Citation Nr: 1325981 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 13-07 937 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines THE ISSUE 1. Whether the appellant submitted a timely notice of disagreement (NOD) with the June 2009 decision of the Manila, the Republic of the Philippines, Regional Office's (RO) decision denying eligibility to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. 2. Legal entitlement to a one-time payment from the FVEC Fund. ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 RO decision which determined that the appellant had not submitted a timely NOD with a "May 2009" RO decision denying eligibility to a one-time payment from the FVEC Fund. In February 2013, the RO determined that new and material evidence had not been received to reopen the appellant's claim of eligibility to a one-time payment from the FVEC Fund. In July 2013, the Board advanced the appellant's appeal on the docket on its own motion. The Board has reviewed both the physical claims file and the "Virtual VA" file so as to insure a total review of the evidence. The issue of the appellant's eligibility to a one-time payment from the FVEC Fund is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. 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). FINDINGS OF FACT 1. In June 2009, the RO denied eligibility to a one-time payment from the FVEC Fund. 2. The appellant initially received written notice of the June 2009 RO decision in November 2011. 3. In February 2012, the appellant submitted a timely NOD with the June 2009 RO determination. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The appellant submitted a timely NOD with the June 2009 RO decision denying eligibility to a one-time payment from the FVEC Fund. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that he did not receive notice of the June 2009 denial of eligibility to a one-time payment from the FVEC Fund prior to November 2011 and his February 2012 NOD is therefore timely. I. Historical Review In February 2009, the appellant submitted a claim of eligibility to a one-time payment from the FVEC Fund. A VA Acknowledgment Receipt from the RO indicates that the claim was received on February 24, 2009. In June 2009, the RO denied eligibility to a one-time payment from the FVEC Fund. On June 1, 2009, the RO mailed a written notice to the appellant which informed him of the adverse decision and his appellate rights. In an October 29, 2011, letter to the RO, the appellant conveyed that he was "earnestly requesting for an update regarding my application." In November 2011, the RO informed the appellant that: Our records show that your claim for FVEC was denied. You were informed of this decision and your appeal rights on May 30, 2009. In a February 2012 written statement to the RO, the appellant asserted that: Firstly, I would like to express my heartfelt gratitude for responding to my inquiry regarding my claim. Let me reiterate that your letter dated November 17, 2011 is the first and only letter I have received from your good office regarding my claim. Relative hereto, I would like to appeal for reconsideration of my claim. In its March 2012 determination, the RO stated that: We received your NOD on February 22, 2012 but we can no longer accept it to complete your appeal. We sent you our decision on May 30, 2009 and gave you one (1) year from this date to appeal the decision. Since you did not file your NOD on or before May 20, 2010, your NOD is not timely filed. In the January 2013 statement of the case (SOC) issued to the appellant, the RO clarified that: a "review of your claims folder failed to show that our letter of June 2009 was returned to us as undeliverable;" "there is no indication that this was not delivered to you;" and "we can only assume that you received this letter." II. Timeliness of the February 2012 NOD The threshold question to be answered is whether the appellant submitted a timely NOD. VA imposes certain duties on a claimant seeking VA benefits. If he disagrees or is otherwise dissatisfied with a RO's decision, the claimant must express his disagreement with the determination by filing both a NOD and a substantive appeal following the issuance of a SOC. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.202, 20.302. As to the first step of initiating appellate review, the claimant is required to submit a NOD within one year from the date of notice of the adverse decision. 38 C.F.R. § 20.302(a). If he had not submitted a timely NOD, then his appeal fails. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In his May 2012 NOD, the appellant advanced that he "only came to know of the denial of my application upon receipt of your letter dated November 17, 2011." He clarified that "I strongly believe that you may have sent notification (May 30, 2009) but the same never reached me." The Veteran stated that the nearest post office was a one hour ride from his residence. In his March 2013 Appeal to the Board (VA Form 9), the appellant clarified further that mail addressed to individuals in his municipality was usually sent by passenger cars; "deposited in a designated place near the town hall;" "not distributed individually to recipients;" and was either "picked up by the recipient or simply given to neighbors, relatives or friends including elementary pupil[s]." The Board has reviewed the probative evidence of record including the appellant's written statements on appeal. On June 1, 2009, the RO sent the appellant written notice of its denial of his February 2009 claim of eligibility to a one-time payment from the FVEC Fund and his appellate rights. The appellant concedes that the June 1, 2009, notice was most likely mailed to him. However, he avers that he never received the June 1, 2009, notice given both the remoteness of his residence from the nearest post office and the associated irregularity of mail delivery to its location. The appellant's contentions are both credible and supported by the evidence of record. The appellant informed the RO in October 2011 that he had not received any response to his February 2009 claim and requested "an update regarding my application." Such a request is consistent with the appellant's non-receipt of the June 1, 2009, RO notice. Indeed, it belies the RO's assertion that "there is no indication that [the June 2009 notice] was not delivered to" the appellant. Upon resolution of all reasonable doubt in his favor, the Board finds that the appellant was initially informed of the adverse June 2009 rating decision by the RO's November 2011 letter. The appellant's February 2012 NOD was received on February 22, 2012, a date within one year of date of actual notice of the June 2009 decision. Given these facts, the appellant's NOD with the denial of basic eligibility to a one-time payment from the FVEC Fund is timely. 38 C.F.R. § 20.302(a). As the June 2009 RO decision is not final, the issue of whether new and material evidence has been submitted to reopen the issue of eligibility to a one-time payment from the FVEC Fund is now moot. The appellant's eligibility for such benefits is the subject of the Remand portion of this decision below. ORDER The appellant submitted a timely NOD with the June 2009 RO decision denying eligibility to a one-time payment from the FVEC Fund. REMAND The appellant submitted a timely NOD from the denial of eligibility to a one-time payment from the FVEC Fund. The United States Court of Appeals for Veterans Claims (Court) has directed that where a claimant has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a SOC addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC to the appellant which addresses his eligibility to a one-time payment from the FVEC Fund. The appellant should be given the appropriate opportunity to respond to the SOC. 2. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs