Citation Nr: 1319116 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 12-31 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether a timely notice of disagreement was filed with respect to a May 2009 rating decision that denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO). The Appellant participated in a hearing before the undersigned in January 2013, and a transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In May 2009, the RO issued a rating decision that denied entitlement to a one-time payment from the FVEC Fund. 2. In January 2010, the Appellant submitted a timely notice of disagreement to the May 2009 rating decision. 3. In February 2010, the Appellant withdrew his January 2010 notice of disagreement. 4. The Appellant did not thereafter submit any document that could reasonably be construed as an notice of disagreement within one year of the May 2009 rating decision. CONCLUSION OF LAW The Appellant did not submit a timely notice of disagreement to the May 2009 decision, and the May 2009 decision is final. 38 U.S.C.A. §§ 7105(b)(1), (c) (West 2002 & Supp 2012); 38 C.F.R. §§ 20.302(a), 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that because the claim at issue is limited to statutory interpretation, the notice provisions do not apply in this case. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002). VA is not required to provide notice of the information and evidence necessary to substantiate a claim when that claim cannot be substantiated because either there is no legal basis for the claim or undisputed facts render the claimant ineligible for the claimed benefit. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). The Board finds no prejudice toward the Appellant in proceeding with the adjudication of his claim. Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is issued to the claimant by VA. 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2012). Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202 (2012). With respect to a notice of disagreement, a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result, will constitute a notice of disagreement. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2012). While special wording is not required, the notice of disagreement must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2012); Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written must be considered in determining whether such communication constitutes an notice of disagreement. Jarvis v. West, 12 Vet. App. 559 (1999). All communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). A claimant or his representative must file a notice of disagreement with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a) (2012). If a notice of disagreement is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012). An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C.A. § 7105(c) (West 2002). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely notice of disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416 (1994). The issue of whether a notice of disagreement has been filed on time is appealable. If the claimant or his representative protests an adverse determination made by the RO with respect to the timely filing of a notice of disagreement, the claimant will be furnished a statement of the case on the issue of whether the notice of disagreement was timely. 38 C.F.R. §§ 19.34, 20.101(c) (2012). This matter arises from a May 2009 rating decision that denied a claim of entitlement to a one-time payment from the FVEC fund. In January 2010, the Appellant submitted a timely notice of disagreement to that rating decision. However, in February 2010 the Appellant submitted a statement that he no longer wished to pursue his claim, and he requested that his case be closed. The Appellant's February 2020 submission effectively withdrew the Appellant's January 2010 notice of disagreement. That statement included the Appellant's name, the claim number, and a statement that the appeal was withdrawn. 38 C.F.R. § 20.204(b) (2012). In April 2011, more than one year following the May 2009 rating decision, the Appellant again submitted a notice of disagreement as to the May 2009 rating decision. That notice of disagreement was not timely filed because it was received more than one year following the May 2009 decision. Therefore, that communication cannot be accepted as a timely notice of disagreement, and thus the May 2009 rating decision is final. 38 C.F.R. §§ 20.204(c), 20.302 (2012). Furthermore, subsequent to the withdrawal of the notice of disagreement in January 2010, and prior to the expiration of the one year period for filing a notice of disagreement, VA did not received any other communication from the Appellant that would constitute a timely notice of disagreement. Accordingly, without the submission of a timely notice of disagreement following the proper withdrawal of a notice of disagreement, the Board does not have jurisdiction to consider the claim for entitlement to a one-time payment from the FVEC Fund. Therefore, the appeal is denied. ORDER As the Appellant did not file a timely notice of disagreement, following withdrawal of a notice of disagreement, to a May 2009 rating decision that denied entitlement to a one-time payment from the FVEC Fund, the claim is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs