Citation Nr: 1743971	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO. 17-22 505	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder (other than PTSD) diagnosed as dysthymia.


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

C. Jones, Associate Counsel




INTRODUCTION

The Veteran had active service from June 1956 to August 1959.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for an acquired psychiatric disorder (other than PTSD) diagnosed as dysthymia and assigned a 50 percent rating, effective, August 30, 2007.

The issues of entitlement to service connection for gastroesophageal reflux (GERD), irritable bowel syndrome (IBS), and hiatal hernia have been raised by the record in correspondence received in April 2009.  Although the RO issued a notification letter advising the appellant of what was needed to substantiate his service connection claims, the claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to an initial increased rating for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran's claim of service connection for PTSD was denied by the Board in a November 2011 decision.  

2.  The Veteran did not appeal the November 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court); thus the November 2011 Board decision is final.  


CONCLUSION OF LAW

The claim of entitlement to service connection for PTSD is dismissed as a matter of law.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 20.1100 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Clams Assistance Act of 2000 (VCAA)

As detailed below, the appeal regarding the issue of service connection for PTSD is dismissed as a matter of law.  Accordingly, no discussion of the VA's duties to notify and assist is needed.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.10, 3.156(a), 3.159, 3.326(a); Mason v. Principi, 16 Vet. App. 129 (2002).

Service Connection for PTSD

The Veteran's claim of service connection for PTSD was received by the RO in August 2007.  The claim was denied in a September 2008 rating decision.  The appellant filed a timely notice of disagreement (NOD) in November 2008.  Thereafter, a statement of the case was issued and the appeal was certified to the Board.

In a November 2011 decision, the Board denied service connection for PTSD and remanded the issue of service connection for an acquired psychiatric disability (other than PTSD).  The decision was accompanied with a notice that the Veteran had 120 days from the date of the decision to file a Notice of Appeal (NOA) with the Court of Appeals for Veterans Claims (Court).  The record does not reflect that the Veteran filed a NOA within this timeframe.  Thus, the Board decision denying service connection for PTSD is final.

Subsequently, in a November 2014 rating decision, the RO granted service connection for an acquired psychiatric disorder (other than PTSD) diagnosed as dysthymia.  In March 2015, the Veteran filed a NOD regarding the characterization of the service-connected disability in the November 2014 rating decision.  

The RO inappropriately treated the Veteran's March 2015 NOD as a disagreement with the claim of service connection for PTSD, which was not addressed in the November 2014 rating decision.  The RO issued a statement of the case and the Veteran submitted a substantive appeal.  Thereafter, the issue of service connection for PTSD was certified to the Board.  

The Board has jurisdiction where there is a question of fact or law on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  In this case, given the above procedural history, by virtue of the November 2011 Board decision, the Board does not have jurisdiction over the merits of the appellant's claim of service connection for PTSD.  As detailed herein, the November 2011 Board decision denying service connection for PTSD is final, as it appears that the Veteran did not appeal the Board's decision to the Court.  There is no indication that the claim of service connection for PTSD was adjudicated by the RO in a subsequent rating decision with which the Veteran disagreed.  Thus, there is no "controversy" or "issue" currently before the Board.

The law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105(d)(5) (West 2014).  As the Veteran's claim of entitlement to service connection for PTSD was denied in a final Board decision, there being no evidence that the Veteran appealed the denial to the Court, and there being no subsequent adjudication of claim of service connection for PTSD for which the Veteran could appeal, there is no error of fact or law for the Board to address.  Accordingly, the claim of service connection for PTSD is dismissed as a matter of law for lack of jurisdiction.


ORDER

Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed.


REMAND

As detailed above, in the November 2014 rating decision, the RO granted service connection for an acquired psychiatric disorder (other than PTSD) diagnosed as dysthymia, and assigned a 50 percent disability rating, effective August 30, 2007.  In March 2015, the Veteran filed a notice of disagreement.  Although the Veteran specifically discussed his disagreement regarding the characterization of the service-connected disability, the Board construes the notice of disagreement to be a disagreement with the assigned disability rating.  The record currently available to the Board contains no indication that a statement of the case addressing this matter has been issued.  This must be accomplished on remand.  See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a statement of the case has not yet been issued, a remand to the RO is necessary).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

The AOJ should ensure that a statement of the case has been issued to the Veteran and his representative addressing the issue of entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder (other than PTSD) diagnosed as dysthymia.  The Veteran must be advised of the time limit in which he may file a substantive appeal, if he so desires.  38 C.F.R. § 20.302(b) (2016).  This issue should be returned to the Board for further appellate consideration, only if an appeal is properly perfected.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s