Citation Nr: A25041259 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 220811-266884 DATE: May 6, 2025 ORDER An earlier effective date of October 11, 2012, for the award of service connection for an posttraumatic stress disorder (PTSD), is granted. REMANDED Service connection for a back condition. ? FINDING OF FACT The Veteran did not file a timely appeal following a December 2001 rating decision denying service connection for a psychiatric disability, and he did not provide good cause for why he could not file a timely appeal, but he filed a petition to reopen the claim on October 11, 2012, and he then timely appealed a March 2013 rating decision denying that petition to reopen. CONCLUSION OF LAW The criteria for an effective of October 11, 2012, for the award of service connection for PTSD, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.103, 3.304, 3.400, 19.26, 20.201, 20.300. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to December 1989. The case is on appeal from a June 2022 rating decision. In an August 2022 notice of disagreement (NOD), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the 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. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on that claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, for the claim being remanded, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Veteran was previously denied service connection for a back condition. The June 2022 rating decision found that new and relevant evidence had been received to readjudicate the claim. This is a favorable finding by the agency of original jurisdiction (AOJ). As there is not clear and unmistakable error in this finding, it is binding on the Board. The Board will therefore proceed to the address the claim on the merits. See 38?U.S.C. § 5104A; 38?C.F.R. § 3.104(c). In April 2025, the Veteran revoked the power of attorney for his representative. Thus, he is proceeding self represented. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An effective earlier than April 10, 2014, for the award of service connection for PTSD. In this case, a December 2018 rating decision granted service connection for an acquired psychiatric disorder, diagnosed as PTSD. It assigned an effective date of April 10, 2014. The rating decision explained that a prior rating decision in March 2013 denied a petition to reopen the claim, and that March 2013 rating decision became final. Then, the rating decision went on, VA received a request to reopen the claim on April 10, 2014, so it assigned the effective date from April 10, 2014, as that was the date the claim was reopened after which the Veteran had continuously prosecuted the claim. After the December 2018 rating decision, several actions took place regarding the effective date for PTSD. There was a March 2020 rating decision, then a May 2021 higher level review rating decision, and finally the June 2022 rating decision on appeal that all denied the claim. Because there was continuous pursuit of this issue, the appeal is a standard appeal of the effective date issue rather than one regarding clear and unmistakable error (CUE). The Veteran disagrees with the effective date assigned. He wrote in a January 2022 statement that the RO granted the claim in December 2018 based on the same stressor claimed in his original, 2001 claim. In a separate January 2022 statement, he added that nothing in his claim had changed other than the date his stressor was verified. The Veteran's former representative filed an appellate brief in February 2025. The representative argued that the effective date should at least be October 11, 2012, as the Veteran had continuously pursued the issue since then. But, the representative asserted, the Veteran had filed an original claim on February 26, 2001. The Veteran had not been able to file a timely appeal due to incarceration. The representative argued that the effective date should be from February 26, 2001, as the extenuating circumstances made it impossible for him to file an appeal. A. Applicable Law The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter. See 38 C.F.R. § 3.400(r). B. Discussion As argued, the Veteran filed an original claim of service connection for PTSD on February 26, 2001. The RO denied this claim in a December 2001 rating decision. The Board finds that an earlier effective date cannot be assigned from February 26, 2001. The file shows that the RO mailed the rating decision to the Veteran's last known mailing address of record. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. 38 C.F.R. § 3.103(b)(1). Notice means written notice sent to a claimant or payee at his or her latest address of record. 38 C.F.R. § 3.1(q). Accordingly here, the RO sent proper notice. Notably, the Veteran does not contend that he did not receive timely notice of this decision. Rather, his central contention is that he was not able to timely file an appeal due to an incarceration. To this end, the regulations at that time provided that a timely NOD must be filed within one year of the decision, otherwise the decision became final. 38 C.F.R. § 20.302(a). The Board observes that the regulations contained no provision allowing for an extension of time to file the NOD. See 38 C.F.R. § 20.300, et. al. The Veteran argues that he could not file the appeal due to the extenuating circumstances of his incarceration. The Board observes that he is essentially arguing for a tolling of finality based on good cause. The one-year deadline for filing an NOD is a mandatory claim-processing rule, so must be enforced. Ferko v. McDonough, 37 Vet. App. 262, 269 (2024). VA need not accept an NOD filed outside that one-year period unless a claimant establishes good cause for the NOD's untimeliness. Id. (going on to explain that the Board need not consider equitable tolling). Finality may be tolled if a notice error implicates due process by interfering with a claimant's ability to appeal a decision. See Cook v. Principi, 318 F.3d 1334, 1339-40 (Fed. Cir. 2002); Ingram v. Nicholson, 21 Vet. App. 232, 240-41 (2007). The Board finds here that good cause is not established. The file does not include information verifying his actual dates of incarceration. There is only circumstantial evidence. A February 2001 VA medical record states, "He was recently released from jail four months ago after a 15 month incarceration." A January 2002 VA medical record similarly reports that he completed parole in December from a two and one-half year incarceration. A December 2003 VA medical record indicates that he had lost weight due in part to being in jail for 11 months. According to a February 2004 VA medical record, the Veteran had one year of incarceration for burglary with another incarceration of four years for assault with a total of five years incarcerated for which he was release at the end of December 2003. Then, a June 2014 VA medical record indicates periods of incarceration from 1999 to 2000, and again from 2004 to 2008. Overall, this evidence does not establish the exact dates when the Veteran was incarcerated. Specifically, whether he was incarcerated during the one year appeal period after the December 2001 rating decision. The December 2003 VA medical record indicates that the Veteran had been incarcerated for 11 months prior. This would indicate his incarceration ended in approximately January 2003, which was greater than one year after the December 2001 rating decision. By inference, this would mean he was not incarcerated for the entire 12 months prior to the expiration of one year after the December 2001 rating decision. Moreover, in alignment with the February 2002 VA medical record, four months prior to February 2001 would have meant he was released from incarceration in approximately October 2001. An incarceration for 15 months prior to October 2001 would have begun in approximately July 2000. Overall, this indicates he was released from incarceration well after the December 2001 rating decision and was not incarcerated again until greater than one year after the December 2001 rating decision. Otherwise, a December 2015 VA Report of Incarceration indicates periods of confinement in 2004, 2008, 2009, and 2010. These dates were greater than one year after the December 2002. Overall, there is no indication he was incarcerated during the entire one year time period to appeal December 2002 rating decision. Even if he were incarcerated, good cause is still not established. Again, the Veteran has not alleged that he did not receive timely notice of the December 2002 rating decision. Rather, he contends that his incarceration precluded filing a timely appeal. Yet, he has not established why this is so. The United States Supreme Court has repeatedly held that the First Amendment of the U.S. Constitution entitles a prisoner to receive and send mail, subject only to the institution's right to censor letters or withhold delivery if necessary to protect institutional security, and if accompanied by appropriate procedural safeguards. See Hudson v. Palmer, 468 U.S. 517, 547 (1984). Here, the Veteran has not explained why he would not have been able to file an appeal while incarcerated. He had one year to do so. There is no reasonable basis to assume that he was entirely precluded for the entire length of an incarceration from sending correspondence to VA to initiate an appeal. He has identified no extenuating circumstances apart from the incarceration itself that prevented him from filing an appeal. He did not indicate any mental or physical incapacity during the incarceration. To the extent he was distracted during his incarceration, filing deadlines may not be tolled for general negligence or procrastination. See, e.g., Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (addressing filing deadlines at the CAVC). Hence, overall, the Board finds that finality may not be tolled for filing an appeal following the December 2001 rating decision. Hence, that rating decision became final, and an earlier effective date may not be assigned from February 26, 2001, the date of his original claim. Thereafter, the record shows that the Veteran filed a petition to reopen the PTSD claim on October 11, 2012. The RO denied service connection for PTSD in a March 2013 rating decision. The following month, April 2013, he called VA. According to the Report of General Information, the Veteran was "requesting reconsideration for his closed claim . . . 10/11/2012 claim was closed on 03.20.2013. [The] Veteran is asking for reconsideration for PTSD based on new evidence that was not submitted when the claim was open." The Board observes that the RO undertook no action this Report of General Information. Approximately one year later, on April 2014, the Veteran again called VA "to check on his claim for reconsideration for PTSD denial that he called in to open on 4-26-2013." The Board finds that the Veteran's April 2013 telephone call was adequate to initiate an appeal following the March 2013 rating decision. At that time, a written communication from a claimant 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 will constitute a NOD. While special wording was not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction 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. 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. "[T]he actual wording of the communication and the context in which it was written" must be considered in determining whether it constitutes an NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). The NOD must be filed with the Department of Veterans Affairs office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office. In that case, the NOD or Substantive Appeal must be filed with the VA office which has assumed jurisdiction over the applicable records. 38 C.F.R. § 20.300. Here, the April 2013 Report of General Information meets the requirements to be considered an NOD. It transcribed into writing the Veteran's statement expressly disagreeing with the March 2013 rating decision denying service connection for a psychiatric disability, and a desire to contest the results. Although it states he wanted "reconsideration" of the claim, this term broadly encompasses disagreement within the meaning of 38 C.F.R. § 20.201 (2013). Special wording, such as "disagreement," was not required. Hence, the April 2013 Report of General Information initiated an appeal of the March 2013 rating decision. The RO did not proceed to issue a statement of the case (SOC), as required by 38 C.F.R. § 19.26 (2013). Hence, the appeal remained open and pending when the Veteran again called the RO in April 2014. Currently, the effective date is assigned from the date he called the RO in April 2014. Overall, the Board finds that October 11, 2012, is the date of claim for determining the effective date. The next question involves when entitlement arose. Service connection for PTSD required medical evidence diagnosing the condition in accordance with § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Because the petition to reopen here was granted in the December 2018 rating decision, and the underlying service connection claim was ultimately granted with an effective date based on the receipt of the claim rather than the date entitlement arose, the Veteran by definition had an entitlement to benefits that existed by April 10, 2014. See Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012). Prior to that time, there was evidence of a PTSD diagnosis. VA medical records from VA's Psychiatry department in February 2001 included a diagnosis of PTSD. These records identify this as a new diagnosis. If a veteran has received a diagnosis of PTSD from a competent medical professional, VA must presume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). Accordingly here, the Board finds that the PTSD diagnosis is established from at least February 2001. Next, it is not in material dispute that a link, established by medical evidence, exists between current symptoms and an in-service stressor. A May 2017 VA PTSD examination establishes a link between the Veteran's diagnosis and an in-service stressor. Although this May 2017 VA examination post-dates the October 11, 2012 claim, it is the information in the medical opinion, and not the date of the medical opinion that is relevant when assigning an effective date. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). Here, the VA examination makes it factually ascertainable that the link existed by at least October 11, 2012. Thus, overall, the Board finds that entitlement to service connection had arisen by October 11, 2012. The Veteran contends that the effective date should be from the date of his original claim as all the evidence was the same. This is not entirely accurate. At the time of the December 2018 rating decision, the record included new evidence, especially the March 2017 VA examination. In either event, the effective date must be assigned from the later of the date entitlement arose or the date of claim. The Veteran's contention concerns when entitlement arose. Here, the date of claim on October 11, 2012, is later than when entitlement arose. Hence, the effective date must be assigned from October 11, 2012. In summary, the Board finds, after resolving all reasonable doubt in the Veteran's favor, that an effective date of October 11, 2012, is warranted for the award of service connection for PTSD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an earlier effective date is warranted to this extent. REASONS FOR REMAND Service connection for a back condition. The Board finds that this issue must be remanded for a predecisional duty to assist error. Specifically, an adequate VA examination is needed. In the rating decision on appeal, the RO made three favorable findings. First, it determined that the evidence shows that a qualifying event, injury, or disease had its onset during service. Specifically, he was treated for back problems in March of 1988. Second, the RO found that he had been diagnosed with a disability. It cited an April 2017 VA examination showing a diagnosis of spondylolisthesis. Third, the RO found that the Veteran had sufficient service to meet the minimum requirements for presumptive service connection. The RO denied the claim on the basis that there was no continuity of symptoms after service, and there was not a link between the current diagnosis and service. It cited a negative VA examiner's opinion. The evidence concurs with the RO's favorable findings. The service treatment records (STRs) show he was treated in March 1988 for a three day history of back pain after his truck went into a ditch. He twisted his back during the accident, which occurred in February 1988. The diagnosis was mechanical back pain secondary to the accident. In October 1989, he underwent diagnostic imaging for an unrelated condition. This imaging revealed a slight dextroscoliosis of the lumbar and visualized lower thoracic spine, but noted this may be positional. After service, the Veteran was referred for physical therapy at VA in June 2009 for complaints related to the lower left flank/back pain. The Veteran stated that he did not have low back pain "at all," nor did he have mid-back pain. He also had no radicular symptoms, no numbness or tingling sensations, and no weakness in his legs. He stated his pain was primarily located in his left flank. During a March 2015 VA examination, the Veteran complained of a gradual onset of chronic low back pain for about two years. During an April 2017 VA examination, the Veteran gave the date of symptom onset as 1988 as a result of repeated heavy lifting. During VA physical therapy in December 2019, the Veteran gave a history of chronic low back pain for at least 20 years. In connection with the instant appeal, the March 2015 VA examiner opined that the Veteran's diagnosis was less likely than not related to service. The VA examiner reasoned that there was no record of any complaint of back injury, back pain, treatment, or diagnosis of back pain during service. The examiner noted that the STRs show that in October 1989, the Veteran was evaluated for nausea, abdominal cramping, and diarrhea. A KUB (abdominal x-ray) was performed as a part of the evaluation of his intestinal complaints, and it showed a benign ancillary finding of "a slight dextro-scoliosis of the lumbar and visualized lower thoracic spine." The examiner noted that the report went on to say that this "may be positional." The VA examiner opined that the slight dextro-scoliosis of the lumbar and visualized lower thoracic spine "was indeed" positional as more current imaging was silent for this "slight dextro-scoliosis of the lumbar . . . spine." Additionally, according to the VA examiner, all treatment records were silent for any complaints of back pain prior to the instant VA examination. This March 2015 VA examiner separately opined that the Veteran's low back condition was less likely than not secondary to a service-connected knee disability. The VA examiner reasoned that a review of the medical literature indicated that occasionally a contralateral joint may experience additional strain due to an injured joint causing altered body mechanics. When such contralateral joint occurred, it was in response to a grossly abnormal ataxic or spastic gait. Additionally, the examiner noted that on occasion the joint immediately above or below the damaged joint can be impacted because of the muscles, ligaments, tendons, etc., that directly connected to the next (immediate) joint. The examiner found that the instant Veteran had an essentially normal gait, and his low back would not be impacted by a left knee condition. The April 2017 VA examiner also gave an opinion that the low back condition was less likely than not related to service. This examiner reasoned that there was no history of complaints of back problems after discharge from the service until 2015 when he complained of having had back pain for two years. The examiner found the Veteran's current back problems to be related to aging and unlikely to be related to any back problems in service The Board finds that these two VA opinions are not entirely adequate. First, the March 2015 VA examiner had an inaccurate factual foundation. The examiner based the opinion on the factual predicate that the Veteran had no back complaints or injury during service. As indicated, this is inaccurate as the Veteran had documented treatment for mechanical back pain after a truck accident during service. Second, regarding both VA examinations, each examiner relied on an absence of documented evidence after service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition after service, or why an absence of documented treatment or symptoms (as opposed to undocumented symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). It is true the Veteran gave conflicting accounts of his back pain history. The April 2017 VA examiner correctly noted this inconsistency. Yet, neither VA examiner considered whether the Veteran's condition may be associated with the in-service truck accident notwithstanding the absence of complaints after service. The Board finds that the evidentiary record at least raises the question of whether the type of injury experienced during service in the truck accident might be a precursor to the current diagnosis. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428 (2011). The April 2017 VA examiner opined that the Veteran's diagnosis was related to aging and unlikely related to service. But, the VA examiner provided no explanation for this conclusion. Moreover, it is not clear this VA examiner was aware of the in-service accident. The Veteran did not report it, and the VA examiner did not otherwise identify its occurrence. Thus, overall, the Board finds that neither VA examiner's opinion is entirely adequate to answer the complex medical questions involved in the matter. Remand is needed to correct his predecisional duty to assist error. The matter is REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed back condition. The examiner is asked to provide a response to the following: (a.) Is the condition at least as likely as not related to service, including treatment in March 1988 a truck accident in February 1988? i. The examiner is asked to address whether the current condition is the type that might be expected to have resulted from the type of injury during service as described in the service treatment records, instead of a more recent onset. (b.) Is it at least as likely as not that the condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.