for higher level review, the agency of original jurisdiction (AOJ)'s failure to adjudicate the issue does not deprive the Board of jurisdiction to address it. An NOD can encompass a matter that the AOJ failed to adjudicate but that was reasonably raised to it. Isenbart v. Brown, 7 Vet. App. 537, 540-41 (1995). Here, the October 2023 VA Form 10182, included the issue of the timeliness of the May 2021 request for higher-level review. Furthermore, the Veteran's timely appeal of the October 2022 decision placed it within the Board's jurisdiction, and once the Board has jurisdiction over a claim, it has jurisdiction "to address all issues related to that claim," even those not previously addressed by the AOJ. Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006). The rating decision on appeal as to the earlier effective date claim was issued on October 18, 2022, and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the October 6, 2023, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. In the October 2023 VA Form 10182, the Veteran listed the issues of entitlement to an earlier effective date for the award of a 70 percent rating for post-traumatic stress disorder, as well as the timeliness of a May 2021 request for higher-level review submitted in response to an April 2020 rating decision which awarded the 70 percent rating. The Board notes the issue listed in the October 2022 AOJ decision on appeal was incorrectly identified as entitlement to an earlier effective date for service connection for post-traumatic stress disorder with sedative use disorder and bipolar disorder. However, in the provided reasons for the decision, the AOJ addressed the issue of entitlement to an earlier effective date for the grant of a 70 percent disability rating. Timeliness of the May 2021 request for higher level review of the April 2020 rating decision with respect to an earlier effective date for the 70 percent rating for PTSD. A veteran must file a request for higher level review within one year of the notice of the AOJ decision. See 38 C.F.R. § 3.2500(a). Pursuant to 38 C.F.R. § 3.109(b), 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. This matter comes before the Board on appeal from a July 2021 decision that found that a May 2021 request for higher level review for an effective date earlier than January 17, 2020, for a 70 percent rating for PTSD assigned in an April 2020 rating decision was not timely filed. Notice of the April 2020 rating decision was issued on April 13, 2020. In a letter received by the VA on April 6, 2021, within one year of the notice, the Veteran's attorney representative submitted a signed VA Form 21-22a noting that he was just been appointed as the Veteran's attorney. The attorney requested that the VA not issue any decisions on pending issues and toll any filing deadlines for a period of 90 days from the date of the letter so that they could be granted electronic access to the Veteran's claims file, and the Veteran would not be irreparably harmed during the transfer period, or accept the letter as a substantive appeal. The Veteran's attorney contended that switching representatives is good cause under to 38 C.F.R. § 20.203. On May 4, 2021, a little more than one year after the Veteran and his former representative were sent notice of the denial of the April 2020 rating decision, VA received a completed VA Form 20-0996, Decision Review Request: Higher Level Review, requesting higher level review of the April 2020 rating decision. The representative requested that VA accept the appeal as timely filed given the representative's request to toll any filing deadlines for a period of 90 days from the date of the January 29, 2020, letter. The representative explained that they did not gain access to the Veterans Benefits Management System (VBMS) in the Veteran's case until May 4, 2021 the day he filed the request for higher level review. In a July 13, 2021, letter, the RO indicated it could not accept the request for higher-level review as the time limit to file the request had passed. The letter indicated the Veteran could file a Supplemental Claim or a VA Form 10182 (Board Appeal NOD) if he disagreed with the decision. Thereafter, the Veteran filed a Supplemental Claim on July 6, 2022, and, following an October 18, 2022 supplemental claim decision which did not address the timeliness issue, filed an October 2023 VA Form 10182 requesting review of the timeliness and validity of the May 2021, higher-level request filed in the response to the April 2020 rating decision. Upon review of this evidence, there is no question that the May 4, 2021, request for higher level review was not timely filed, as it was until more than one year following the issuance of the April 2020 rating decision. As such, the only question remaining before the Board is whether there is good cause to extend the filing deadline pursuant to 38 C.F.R. § 3.109(b). The Board recognizes that the Veteran only retained his current attorney a week or so before the end of the one-year period following the mailing of the April 2020 rating decision. This did not allow sufficient time for the attorney to examine the Veteran's claims file or assess the nature of his claims. Immediately upon signing the VA Form 21-22a, the attorney contacted the VA in an attempt to preserve all of the Veteran's pending appeals. Although this correspondence was not submitted on the proper form, it was received prior to the expiration of the one-year period following the April 2020 rating decision. In sum, the evidence of record reflects that the Veteran's request for higher level review election form was indeed untimely, as it was received more than one year following notice of April 2020 rating decision. However, as good cause has been demonstrated by way of the change in representation and the request from the Veteran's newly appointed attorney to extend the appeal period so they could adequately address the rating decision in question, the Board finds that the May 2021, request for higher level review pertaining to the April 2020 rating decision was timely. Given this finding, the appeal on this issue is granted. Entitlement to an effective date prior to January 17, 2020, for the award of a 70 percent initial disability rating for post-traumatic stress disorder with sedative use disorder and bipolar disorder. The Veteran contends that he is entitled to an effective date prior to January 17, 2020, for the award of a 70 percent disability rating for post-traumatic stress disorder, substance use disorder, and bipolar disorder (psychiatric disability). Specifically, he asserts that he is entitled to an effective date of June 27, 2019. See October 2023 brief. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase 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. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable if a claim is found to have been received but unadjudicated prior to that date. See 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). A claimant may indicate an intent to file a claim for benefits by submitting an intent to file a claim to VA. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives the application form within one year of receipt of the intent to file a claim, VA will consider the completed claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). A Veteran can preserve an effective date by continuously pursuing a claim or issue. This is accomplished by filing an appropriate administrative review option to an AMA, generally within one year of the issuance of the decision. 38 C.F.R. § 3.2500(h)(1). Based on the grant above with respect to the timeliness of the Higher-Level Review filing as to the April 2020 rating decision that assigned the effective date for the 70 percent rating for the Veteran's service-connected psychiatric claim, the Board finds that the Veteran has been continuously pursuing the effective date claim since the April 2020 rating decision which assigned the effective date. In turn, the initial increased rating claim that led to the April 2020 rating decision had been continuously pursued since receipt of a June 27, 2019 intent to file. The reference above to "the date entitlement arose" for effective date purposes is not defined in the current statute or regulation. The U.S. Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The Veteran's psychiatric disability is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, which uses the General Rating Formula for Mental Disorders. He is in receipt of a 30 percent disability rating, effective June 27, 2019, and a 70 percent rating effective January 17, 2020, with a temporary 100 percent evaluation from January 24, 2022, to March 31, 2022, for required hospital treatment. As the 70 percent disability rating awarded in the April 2020 AOJ decision was an initial disability rating, the date of claim is the effective date of service connection, June 27, 2019. With respect to the date entitlement arose, the Board finds that the Veteran met the criteria for a 70 percent disability rating for his psychiatric disability from the date of claim. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. According to a September 2019 examination from the Veteran's private psychologist, the Veteran suffered from mild-moderate PTSD. He denied current suicidal ideation but endorsed a remote history of suicidal ideation with a plan. He had a developed support system which included his family, best friend, and girlfriend. According to the examiner, the Veteran struggled with occupational and social impairment with demonstrated deficiencies in work, school, family relations, judgment, thinking, and mood. His symptoms included intermittently illogical speech, depression affecting his ability to effectively function, impaired impulse control evidenced by outbursts of anger and irritability with little to no provocation, spatial disorientation, difficulty adapting to everyday stressful environments like a work environment, and a poor ability to make and maintain effective friendships. According to a November 2019 VA examination report, the Veteran's psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, corresponding to a 10 percent disability rating under DC 9411. His symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner reported that the Veteran appeared to be functioning fairly well as indicated by successful full-time college attendance while maintaining supportive relationships. Resolving all doubt in the Veteran's favor, the Board finds that his psychiatric disability manifested by social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, from June 27, 2019. In a January 2020 letter, the Veteran's sister stated that he had distanced himself from family, which she attributed to his anxiety. According to a January 2020 letter from the Veteran's then-girlfriend, he avoided "any social or familial situation." His sister further reported that the Veteran struggled in adjusting to school and had been involved in a series of uncharacteristic bar fights. A September 2019 court document shows that the Veteran was charged with assault, and according to a university transcript, he was enrolled in a single-credit remedial course during the Fall 2019 term. The Board acknowledges that the November 2019 VA examination report generally shows a less severe disability picture than the other evidence of record. In this respect, the Board attaches probative weight to a February 2020 VA examiner's report that the Veteran admitted to underreporting his psychiatric symptoms at the November 2019 VA examination. In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's psychiatric disability manifested by social and occupational impairment with deficiencies in most areas from June 27, 2019. As such, the benefit-of-the-doubt doctrine is for application, and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This represents a full grant of the benefits sought on appeal. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alvarez, D.A. 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.