Citation Nr: 1329411 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-25 166 ) 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 respect to a May 2009 administrative decision denying entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, that the appellant had not submitted a timely NOD regarding a May 2009 administrative decision denying entitlement to a one-time payment from the FVEC Fund. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a May 2009 administrative decision, the RO denied entitlement to a one-time payment from the FVEC Fund. The appellant was notified of the determination on May 18, 2009. 2. On June 17, 2010, the appellant submitted a NOD to the May 2009 administrative decision. CONCLUSION OF LAW The appellant did not file a timely NOD regarding the May 2009 decision denying entitlement to a one-time payment from the FVEC Fund and, the Board does not have jurisdiction to consider the matter on the merits. 38 U.S.C.A. §§ 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.201, 20.302(a), 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION An appeal to the Board consists of a timely filed NOD in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The NOD must be filed within one year from the date that the RO mails notice of the determination. The date of mailing of the notification is presumed to be the same as the date of the letter. 38 C.F.R. § 20.302(a). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a NOD with a determination by the RO within one year from the date that that RO mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination 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 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. 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. While special wording is not required, the NOD must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. Here, the May 18, 2009 letter notifying the appellant of the administrative action was not returned as undeliverable. On review of all evidence of record, the Board finds that the appellant did not file a timely NOD regarding the RO's May 2009 administrative decision denying entitlement to a one- time payment from the FVEC Fund. The Board notes that the RO properly advised the appellant of his appellate rights at the time of the May 2009 decision by enclosing a VA Form 4107, "Notice of Procedural and Appellate Rights." The record reflects, and the appellant acknowledges, that he did not submit correspondence during the one-year period following notification of the May 2009 decision. On June 17, 2010, he submitted a statement disagreeing with a March 2004 decision denying service connection for anemia and cough for lack of required military service. In November 2010, he submitted a statement disagreeing with the May 2009 decision. There was no document received within the one- year time period that could be reasonably construed as an NOD regarding the May 2009 decision. The appellant contends that he relied on "the very person whom I have trusted to work for my claim." See September 2011 VA Form 9. However, no representative is set forth herein. In any event, the May 2009 decision clearly stated that the appellant had one year to appeal the FVEC decision. Accordingly, the Board must conclude that the appellant failed to submit a timely NOD with respect to the RO's May 2009 denial of his FVEC claim. As such, the Board does not have jurisdiction to review this claim and, pursuant to the Board's authority under 38 U.S.C.A. § 7105(d)(3), the appeal as to the FVEC matter must be dismissed. Since it has been decided herein that the appellant did not file a timely NOD with respect to the May 2009 administrative decision, such decision is considered final. Should the appellant wish to reopen his FVEC claim, he must submit new and material evidence. See 38 U.S.C.A. § 3 .156 (2013). As a final note, the Board points out that it is not required to discuss the Veterans Claim Assistance Act of 2000 (VCAA) with respect to this appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The VCAA essentially clarifies VA's duty to notify claimants of any information that is necessary to substantiate a claim for benefits, and codifies VA's duty to assist. The facts of this case are not in dispute; rather, this case involves pure statutory interpretation. The Court has specifically held that the VCAA does not affect matters on appeal when the question is limited to statutory interpretation. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). Accordingly, the VCAA is inapplicable to the instant case. ORDER As the appellant did not file a timely NOD with respect to the May 2009 RO decision denying entitlement to a one-time payment from the FVEC Fund, the Board has no jurisdiction of that matter and the appeal is dismissed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs