Citation Nr: 1318411 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-44 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether a notice of disagreement was timely filed following a February 2008 rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from December 1988 to April 1996. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that a notice of disagreement (hereinafter: NOD) with a February 2008 rating decision was untimely. In his substantive appeal, the Veteran requested a hearing before a Veterans law Judge, but in February 2010 his representative informed the Board that the Veteran no longer desired a Board hearing. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. On February 22, 2008, the RO sent a letter to the Veteran informing him of its February 2008 rating decision and of his appellate rights with respect to the decision. 2. An NOD with the February 2008 rating decision was received at the RO on March 16, 2009. CONCLUSION OF LAW The NOD with the February 2008 rating decision was untimely. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.300, 20.301, 20.302, 20.305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION An NOD shall be filed within one year from the date of the mailing of notice of the determination by the agency of original jurisdiction. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a). Such notice must be in writing and be filed with the activity which entered the determination. 38 C.F.R. § 7105(b)(1); 38 C.F.R. §§ 20.201, 20.300. An NOD postmarked before the expiration of the one-year period will be accepted as timely filed. 38 U.S.C.A. § 7105(b)(1). When these rules require that any document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. In calculating the 5-day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. § 20.305(a). In computing the time limit for filing a document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(b). In a February 2008 rating decision, the RO decided various claims. The RO sent a letter to the Veteran on February 22, 2008. The letter informed the Veteran of the rating decision and of his appellate rights with respect to the decision. The letter also provided instructions for appealing the decision. The letter was sent to the Veteran's correct address. The Veteran filed a hand-written NOD with the February 2008 rating decision. He signed and dated the NOD "2/21/09." The NOD bears a "VARO Mail Unit" date-stamp reflecting receipt on "March 16, 2009." The Veteran contends that he had mailed the NOD on February 21, 2009, and the postmark on that correspondence should verify this date of mailing. Between the date of issue, on February 22, 2008, of RO rating decision, and the date of receipt of the NOD on March 16, 2009, the RO received no other correspondence or submission from the Veteran. While the Veteran has argued that his NOD was (or should have been) timely postmarked, the postmark is not of record. As set forth above, a VA regulation clearly mandates that where the postmark of the NOD is not of record, then 5 business days, and only 5 business days, will be granted in addition to the one-year time limit. This 5-day period does not include Saturday, Sunday, or legal holidays. 38 C.F.R. § 20.305(a), (b). The Board has no authority to set aside this pertinent VA regulation concerning lack of evidence of the postmark. The February 22, 2009, one-year time limit for filing an NOD fell on Sunday. Thus, that one-year filing deadline moved to Monday, February 23, 2009. In calculating the 5 presumptive days from then there was one more Saturday and one more Sunday, but no legal holidays. Adding all of these days, because the postmark is not of record, and considering that 2009 was not a leap-year, it appears that the NOD would have remained timely if received at the RO on or prior to Monday, March 2, 2009. Thus, considering all of the rules for computing timeliness of an NOD, as set forth above, the NOD with the February 2009 RO rating decision remains untimely filed. The Veteran's representative recently argued that a presumption in favor of the Veteran exists. The representative argued that where the envelope that contains the NOD is not of record, then VA must prove by "clear and unmistakable evidence" that the envelope was not, in fact, postmarked on February 22, 2008. The representative provided no legal authority for such a presumption. Therefore, the Board must soundly reject this contention, as 38 C.F.R. § 20.305 clearly states that where the postmark is not of record, then VA must presume it was mailed 5-days prior to the date of receipt. No other presumption applies to this situation. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1991). ORDER The Board having determined that a notice of disagreement with a February 2008 rating decision was not timely filed, the benefit sought on appeal is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs