Citation Nr: 0006098 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 97-06 841A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether a timely substantive appeal was filed from the April 1995 rating decision which denied entitlement to an increased evaluation in excess of 10 percent for a right foot disability. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for a skin disorder, to include dermatitis, poison ivy, poison oak, plantar warts, dry skin, rosea, acne and/or dandruff. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Army from August 1974 to August 1977. She apparently then was a member of the Army Reserves from September 1977 to July 1983. This case comes before the Board on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied the appellant's claim of entitlement to an evaluation in excess of 10 percent for her right foot disability, as well as her claims of entitlement to service connection for post-traumatic stress disorder (PTSD) and for various skin disorders. As a technical legal matter, the only issues over which the Board clearly has appellate jurisdiction are set forth on the title page. The Board points out that the issue of entitlement to service connection for a psychiatric disorder other than PTSD has not yet been adjudicated by the RO and that the decision below is limited to the issue of PTSD, only. The Board also points out that the RO denied entitlement to an increased rating for a right foot disability by rating decision dated in May 1996. For the reasons set forth below, the issue of an increased rating for the right foot disability is returned to the RO for appropriate action. The Board notes that the RO issued a rating decision, in May 1996, in which her claim for a total rating for compensation purposes based on individual unemployability by reason of service-connected disabilities was denied. The appellant submitted a Notice of Disagreement (NOD) in December 1996; the RO subsequently issued a Statement of the Case (SOC) in July 1999. Since the case was shortly thereafter transferred to the Board, it is unknown whether the appellant has completed the procedural steps necessary for the appeal of this matter; therefore, the Board has not included it in its consideration of the issues on appeal. The Board also notes that the RO issued a rating decision, dated in April 1999, in which her claim of entitlement to service connection for bilateral vision loss was denied. Since the appellant has apparently neither initiated nor completed the procedural steps necessary for an appeal of this issue, the Board has not included it in its consideration of the issues on appeal. FINDINGS OF FACT 1. In a rating decision issued in April 1995, the RO denied granted entitlement to a compensable evaluation of 10 percent for the appellant's right foot disability. Notice of that action was mailed to the appellant on June 16, 1995. 2. In July 1995, the appellant submitted a NOD with the April 1995 rating decision, alleging that her right foot condition was more disabling. The NOD was submitted on a VA Form 9, Appeal to the Board, and contained a request for a Travel Board hearing at the RO; this request was withdrawn in writing in March 1997. 3. The RO then issued an SOC, in May 1996, on the right foot increased rating issue. The SOC was mailed to the appellant, and to her representative, on May 29, 1996. That document told both the appellant and her representative that they had 60 days in which to respond to the SOC, and noted the need for filing a substantive appeal even if a hearing was requested. 4. No further communication from the appellant's representative or the appellant occurs in the evidence of record until the representative submitted a letter to the RO on December 26, 1996, as well as a written statement from the appellant and some private medical records. This letter indicated disagreement with the action taken by the RO in its May 1996 rating which continued the 10 percent evaluation for the right foot disability and denied three other issues. 5. The appellant did not file a substantive appeal within 60 days of the date of the mailing of the SOC or within the one- year period from the date of the notice of the April 1995 rating action denying her claim listed in #1 above. 6. The evidence does not establish that the appellant currently has any skin disorder that is related to service. The appellant has submitted no evidence showing any continuing or existing dermatologic pathology that is related to service, nor has she submitted any evidence showing a current diagnosis or treatment for any skin disorder. 7. The appellant also has not submitted medical evidence of any nexus between any alleged skin disorder and any disease or injury incurred during service. 8. There is no competent evidence that the appellant currently manifests a clear diagnosis of PTSD attributable to service. 9. The appellant's claim for service connection for PTSD is not plausible. CONCLUSIONS OF LAW 1. The appellant has not perfected an appeal to the April 1995 denial of her claim for a rating in excess of 10 percent for her right foot disability; she did not file a timely substantive appeal or a timely response to the Statement of the Case on this issue - which is a condition predicate for conferring jurisdiction upon the Board. 38 U.S.C.A. §§ 7104, 7105, 7108 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303 (1999). 2. Well-grounded claims of service connection for PTSD and any skin disorder(s) have not been presented and those claims are denied. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304, 4.125(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Timeliness Issue. An appeal consists of a timely filed notice of disagreement, and, after a statement of the case has been furnished, a timely filed substantive appeal. A substantive appeal consists of a properly completed VA Form 1-9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information. The substantive appeal, in pertinent part, must be filed within 60 days from the date of the mailing of the statement of the case or within the remainder of the one-year period from the date of the mailing of the notification of the initial review or determination being appealed, whichever period ends later. An extension of the 60-day period for filing a substantive appeal may be granted for good cause shown. A request for such extension must be made in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Otherwise, the determination becomes final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § §§ 20.202, 20.302, 20.303. See also 38 U.S.C.A. § 7108; YT v. Brown, 9 Vet. App. 195, (1996); Roy v. Brown, 5 Vet. App. 554 (1993); Rowell v. Principi, 4 Vet. App. 9 (1993). In a rating decision dated April 17, 1995, the RO denied granted entitlement to a compensable evaluation of 10 percent for the appellant's right foot disability. Notice of that action was mailed to the appellant on June 16, 1995. In July 1995, the appellant submitted an NOD as to the April 1995 rating decision, alleging that her right foot condition was more disabling. The NOD was submitted on a VA Form 9, Appeal to the Board, and contained a request for a Travel Board hearing at the RO; this request was withdrawn in writing in March 1997. The RO then issued an SOC in May 1996 on the right foot disability issue. The SOC was mailed to the appellant and to her representative on May 29, 1996. In the cover letter sent with the SOC, the appellant and her representative were informed of the need to submit a substantive appeal, and the time limit necessary to do so. That document specifically told both the appellant and her representative that they had 60 days in which to respond to the SOC, and noted the need for filing a substantive appeal even if a hearing was requested. Review of the evidence of record reveals no further communication from the appellant's representative or the appellant until the representative submitted a letter to the RO on December 26, 1996; a written statement from the appellant dated in November 1996, and some private medical records were apparently also submitted at that time. The December 1996 letter indicated disagreement with the action taken by the RO in its May 1996 rating which continued the 10 percent evaluation for the right foot disability and denied three other issues. The appellant and her representative have argued that the appellant should not be penalized for her failure to timely file a substantive appeal because she was hospitalized during the time period in question. Review of the notice letter that accompanied the May 1996 mailing of the SOC indicates that it was clearly stated that the record would be closed if no communication was received within 60 days. Moreover, a precise form is not needed. In this case, there is no evidence of timely intent to appeal following the issuance of the SOC. Thus, the evidence of record discloses no evidence of a timely substantive appeal, nor any correspondence from the appellant or her representative which could be reasonably construed as such dated prior to July 29, 1996, (60 days from May 29, 1996), nor is there any evidence of record of a request for an extension of said 60-day time period after May 29, 1996, and prior to July 29, 1996. While the record does contain a letter from the appellant's representative dated subsequent to the SOC, this letter was submitted almost five months after the July 29, 1996 deadline. The Board notes that the address to which the SOC was mailed was the same address as that on the original claim and the NOD. Moreover, the appellant listed this same address on her VA Form 9 submitted in March 1997. Further, there is nothing to suggest that the initial mailing of the SOC to the appellant, under a cover letter dated May 29, 1996, was returned. The Board also notes that no contention concerning nonreceipt of the May 1996 SOC by the appellant's representative has been advanced. Thus, it appears that the SOC, given the presumption of regularity attaching to the acts of public officers under Ashley v. Derwinski, 2 Vet. App. 62 (1992), was sent to the appellant in May 1996. This presumption of regularity is only overcome by 'clear evidence to the contrary', and no such 'contrary' evidence is shown in this case. In the Board's opinion, there is no clear evidence to the contrary that information was provided to the appellant by the RO in the regular course of business. See Ashley at 65. Furthermore, even if there was evidence of nonreceipt by either the appellant or the appellant's representative, that evidence, standing alone, is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Because the neither the appellant or her representative filed a timely substantive appeal or response to the May 1996 SOC, and pursuant to the statutory provisions of 38 U.S.C.A. § 7105, the Board therefore concludes that a timely appeal to the Board, as described by 38 U.S.C.A § 7105 and 38 C.F.R. § 20.302, was not perfected. YT v. Brown, 9 Vet. App. (1996). See also Roy v. Brown, 5 Vet. App. 554 (1993). Thus, in the absence of a timely perfection of the appeal, the Board is without jurisdiction to consider the underlying claim and the appeal must be dismissed. The Board also points out that no determination is being made on the merits of this claim, since it is not properly before the Board on appeal at this time. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.200; Rowell, 4 Vet. App. 9 (1993); Roy, 5 Vet. App. 554 (1993). II. Service Connection Claims. The threshold question to be answered at the outset of the analysis of any issue is whether the appellant's claim is well-grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court) has said that the statutory "duty to assist" under 38 U.S.C.A. § 5107(a) generally does not arise until there is a well-grounded claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A person who submits a claim has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a). Where such evidence is not submitted, the claim is not well- grounded, and the initial burden placed on the person who submits a claim is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). See also Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinative issue involves medical causation or medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Lay assertions cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible or is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet. App. 19 (1993). It is noted that there are Social Security Administration records that are not on file. Those records, while showing disabling manifestations at the time of the award of disability benefits (in approximately 1986) would not shown the etiology or onset of the pathology necessary for considerations of service connection. Thus, as those records are not indicated for consideration of these issues, the Board concludes that a decision as to these issues can be undertaken without obtaining those records. See e.g. Holoway v. Brown, 4 Vet. App. 454 (1993). Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The appellant contends that she suffered in-service from various dermatologic conditions for which she received treatment and that she continues to suffer from skin disorder problems as a consequence of the alleged in-service pathology. She further contends that she currently suffers from PTSD that is related to service. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of a present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The evidence in this case shows no conclusive evidence of the diagnosed existence of PTSD or any chronic skin disorder and denial of the claims could be warranted on the basis that the claims are not well-grounded because there is no current disability, i.e., there is no diagnosis of PTSD and there is no diagnosis of dermatologic pathology. Review of the service medical records reveals that, on the report of medical history associated with her service entrance examination conducted in August 1974, the appellant reported that she suffered from depression or excessive worry. The accompanying doctor's note indicates that the appellant had had mild depressions that were never treated with medications. However, there is no medical evidence in the rest of the service medical records demonstrating the in- service existence of any PTSD or skin disorder nor is there any evidence showing that PTSD or any dermatologic pathology occurred while the appellant was in service. While service medical records reveal no diagnosis of, or treatment for, either PTSD or any skin disorder, the post- service medical evidence clearly indicates that the appellant has suffered from psychiatric symptomatology for many, many years. The diagnoses over the years repeatedly list the appellant as suffering from major depression- not PTSD. The appellant was hospitalized for psychiatric treatment in October 1986, at Our Lady of Peace Hospital. The medical records from that hospital stay indicate that the appellant related her illness to her job where she had been sexually harassed by two men and one woman and where she was involved in related prolonged litigation. A telephone interview with a close friend of the appellant indicated that the appellant's breakdown was a culmination of events relating to a sexual harassment court case pending between 1981 and 1986. There was no mention of any in-service incident. After a requested consultation, the appellant was noted to have a long history of very dry skin; she was diagnosed with early seborrhea/xerosis. The discharge summary from that hospitalization stated that the appellant's prognosis was guarded, "given her long history of psychiatric problems dated back to her adolescent years according to family members." A private physician's note, dated in September 1991, indicates that the appellant had presented with a request for a prescription for medication for contact dermatitis. The appellant was subsequently hospitalized at Ten Broeck Hospital for psychiatric care in November 1991. The appellant was noted to have a long history of recurrent depression. She complained of constant headaches during this hospitalization, but she did not complain of, or receive treatment for, any skin disorder. The discharge diagnosis was borderline personality disorder with depression. A VA mental health clinic treatment note, dated in July 1994, stated that the appellant was dealing with issues related to her childhood sexual abuse. A treatment report from a private psychologist, dated in June 1995, indicated that the appellant had initially presented, in April 1994, with chronic symptoms of depression. The psychologist opined that the appellant had related several traumatic experiences in which she had been sexually abused and harassed in the Army, which may be related to her present symptomatology. The psychologist diagnosed the appellant with dysthymic disorder; there was no mention of PTSD. The appellant was hospitalized in a Charter Springs Behavioral Health System facility in May 1996. She reported chronic depression all her life and stated that her first psychiatric hospitalization occurred when she was twenty-one years old. The previous medical history indicated a history of hypothyroidism with follow-up by a family doctor, as well as treatment by a cardiologist for chest pains. There was no mention of any diagnosis of, or treatment for, any skin disorder. The Axis I diagnosis listed in the discharge summary was major depression, severe, recurrent, without psychosis. VA mental health clinic notes, dated in 1997 and 1998, indicate that the appellant was diagnosed with major depression. In December 1998, the appellant told her physician that her depression was related to sexual harassment in service; a diagnosis of depression and PTSD was given at that time. The appellant was treated at the Ocala Podiatry center in September 1998. The initial history and physical report reveals a previous medical history of hypothyroid, depression, migraines and anxiety. Once again, there was no mention of any complaints of, or treatment for, any skin disorder. The appellant underwent a VA psychiatric examination in March 1998. The appellant was noted to have first been admitted for psychiatric care in 1972, with a diagnosis of stress. She reported having been beaten with a razor strop by her father and having been abused physically and verbally by her parents. The examiner stated that the appellant did not fit the criteria for PTSD symptomatology, either past or present. An Axis I diagnosis of history of PTSD; major depression with psychotic features was rendered, along with an Axis II diagnosis of paranoid personality disorder. There is no evidence of any in-service PTSD or any skin disorder of any kind. The appellant has not provided any medical evidence, except the statement of her opinions contained in her written statements to establish that she suffers from any skin disorder or from PTSD and her statements are not competent evidence as to medical diagnosis or causation. Moray v. Brown, 5 Vet. App. 463 (1993), Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Furthermore, there is no medical evidence which indicates that the appellant incurred any skin disorder during service or PTSD, and such would be required to make the claims plausible. Grottveit v. Brown, 5 Vet. App. 91 (1993). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. (Citation omitted.) In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). The current medical evidence of record does not demonstrate that the appellant currently suffers from any PTSD or any skin disorder. Thus, the claims for service connection for PTSD and any skin disorder must be denied as not well-grounded. Where there is no medical evidence demonstrating that the claimed disorder currently exists, the claim is not well-grounded. Because the appellant's claims are not well-grounded, the VA is under no duty to assist the appellant in further development of either claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where a claim is not well-grounded it is incomplete, and the VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995). The Board finds in this case that the RO fulfilled its obligation to the appellant in its May 1996 rating decision and in its January 1997 SOC in which the appellant was informed that there was no clinically demonstrated in-service skin disorder or any diagnosis of current PTSD or current skin disorder. Thus, the Board concludes that the notice required in Robinette has been satisfied. Moreover, there is no indication that there are any available records which would make the claims well-grounded. Further as the evidence needed to well-ground these two claims is essentially similar to that needed to allow them, the appellant has been informed as to what is needed. We have reviewed the contentions concerning Manual provisions and development. Appropriate development was conducted, as has been noted. Further development of not-well-grounded claims is precluded. See Morton v. West, 12 Vet. App. 477 (1999). Since the appellant has failed to present competent medical evidence that she currently suffers from PTSD or from any skin disorder, and since she has failed to present competent medical evidence that her claim of PTSD or any skin disorder is plausible, that is, she has failed to present medical evidence that links the alleged PTSD and the alleged skin disorders to service, the claims for service connection for PTSD and for various skin disorders must be denied as not well-grounded. Dean v. Brown, 8 Vet. App. 449 (1995). ORDER A timely substantive appeal to an April 1995 RO determination which denied the appellant's claim of entitlement to an evaluation in excess of 10 percent for a right foot disability was not filed and the appeal as that issue is dismissed. Well-grounded claims for entitlement to service connection for PTSD and various skin disorders not having been submitted, the claims are denied. REMAND As noted above, with respect to the claim for a increased rating for a right foot disability, the RO denied entitlement to an increased rating in excess of 10 percent for that disability by rating decision dated in May 1996. The appellant's representative indicated disagreement with that decision by a letter dated in December 1996. In such cases, there is some authority that the appellate process has commenced and that the veteran is entitled to a statement of the case on the issue. See Pond v. West, 12 Vet App 341 (1999); Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, while the Board does not have jurisdiction to decide the issue of an increased rating for a right foot disability on the merits under the aforementioned guidance, the issue of an increased rating for the right foot disability is to be remanded to the RO for additional action. In view of the foregoing, this case is REMANDED for the following actions: 1. The RO should, in accordance with applicable procedures, consider any pertinent evidence obtained since the Notice of Disagreement, and as appropriate issue a Statement of the Case on the right foot increased rating issue, if the matter remains denied. 2. The RO should, with the promulgation of the Statement of the Case on the increased evaluation for a right foot disability, inform the appellant that to complete the appellate process she should complete a timely substantive appeal and forward it to the RO. 3. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures. No action by the appellant is required until she receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals