Citation Nr: 0805945 Decision Date: 02/21/08 Archive Date: 03/03/08 DOCKET NO. 06-24 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether a Notice of Disagreement (NOD) to a January 2003 denial of service connection for the cause of the veteran's death was timely. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran, the deceased husband of the appellant, had active service from September 1946 to April 1947. He died in October 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. The appellant was notified by RO letter of January 27, 2003, that her claim for service connection for the cause of the veteran's death was denied. 2. The appellant filed a NOD to the January 2003 rating decision in March 2006, more than one year after being notified of the January 2003 decision. 3. Good cause for extending the time limit to file a NOD to the January 2003 decision has not been demonstrated. CONCLUSION OF LAW A timely appeal to a January 2003 denial of service connection for the cause of the veteran's death was not received and, as a result, an appeal was not initiated from that decision in a timely manner and that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.109(b), 19.34, 20.200, 20.201, 20.202, 20.302, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA describes VA's duties to notify and to assist claimants in substantiating VA claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R § 3.159 (2007). Under 38 U.S.C.A. § 5103(a) VA must notify a claimant of the information and evidence needed to substantiate a claim, which information and evidence VA will obtain, and which the claimant must provide. VA must request any evidence in a claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159. But, VA is not required to provide a predecisional adjudication of what evidence is needed to grant a claim because "the duty to notify deals with evidence gathering, not analysis of already gathered evidence" nor is VA required to provide notice "upon receipt of every piece of evidence or information." Locklear v. Nicholson, 20 Vet. App. 410, 415 (2006). In this case, VCAA notice is not required because the issue presented is one in which the facts are not in dispute and, so, is solely one of statutory interpretation and cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. Denied, 537 U.S. 821 (2002). A review of the record discloses that the veteran's death certificate shows that he died in October 1999. At the time of his death he was not service-connected for any disability and did not have any pending claim for VA benefits. The appellant's claim for service connection for the cause of the veteran's death was received in July 2002. The appellant was provided notification of the VCAA in September 2002. After the RO received private clinical records, the appellant was notified by RO letter of January 27, 2003, sent to her most recent address of record, that her claim for service connection for the cause of the veteran's death was denied. The appellant did not provide any additional evidence or a response to the RO's January 23, 2003 letter, and in a February 2006 letter she requested a copy of the last RO denial letter because she had misplaced the original due to her being "over worried" that the RO would deny her claim. She now believed that she had to pursue her claim and felt that she was entitled to the death benefits. In March 2006 the RO provided the appellant with a copy of the last decision in her claim file. On March 16, 2006, a "Notice of Disagreement" was received from the appellant disagreeing with the January 2003 denial of service connection for the cause of the veteran's death. Later in March 2006, the RO determined that the NOD received earlier in March 2006, to the January 2003 RO denial, was not timely received and could not be accepted because it was not timely. In April 2006 the appellant filed an NOD to the March 2006 determination, stating that she had misplaced the original January 27, 2003, RO notification letter because she was "over worried" about the possibility that her claim might be denied. She now believed that she had to fight and was entitled to the death benefits. Following the issuance of a Statement of the Case (SOC) in June 2006 addressing the timeliness of the March 2006, the appellant perfected the appeal from the March 2006 RO determination by filing VA Form 9 in July 2006. Under VA laws and regulations, 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; 38 C.F.R. § 20.200. 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 must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. A claimant, or his or her representative, must file a Notice of Disagreement 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. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in 38 C.F.R. § 20.302. 38 C.F.R. § 20.1103. Whether a Notice of Disagreement or Substantive Appeal has been filed on time is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the agency of original jurisdiction with respect to timely filing of the Notice of Disagreement or Substantive Appeal, the claimant will be furnished a Statement of the Case. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.34. Lastly, 38 U.S.C.A. § 7105(c) provides that "[i]f no [NOD] is filed in accordance with this chapter within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title." Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues. 38 C.F.R. § 3.109(b). Here, the appellant does not contend that she did not receive the January 2003 RO letter notifying her of the denial of her claim for the cause of the veteran's death and she does not contend that the NOD that was subsequently file in March 2006 was received within one year of January 2003 notification. It appears that the appellant is seeking, under 38 C.F.R. § 3.109(b), an extension of time within which to file an NOD. She attempts to establish good cause for not having filed the NOD in a timely manner by arguing that she misplaced the notification letter because she was upset and worried that her claim might be denied. However, under 38 C.F.R. § 3.109(b) or under the application of the doctrine of equitable tolling, the appellant does not argue that she was in any way mislead by VA as to the requirement for filing a timely NOD or that she was in any manner incapacitated, e.g., by mental illness or debilitation, such as to impeded her from filing a timely NOD. Rather, she argues that she had committed no more than simple neglect in not filing a timely NOD. In McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005) it was held that: Therefore, the Court will adopt a three-part test to determine whether equitable tolling based on extraordinary circumstances is appropriate. First, the extraordinary circumstance must be beyond the appellant's control. Second, the appellant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances. See Barrett, 363 F.3d at 1321; Valverde, 224 F.3d at 134 ("If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing."). Third, the appellant must exercise "due diligence" in preserving his appellate rights, meaning that a reasonably diligent appellant, under the same circumstances, would not have filed his appeal within the 120-day judicial-appeal period. See Irwin, 498 U.S. at 96; Sandvik, 177 F.3d at 1271-72. This standard, though not requiring impossibility, ensures that the exception (equitable tolling) does not swallow the 120-day judicial-appeal period rule set forth in 38 U.S.C. § 7266(a). McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005). Using this standard for the application of equitable tolling, the Board observes that the appellant has not alleged or shown that her failure to timely file the NOD in this case was due to extraordinary circumstances beyond her control or that the untimely filing was a direct result of the extraordinary circumstances. Even assuming the application of the doctrine of equitable tolling were applicable in this case, the appellant does not meet the criteria for it's application and, moreover, having failed to establish even good cause for not having filed a timely NOD, 38 C.F.R. § 3.109(b) also not provide a basis for relief. Accordingly, the Board must find that there was no reasonable excuse for not having timely filed an NOD to the January 2003 denial of service connection for the cause of the veteran's death and, so, the January 2003 rating decision is final. Since, for these reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The March 2006 NOD to a January 2003 denial of service connection for the cause of the veteran's death was not timely, and the appeal is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs