Ephraim v. Brown , 1993 U.S. Vet. App. LEXIS 465 ( 1993 )

HOLDAWAY, Judge:

In a February 24, 1993, order, the Court stayed appellant’s claim pending a decision in Hamilton v. Brown, 4 Vet.App. 528 (1993) (en banc). The question presented is whether a valid Notice of Disagreement (NOD), filed on or after November 18, 1988, is present in this case.

BACKGROUND

In June 1986, the Veterans’ Administration (now the Department of Veterans Affairs) (VA) Regional Office (RO) reduced appellant’s evaluation for service-connected depressive neurosis from 50% to 10%. Consequently, the RO also discontinued entitlement to a total evaluation due to individual unemployability. In May 1987, appellant filed an NOD. In October 1987, he filed a VA Form 1-9 appealing this decision to the Board of Veterans’ Appeals (BVA or Board). In a May 1988 rating decision, the RO continued the 10% disability rating for service-connected depressive neurosis.

On July 24, 1989, the Board remanded appellant’s claim. The RO was directed to consider appellant’s claim under revised diagnostic criteria for neuropsychiatric disorders, and to return the claim to the Board if the benefit sought continued to be denied. In an August 1989 rating decision, the RO determined that the evaluation of appellant’s depressive neurosis under the revised criteria did not result in a change from its previous decision. Subsequently, appellant remained ineligible for total disability based on individual unemployability.

In September 1989, appellant disagreed with this rating and requested reinstatement of his previous rating. In defense of the previous rating, he claimed to have, inter alia, a “nervous disorder with consideration for P.T.S.D. [post-traumatic stress disorder].” On March 8, 1990, the RO issued a rating decision on appellant’s claim. After a review of the record, the RO determined that “service connection is established for post traumatic stress disorder with depressive neurosis evaluated 10%.” In May 1990, appellant filed a statement expressing disagreement with the March 1990 rating decision. In an October 1990 personal hearing, he testified at length (as he had previously) regarding the severity of his mental condition and linked it in part to combat experiences in Vietnam. This is the context within which PTSD was raised as an issue in this case. The BVA denied appellant’s claim for an increased evaluation for service-connected depressive neurosis with PTSD, and appellant’s claim for entitlement to a total disability rating based upon individual unemployability.

ANALYSIS

The narrow question now before the Court is whether by raising the issue of PTSD in connection with the previously reduced rating for depressive neurosis, the appellant raised a separate and distinct disability claim that had not been previously considered. We hold he did not. It is clear from both the wording of his disagreement as well as the testimony at two hearings that the appellant’s “claim” of PTSD was inextricably intertwined with the rated depressive neurosis condition. That too was the understanding of the RO, as evidenced by the rating wherein the two conditions were coupled. In short, appellant injected, and intended to inject, the PTSD issue simply as another facet, of the general question concerning the degree of disability he was suffering from his mental disability. He raised it as a defense to the reduction of his mental disability rating. The May 1990 expression of disagreement was, therefore, merely a disagreement with a subsequent readjudication of a remanded claim. See Calvert v. Brown, 5 Vet.App. 461 (1993) (per curiam order). In accordance with Hamilton, supra, we are constrained to hold that the only NOD filed was the NOD filed in May 1987 protesting the reduction of benefits stemming from the appellant’s mental disability. The majority takes note of our colleague’s dissent. His analysis, try as it might to show otherwise, establishes conclusively that the PTSD issue was part and parcel of the readjudication of the remanded claim.

In Hamilton, the Court held that “[t]here can be only one valid NOD as to a particular claim, extending to all subsequent RO and BYA adjudications on the same claim_ [WJhere the BVA remands to an RO for further development and readjudication ... an expression of disagreement with a subsequent RO read-judication on remand cannot be an NOD.” Hamilton, 4 Vet.App. at 538. The only exception is where, on remand of one claim, a separate and distinct claim is raised that was not previously adjudicated. There can be an NOD as to the new claim, and if subsequent to November 18, 1988, it will import jurisdiction to the Court as to that claim only. This NOD could not, of course, “revive” jurisdiction as to the initial, unrelated claim if the NOD as to that claim preceded the November 18, 1988, date. (This is the situation in Contreras v. Brown, 4 Vet.App. 528, 541-42 (1993) (consolidated with Hamilton)). Appellant concedes that, in accordance with the Hamilton analysis, there is no jurisdiction-creating NOD as to his claim for a total disability. However, he contends that his claim of service connection for PTSD was a new claim, and that his May 1990 expression of disagreement is, therefore, a valid NOD as to that claim. The expression of disagreement that raised the issue of PTSD was a disagreement with a rating that was rendered pursuant to a remand for readjudication where the RO had previously reduced benefits for a disability stemming from a service-connected “depressive neurosis.” The NOD filed as to that reduction was filed in May 1987 and is clearly, per Hamilton, not an NOD that would .give this Court jurisdiction.

CONCLUSION

The appeal is DISMISSED for lack of jurisdiction.