Citation Nr: 1320612 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 12-32 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant filed a timely Notice of Disagreement (NOD) with a September 2010 decision that denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION Please note 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). This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In the April 2012 decision, the RO determined that the appellant did not file a timely NOD with the initial decision in September 2010 that denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant appealed the issue of whether he filed at timely NOD to the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The RO denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund in a September 2010 decision. Although notified of the decision in September 2010, the appellant did not initiate an appeal within one year of the notice letter. 2. The first evidence in the claims folder of statements from the appellant which may be reasonably construed as a notice of disagreements were received by the RO in April 2012, beyond the one-year time period to appeal. CONCLUSIONS OF LAW 1. The September 2010 decision denying entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012). 2. The requirements are not met for a timely NOD within one year of the September 2010 decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.109(b), 19.34, 20.101(c), 20.200, 20.201, 20.300, 20.302(a), 20.305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). However, with regard to the appellant's appeal of the timeliness of a NOD, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). 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); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). That is, the U.S. Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence, as is the case here. Dela Cruz, 15 Vet. App. at 149 (2001). Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist. In any event, all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The appellant has been provided ample opportunity to present evidence and argument in support of his claim. Timeliness of NOD Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after a Statement of the Case (SOC) is furnished to the claimant. In essence, the following sequence is required: there must be a decision by the RO, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant, and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal. See 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. With respect to a NOD, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute a NOD. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD 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; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). "[T]he actual wording of the communication and the context in which it was written" must be considered in determining whether it constitutes an NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). A broad NOD may confer appellate jurisdiction over all the issues adjudicated in a rating decision. A "narrow or specific NOD," by comparison, may limit appellate jurisdiction to the issue(s) specifically identified in the NOD. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). All communications should be liberally construed. See id. at 561-62. The Court has made clear that the VA adjudication process "'is not meant to be a trap for the unwary . . . a stratagem to deny compensation [nor] a minefield" for claimants. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). See also Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002) (assuming that the Veteran desired appellate review, meeting the requirement of section 38 C.F.R. § 20.201 was not an onerous task). A claimant or his or her representative must file a NOD 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). If a NOD 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 NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C.A. § 7105(c). The date of mailing of the letter of notification from the RO 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 C.F.R. § 20.302(a). An NOD postmarked prior to expiration of the one year period will be accepted as having been timely filed. 38 U.S.C.A. § 7105(b) (1); 38 C.F.R. § 20.305(a). 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. 38 C.F.R. § 20.305(a). The Board may implicitly or explicitly waive the issue of the timeliness of a Substantive Appeal. A timely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 USCA §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Whether a NOD has been filed on time is an appealable issue. If the claimant or his or her representative protests an adverse determination made by the RO with respect to timely filing of the NOD, the claimant will be furnished a SOC on the issue of whether the NOD was timely. 38 C.F.R. §§ 19.34, 20.101(c). If there is a failure to comply with the above-cited law and regulations governing appellate procedure, it is incumbent on the Board to reject the application for review on appeal. See 38 U.S.C.A. §§ 7105(d) (5), 7108 (West 2002); see also Marsh v. West, 11 Vet. App. 468, 470-72 (1998) [the Board has the jurisdiction - indeed, the obligation - to assess its jurisdiction]. Analysis The RO issued a September 2010 decision that denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. The appellant was notified he had one year from the date of the notice letter to appeal the decision. The appellant admits that his NOD was untimely, but requests that VA reconsider. Upon review of the evidence, the Board finds that the appellant failed to file a timely NOD with the RO's September 2010 decision. The earliest date that an NOD was received by the RO from the appellant is April 2012, well beyond the one-year time period for filing. See 38 C.F.R. § 20.302(a). Therefore, these three statements were untimely. Id. Pursuant to 38 C.F.R. § 3.109 (2012), time limits for filing to challenge an adverse VA decision may be extended in some cases on a showing of "good cause." Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action 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. There is no legal entitlement to an extension of time; rather, 38 C.F.R. § 3.109(b) leaves the decision to the sole discretion of VA. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). The appellant has not presented "good cause" as to why he did not file his NOD within one year by September 9, 2011. There is a presumption of regularity of government process that can only be rebutted by clear evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 62 1992). VA need only mail notice to the last address of record for the presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q). Here, there is no clear evidence to rebut the presumption of notification in this case. There is no indication or allegation that the September 2010 notice letter was returned as undeliverable or that the appellant did not receive notice of the September 2010 decision. There is no evidence of a change of address prior to the issuance of the decision. The appellant also failed to provide a cogent explanation as to his reasons for not filing a timely NOD. Therefore, there is no legal entitlement to an extension of time to file his NOD in the present case. 38 C.F.R. § 3.109(b); Corry, 3 Vet. App. at 235. In summary, the relevant facts are not in dispute and, therefore, it is the law rather than an interpretation of the evidence, which governs the outcome of this case. The appellant's NOD was untimely. Accordingly, the issue of the timeliness of the NOD must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261, 265 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); accord Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir. 1995). ORDER As the appellant did not file a timely NOD with a September 2010 decision that denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund, the appeal is denied. ____________________________________________ MICHAEL PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs