Citation Nr: 1217167	
Decision Date: 05/11/12    Archive Date: 05/24/12

DOCKET NO.  07-40 195	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an effective date earlier than October 31, 2011, for the assignment of a total disability rating based on individual unemployability (TDIU).  


ATTORNEY FOR THE BOARD

C. Bosely, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1975 to December 1978. 

This matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from December 1975 to December 1978.

2.  The Board does not have jurisdiction to address the issue of entitlement to an effective date earlier than October 31, 2011, for the award of a TDIU.


CONCLUSION OF LAW

The criteria for dismissal of an appeal have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A claimant and his representative will be notified in writing of any decision affecting the payment of benefits or granting relief.  All such notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing; the right to initiate an appeal by filing a Notice of Disagreement (NOD) which will entitle the individual to a Statement of the Case (SOC) for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected.  Further, such notice that VA has denied a benefit sought will include a summary of the evidence considered.  38 C.F.R. § 3.103(f).  

An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.

An NOD is a written communication from a claimant or from his or her representative expressing (1) dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and (2) a desire to contest the result.  While special wording is not required, the NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201.  An NOD must be filed within one year from the date that that the RO mailed notice of the rating decision.  Otherwise, that determination becomes final.  See 38 C.F.R. § 20.302(a).  A timely filed NOD places the issue(s) into appellate status, which requires the issuance of an SOC.  See 38 C.F.R. §§ 3.103(f), 19.26; see also, e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

A substantive appeal must then be filed within 60 days from the date the RO mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed).  38 C.F.R. §§ 20.200, 20.300, 20.302.  Otherwise, the rating decision becomes final.  See 38 C.F.R. § 20.1103.  The filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board's jurisdiction.  Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal.  Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2011).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, the RO issued a rating decision in December 2011 granting a TDIU effective from October 31, 2011.  On the next day, the RO issued a Supplemental Statement of the Case (SSOC) adjudicating the issue of whether an effective date earlier than October 31, 2011, is assignable for the award of a TDIU.  The Veteran, however, has not filed a second notice of disagreement (NOD) following the December 2011 rating decision disagreeing with the effective date assigned by the RO therein.  Thus, an appeal has not been initiated, and the Board does not have jurisdiction to review the merits of the claim.  See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim of service connection is granted during the pendency of an appeal, a second NOD must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability).

The Board emphasizes that although the issue is not in appellate status at present the Veteran  may still appeal the issue by filing an NOD within the remainder of the one-year period following notice of the December 2011 rating decision.  See 38 C.F.R. § 20.302(a).

At present, however, the Board does not have jurisdiction to address the issue, and it is dismissed.  


ORDER

The appeal is dismissed.




		
TARA L. REYNOLDS
	Acting Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs