Citation Nr: 0003492 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-13 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a skin disability, claimed as chloracne, to include as due to herbicide exposure. 2. Whether a claim received in July 1969 for service connection for a back disability remains open. 3. Entitlement to an increased disability for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 4. Entitlement to an increased disability for a shell fragment wound, right thigh, currently evaluated as 10 percent disabling. 5. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) by reason of service-connected disabilities REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and wife of Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from March 1967 to January 1969. This case comes before the Board of Veterans' Appeals (Board) by means of a September 1997 rating decision rendered by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein increased disability evaluations were denied for PTSD and a shell fragment wound, right thigh, and wherein entitlement to TDIU was denied. The veteran also appeals a May 1998 letter from the RO wherein it was determined that a prior unappealed denial of service connection for a back disability is final and an April 1999 rating action wherein service connection for chloracne was denied. The issues of entitlement to increased ratings for PTSD and a shell fragment wound, right thigh, along with entitlement to TDIU and service connection for chloracne require further development. (See REMAND, below) FINDINGS OF FACT 1. In July 1969, the RO denied service connection for a back disability. 2. A September 1982 rating action confirmed and continued the July 1969 denial of the veteran's claim for service connection for a back disability. 3. In October 1982, the veteran was notified of the denial of his claim for service connection for a back disability and was furnished with his procedural and appellate rights. 4. A notice of disagreement of the RO decision was not received by October 1983. CONCLUSION OF LAW A timely notice of disagreement of the July 1969 rating action and the subsequent rating action of September 1982 has not been received. 38 U.S.C.A. § 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.201, 20.302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under VA regulations, except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement (NOD) with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals. 38 U.S.C.A. § 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 20.302 (1999). With respect to his claim for service connection for a back disability, a rating decision was rendered in July 1969 that denied service connection for a lumbar spine disability. The veteran contends that he was not notified of this decision and that his claim, therefore, remains open. However, the Board notes that in August 1982, the veteran sought to reopen his claim for service connection for a "lower back" disability. By means of a September 1982 rating action, service connection for a lumbar spine disability was denied. The veteran was notified of this continued denial of service connection and furnished with a copy of his procedural and appellate rights in October 1982. Accordingly, the veteran had until October 1983 (one year following notification) to file an NOD of the September 1982 action. The regulations provide that 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 notice of disagreement. While special wording is not required, the Notice of Disagreement (NOD) must be in terms that can reasonably be construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (1999). An NOD postmarked before the expiration of the one year period will be accepted as timely filed. If no NOD is filed within the prescribed period, the action or determination by the agency of original jurisdiction shall become final and the claim will not thereafter be reopened or allowed, except as may be provided by regulations not inconsistent with Title 38, United States Code. 38 U.S.C.A. § 7105 (b)(1)(c) (West 1991 & Supp. 1999). A review of the veteran's claims folder does not show that a timely NOD of the either the July 1969 rating action or the September 1982 rating action was received. In particular, the evidence does not show that a NOD was received prior within one year of the veteran's notice of the denial of his claim, i.e. prior to October 1983. Accordingly, the September 1982 decision became final in October 1983. 38 C.F.R. §§ 3.104, 20.302 (1999). ORDER The September 1982 rating decision is final with respect to the veteran's claim for service connection for a back disability. REMAND A review of the claims folder indicates that service connection for chloracne was denied by the RO by means of an April 1999 rating action. The veteran was notified of the denial at that time. Subsequent to this denial, the veteran appeared before the undersigned Member of the Board sitting at the RO in October 1999. As stated previously, the regulations provide that 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 notice of disagreement. At the October 1999 hearing, the veteran expressed his disagreement with the denial of his claim for service connection for chloracne. Subsequent to the October 1999 hearing, the veteran's testimony and contentions were memorialized in a transcript of the hearing. The Board will construe his testimony and the transcript of the hearing as an NOD to the April 1999 rating action. See 38 C.F.R. § 20.201 (1999). The October 1999 NOD initiated review by the Board of the RO's denial of the claim, and the issue must be remanded to have the RO issue a Statement of the Case regarding the claim. Manlincon v. West, 12 Vet. App. 238 (1999) Additionally, the United States Court of Appeals for Veterans Claims (Court), formerly the United States Court of Veterans Appeals, has held that VA has a duty to assist veterans in the development of facts pertinent to their well grounded claims, under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) and 38 C.F.R. § 3.103(a) (1999), which requires that VA accomplish additional development of the evidence if the record currently before it is inadequate. Littke v. Derwinski, 1 Vet.App. 90 (1990). A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claims for increased disability ratings as well as his claim for TDIU are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); that is, he has presented claims that are plausible. It is noted that the veteran indicated at the October 1999 Board hearing that he is currently in receipt of disability benefits from the Social Security Administration. However, it appears as though the medical records relied upon by the Social Security Administration are not associated with the veteran's claims folder. The Board notes that VA's duty to assist veterans in developing facts pertinent to their claims includes requesting information from other federal departments or agencies, and where VA has notice that the veteran is receiving Social Security Administration disability benefits, the records relied upon in making that determination are pertinent to his VA claim and must be associated with his claims folder. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, the Board finds that a remand is in order to obtain the veteran's records from the Social Security Administration. Accordingly, the case is REMANDED for the following development: 1. With respect to a claim for service connection for chloracne, the RO should furnish to the veteran and his representative a Statement of the Case summarizing the law and evidence relied on in the determination of this claim. The RO should also inform the veteran of his appellate rights with respect to this claim. 2. The RO should ask the veteran to supply the names and addresses of all doctors and medical providers who provided treatment for his PTSD and right thigh disability since July 1999. After obtaining the appropriate releases, the RO should obtain the medical records from those medical providers. The RO should also seek to obtain medical records from the Social Security Administration relating to the veteran's application for and award of Social Security benefits. 3. Following completion of the foregoing, the RO should review the issues on appeal. If the decision remains adverse to the veteran, in whole or in part, he and his representative should be furnished a supplemental statement of the case and afforded the applicable period of time within which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board. The Board expresses its gratitude in advance to the RO for assisting in the requested development. 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). The purpose of this REMAND is to obtain additional evidence. No inference should be drawn regarding the final disposition of this claim. The veteran is hereby informed that any failure to cooperate with the requested development may have an adverse effect upon his claim. MARK W. GREENSTREET Member, Board of Veterans' Appeals