Citation Nr: 1336339 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 13-10 763 ) 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 in response to an April 2010 decision that awarded Dependency and Indemnity Compensation (DIC) benefits effective February 24, 2009. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1952 to December 1955 and from August 1965 to May 1976. He died in December 1988 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 April 2010, a decision granted entitlement to DIC benefits effective February 24, 2009. Notice of the decision and the appellant's appellate rights was mailed on April 15, 2010. 2. Written communication from the appellant dated February 7, 2012, expressing disagreement with the effective date assigned in the April 2010 decision was received by VA on February 21, 2012. 3. The appellant's notice of disagreement to the April 2010 decision was not postmarked or received by VA within one year of the date she received notice of that decision. CONCLUSION OF LAW A timely notice of disagreement was not submitted to the April 2010 decision granting entitlement to DIC benefits and assigning an effective date of February 24, 2009. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 3.160(d) (2013); 38 C.F.R. §§ 20.3(a), 20.200, 20.201, 20.300, 20.301, 20.302, 20.305, 20.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The 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) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Governing law and regulations provide that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim (i.e., there can be no entitlement to the benefit as a matter of law). 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The United States Court of Appeals for Veterans Claims (Court) has further held that VA's duties to notify and assist do not apply where the law, and not the evidence, is dispositive of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As will be discussed below in greater detail, the law is dispositive of the issue of whether a timely notice of disagreement was filed in response to an April 2010 decision, and VA's duties to notify and assist do not apply. II. Analysis As to what constitutes a notice of disagreement, the Court has said that the Board determines de novo whether a document is a notice of disagreement. See Fenderson v. West, 12 Vet. App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996). In this regard, a notice of disagreement is a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudication(s). 38 C.F.R. § 20.201. A notice of disagreement requires no special wording or phrasing and is to be evaluated within the context of the overall record. Id.; see also Jarvis v. West, 12 Vet. App. 599, 561-62 (1999). A claimant or her 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). 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) (2013); 38 C.F.R. §§ 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). 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). A notice of disagreement 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). Under 38 C.F.R. § 3.109, 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 Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed notice of disagreement, 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 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The appellant filed a claim seeking DIC benefits in February 2009. A decision dated in April 2010 awarded the appellant DIC benefits effective February 24, 2009, the date her claim was received. A notice of disagreement as to the effective date of the DIC benefits dated February 7, 2012, was received by the RO on February 21, 2012. There is no communication of record dated prior to February 2012 expressing disagreement with the effective date assigned in the April 2010 decision. The only communications received between April 2010 and February 2012 pertained to the appellant's claim for an increase in her DIC compensation based on entitlement to aid and attendance or housebound benefits received in July 2010. No evidence received prior to February 2012 expressed a disagreement with the effective date assigned for the award of DIC benefits. Indeed, the appellant has not contended filing a notice of disagreement prior to February 2012. Based on a review of the evidence, the Board concludes that the notice of disagreement as to the effective date assigned was not timely. The April 2010 decision granting DIC benefits effective February 24, 2009, was mailed to the appellant on April 15, 2010. Therefore, the appellant had until April 15, 2011, to file a notice of disagreement. A notice of disagreement as to the effective date assigned was date stamped as being received at the RO on February 21, 2012. The appellant dated her notice of disagreement February 7, 2012. Throughout this appeal, the appellant has not contended filing a notice of disagreement prior to February 2012. Therefore, after reviewing all of the evidence, the Board concludes that the notice of disagreement as to the effective assigned to the award of DIC benefits was not timely. Additionally, the appellant has not presented "good cause," or any reason, as to why she did not file a notice of disagreement of disagreement within one year by April 15, 2011, other than she does not know what it means that the RO found that the notice of disagreement was not timely. See May 2012 notice of disagreement as to timeliness issue. The appellant has made arguments regarding why an earlier effective date for her DIC benefits is warranted, but has not provided a reason for why her notice of disagreement as to the effective date was not filed within one year of the decision granting DIC benefits. There is also no indication that the appellant did not receive the April 2010 decision at that time. 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 April 15, 2010, decision was returned as undeliverable or that the appellant did not receive notice of the decision. There is no evidence of a change of address prior to the issuance of the April 2010 decision. Indeed, the fact that the appellant filed for an increase in her DIC benefits based on entitlement to aid and attendance or housebound benefits in July 2010 suggests that she received notice of the April 2010 decision granting her DIC benefits. In sum, the appellant has not provided any explanation as to her failure to file a timely notice of disagreement. Therefore, there is no legal entitlement to an extension of time to file her notice of disagreement in the present case. 38 C.F.R. § 3.109(b); Corry at 235. In summary, the relevant facts are not in dispute and, therefore, it is the law rather than an interpretation of the evidence that governs the outcome of this case. The appellant's notice of disagreement was untimely. Accordingly, the issue of the timeliness of the appellant's notice of disagreement must be denied for lack of legal merit. See Sabonis at 430. As the preponderance of the evidence is against the appeal, the benefit-of-the-doubt rule does not apply, and it is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER A timely notice of disagreement was not filed as to the April 2010 decision that awarded DIC benefits effective February 24, 2009, and the appeal is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs