Citation Nr: 0000477 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 95-42 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability rating for post traumatic stress disorder, currently rated as 30 percent disabling. 2. Entitlement to a total disability rating for compensation purposes due to individual unemployability. ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty from April 1964 to May 1984. This case arises from rating decisions of the Montgomery, Alabama, Regional Office. In October 1997, the Board of Veterans' Appeals (Board) rendered a decision on a claim for an increased rating for a right hip disability. The Board's decision also indicated that the veteran had raised the issues of entitlement to an increased rating for post traumatic stress disorder (PTSD) and entitlement to a total disability rating due to individual unemployability. The Board's decision listed these issues on the title page of the decision and remanded the two issues to the RO for adjudication. The case was returned to the Board for consideration. In a September 1999 decision, the Board remanded this case to the RO. The Board's decision advised the veteran that the Board intended to dismiss his appeal of the issues listed on the title page of this decision since it did not have jurisdiction to consider them. The veteran was afforded a period of 60 days in which to submit additional evidence or argument to the RO related to the proposed dismissals, however, no additional evidence or argument was received. The case has been returned to the Board for further consideration. FINDINGS OF FACT 1. An October 1996 rating decision granted service connection for post traumatic stress disorder (PTSD). 2. A notice of disagreement was not filed with the office making the initial PTSD rating determination within one year of notice of the decision. 3. A rating decision in January 1999 addressed the issues of an increased disability rating for PTSD and a total disability rating due to individual unemployability. 4. A notice of disagreement with the January 1999 rating decision has not been received. CONCLUSIONS OF LAW 1. The appeal for entitlement to an increased disability rating for PTSD has not been perfected. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.300, 20.302 (1999). 2. The appeal for entitlement to a total disability rating due to individual unemployability has not been perfected. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.300, 20.302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be resolved is whether the veteran has perfected an appeal on the issues listed above. If an appeal has not been perfected, the Board does not have jurisdiction to consider the issues and must dismiss the appeal. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). A notice of disagreement shall be filed within one year from the date of mailing notice of the result of the initial review or determination. 38 U.S.C.A. § 7105(b) (West 1991); 38 C.F.R. § 302(a) (1999). The notice of disagreement and substantive appeal must be filed with the Department of Veterans Affairs (VA) office from which the claimant received notice of the determination being appealed. 38 U.S.C.A. § 7105(b) (West 1991); 38 C.F.R. § 20.300 (1999). Increased rating for post traumatic stress disorder The veteran had originally perfected an appeal from a May 1995 rating decision the issue of service connection for post traumatic stress disorder (PTSD). An October 1996 rating decision granted service connection for PTSD with a 30 percent disability rating assigned. This was a grant of the benefit sought, i.e. service connection for PTSD. The granting of the benefit that had been sought on appeal resolved the disagreement. Accordingly, the Board does not have the authority to further consider the veteran's appeal regarding his PTSD since the disagreement was with the denial of service connection. Since the benefit sought on appeal has been granted, there are no further alleged errors of law or fact to be considered on appeal. 38 U.S.C.A. § 7105(d) (West 1991); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), Holland v. Brown, 9 Vet. App. 324 (1996), rev'd sub nom. Holland v. Gober, No. 97-7045 (Fed. Cir. July 29, 1997). It is noted that in the representative's August 1997 presentation at the Board, the issue of an increased rating for PTSD was raised. However, a notice of disagreement is to be filed with the office from which the veteran received notice of the decision which is the RO. 38 C.F.R. § 20.300 (1999). Therefore, the representative's presentation does not constitute a notice of disagreement. While the October 1997 decision by the Board listed the issue of an increased disability rating for PTSD, the Board's jurisdiction is limited to issues where an appeal has been perfected. The October 1997 Board decision did refer the issue of an increased rating for PTSD to the RO. The RO addressed this issue in a January 1999 rating decision and the veteran was advised of this decision in a January 1999 letter. A timely notice of disagreement has not been received following that decision even after the Board's September 1999 decision advised the veteran he had one year in which to file a notice of disagreement with that decision. Additionally, while a January 1999 supplemental statement of the case listed the issue of an increased rating for PTSD, this does not confer jurisdiction upon the Board to address the issue. Since a notice of disagreement has not been filed, the Board does not have jurisdiction to consider an appeal for an increased disability rating for PTSD. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). Based on the above, the veteran's claim for an increased disability rating for PTSD is dismissed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200, 20.300 (1999). Increased rating due to individual unemployability The Board's October 1997 decision remanded the issue of a total disability rating due to individual unemployability to the RO for consideration. This issue was ultimately addressed in a January 1999 rating decision. The veteran was advised of this decision in a January 1999 letter to him. However, a notice of disagreement has never been received with regard to this issue. While the October 1997 decision by the Board listed the issue of an increased disability rating for PTSD, the Board's jurisdiction is limited to issues where an appeal has been perfected. The veteran was advised of the RO's decision in a January 1999 letter to him. A timely notice of disagreement has not been received following that decision, even after the Board's September 1999 decision advised the veteran he had one year in which to file a notice of disagreement with that decision. Additionally, while a January 1999 supplemental statement of the case listed the issue of a total disability rating due to individual unemployability, this does not confer jurisdiction upon the Board to address the issue. Since a notice of disagreement has not been filed, the Board does not have jurisdiction to consider an appeal for a total disability rating due to individual unemployability. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999). Based on the above, the veteran's claim for a total disability rating due to individual unemployability is dismissed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200, 20.300 (1999). ORDER 1. The appeal for an increased disability rating for PTSD is dismissed. 2. The appeal for a total disability rating due to individual unemployability is dismissed. JACK W. BLASINGAME Member, Board of Veterans' Appeals