Citation Nr: 1337341 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 13-16 183 ) 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 with a June 2010 rating decision that denied entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund. ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In the October 2012 rating decision, the RO found that the appellant did not file a timely NOD with the June 2010 rating decision that denied entitlement to a one-time payment from the FVEC Fund. The appellant appealed the issue of whether he filed a timely notice of disagreement. The issue as to whether new and material evidence has been received to reopen the claim of entitlement to a one-time payment from the FVEC fund has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is REFERRED to the AOJ for appropriate action. 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 a June 1, 2010 rating decision, the RO denied entitlement to a one-time payment from the FVEC fund; the appellant was notified of this decision and his appellate rights. 2. The first evidence of a statement that may be reasonably construed as a notice of disagreement was received by the RO on October 22, 2012, more than one year after the rating decision. 3. The appellant did not request an extension of time in order to file a timely notice of disagreement and good cause has not been shown by the record. 4. The RO did not waive timely filing of a notice of disagreement, and there is no evidence that the appellant was incapacitated, or that extraordinary circumstances existed, such that equitable tolling of the filing deadline is warranted. CONCLUSION OF LAW The appellant did not file a timely notice of disagreement with the June 2010 rating decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In the present case, resolution of the appellant's appeal of this issue is wholly dependent on interpretation of the relevant VA statutes and regulations and whether the appellant filed a timely notice of disagreement with respect to a rating decision. As no reasonable possibility exists that further factual development would assist in substantiating the claim, any deficiencies of VCAA notice or assistance exist, are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). The statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based upon statutory interpretation, rather than consideration of factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Timeliness Pursuant to 38 U.S.C.A. § 7105 (West 2002), a request for appellate review by the Board of a decision by the RO is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case has been furnished. See also 38 C.F.R. § 20.200 (2012). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement with a determination by the RO within one year from the date that the RO mailed the notice of the determination. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302 (2012). The date of mailing of the letter of notification 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) (2012). A notice of disagreement must express disagreement with a determination of the agency of original jurisdiction and express a desire to contest the result. 38 C.F.R. § 20.201 (2012). While special wording is not required, the notice of disagreement must be in terms that can reasonably be construed as disagreement with the determination and a desire for appellate review. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The appellant filed a claim for a one-time payment pursuant to the FVEC Fund in February 2009. A January 2010 rating decision denied the appellant's claim. The appellant was notified of the decision and a VA Form 4107 was enclosed, notifying him of his appellate rights. The RO received additional relevant evidence and readjudicated the appellant's claim in a June 1, 2010 rating decision. The RO denied the appellant's claim. The appellant was notified of the decision and a VA Form 4107 was enclosed, notifying him of his appellate rights. Following the June 1, 2010 rating decision, the RO received a statement in June 2010 and additional evidence. The appellant also submitted a letter dated August 2010 that stated that he would like to "request your help in having my benefits released of what I am hoping for given to me." He enclosed documents with the letter. The appellant was informed in an October 2010 letter of the previous rating decision and that he needed to present "new and material evidence." The October 2010 letter explained that the evidence received was duplicative and redundant evidence that was already considered by the RO in the June 2010 rating decision. See 38 C.F.R. § 3.156 (a),(b) (2013). He was advised in the October 2010 letter that he had one year from the date of the "May 31, 2010" decision. The Board notes that the rating decision, as documented in the claims file, was dated June 1, 2010. Regardless, the next correspondence that could be reasonably construed as a notice of disagreement was received by the RO on October 22, 2012, well beyond the one-year time period for filing a notice of disagreement. See 38 C.F.R. § 20.302(a). First, the Board recognizes that the appellant submitted letters received by the RO in June 2010 and August 2010. The June 2010 letter noted receipt of RO correspondence dated August 2009, January, March 2010, and June 2010. The appellant noted the enclosure of documents including Form 23. In the August 2010 letter, the appellant stated: "I am writing to you regarding my benefits. I am now very old. I would like to request your help in having my benefits released or what I am hoping for given to me." He explained that he was hoping to take advantage of his benefits and enclosed the documents requested. The October 2010 letter notified the appellant of why his claim was previously denied and the evidence received was not new and material and was duplicative of the evidence already considered by the RO. The Board does not find that the June 2010 or August 2010 letter constitutes a notice of disagreement. A timely and adequate notice of disagreement is one that is received by VA within one year after the date of notice of the RO denial and expresses dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ). See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012). While special wording is not required, the notice of disagreement must be in terms which can be reasonably construed as disagreement with that specific determination. 38 C.F.R. § 20.201; see Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002). VA should liberally interpret written communications which may constitute a notice of disagreement under the law. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that "[i]n direct appeals, all filings must be read "in a liberal manner" whether or not the veteran is represented."); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). With respect to the content of the letters, the appellant did not refer to the issue denied by the RO and at no point did he express disagreement or request appellate review. He did not mention a decision in his letters. See Jarvis v. West, 12 Vet. App. 559, 561 (1999) (holding that in determining whether a written communication constitutes a notice of disagreement, the actual wording of the communication and the context in which it was written must be considered). The letters do not contain a statement upon which even liberal construction could aid in forming a notice of disagreement. See Garlejo v. Brown, 10 Vet. App. 229, 233-34 (1997) (Court held that "[e]ven a liberal reading of the appellant's letter does not yield his disagreement with the denial regarding the degenerative joint disease"); Allin v. Brown, 10 Vet. App. 55, 58 (1997) (the mere submission of net worth and employment statement form, in the absence of a statement on the form identifying some disagreement with the rating decision, is not a notice of disagreement; writing expressed no dissatisfaction with the rating decision or a desire for appellate review); see also Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991) ("any communication which can 'reasonably be construed' as expressing dissatisfaction with a VA adjudicative determination must be considered a valid NOD"). Based on the foregoing, neither the June 2010 nor the August 2010 letter constitutes a notice of disagreement. See 38 C.F.R. § 20.201. In a February 2013 letter, the appellant stated that he sent a notice of disagreement in February 2009. He stated that his notice of disagreement was acknowledged by the RO and he did not receive any apply. Attached to the February 2013 letter was a dated December 2010 notice of disagreement, which would have been timely. The appellant appears to argue that he filed a timely notice of disagreement and the error lies with the RO. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926); Mindenhall v. Brown, 7 Vet. App. 271 (1994); Ashley v. Derwinski, 2 Vet. App. 307 (1992). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). The Board finds that there is no clear evidence to the contrary to rebut the presumption of regularity in this case. The December 2010 notice of disagreement was attached to the appellant's February 2013 letter. There is no indication that the December 2010 notice of disagreement was sent to the RO. In fact, the appellant provided inconsistent statements as to whether or not he filed a timely notice of disagreement. In his October 2012 letter, entitled "notice of disagreement," the appellant explained that he failed to communicate with the Veterans Affairs Office because he was hurt, dismayed, and demoralized regarding the June 2010 rating decision. In contrast, in a November 2012 letter, the appellant explained that he received the June 2010 decision on July 11, 2010 and that his sicknesses caused him a lot of problems. In turn, he neglected to look for someone to help him communicate with the office within the one-year period. With respect to whether he filed a timely notice of disagreement, the Board finds the appellant to not be credible. The Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The appellant first stated that he did not file a notice of disagreement because he was hurt and dismayed with respect to the denial of his claim. In a subsequent letter, the appellant stated that his sicknesses caused him to not communicate with the RO within the one-year period. Finally, in the February 2013 letter, the appellant stated that he did file a timely notice of disagreement, but did not hear anything in return. The appellant's accounts are inconsistent regarding the filing of a timely notice of disagreement. As these accounts are fascially inconsistent, the Board finds the appellant's contention regarding the filing of a timely notice of disagreement to not be credible. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Colusa v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam). Without clear evidence to the contrary and with the presumption of regularity of the official acts of public officers, the Board must conclude that any mail sent to the RO by the appellant would have been received and associated with the claims file. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998). The evidence does not show that a notice of disagreement was received by the RO (prior to the October 2012 notice of disagreement). Pursuant to 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). Here, the appellant did not file a request for an extension of time to complete his notice of disagreement. Further, good cause has not been shown. The appellant claimed that he was sick and that he could not seek someone to help him file a notice of disagreement because he was hurt and dismayed as to the denial of his claim. Based on the appellant's inconsistent statements and unreliability as a historian, the Board does not find good cause for failing to file a timely notice of disagreement. 38 C.F.R. § 3.109(b); Corry, 3 Vet. App. at 235. Therefore, the time limit is not extended in this case. Some RO actions may operate as a waiver of the time requirements for filing a substantive appeal. See generally Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003) (holding that a claimant's failure to file a timely substantive appeal from an RO decision does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction unless there was also an indication that the RO closed the appeal pursuant to 38 C.F.R. § 19.32); see also Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board recognizes that these cases apply to whether the RO waived timeliness with respect to substantive appeals, not notice of disagreements. In any event, there is no evidence that the RO treated the case as an active appeal. Accordingly, there is no waiver of the time requirements for filing a notice of disagreement. The doctrine of equitable tolling has also been considered. The United States Court of Appeals for Veterans Claims has held that equitable tolling is to be applied when circumstances preclude a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board. Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order). See also Barrett v. Principi, 363 F.3d 1316, 1318 (2004); McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005). The appellant bears "the burden of demonstrating that equitable tolling is warranted." Checo v. Shinseki, 26 Vet. App. 130, 133 (2013). Although the appellant indicated in one of his statements that he was sick, he does not allege, and the evidence does not suggest that his failure to file a timely notice of disagreement was due to mental incapacity. The appellant served as his own representative in his proceedings with the RO and presented various written submissions, which reflects that he is capable of reading, analysis, and argument. There is no finding of mental incapacity in the record. Accordingly, the appellant has not demonstrated that his failure to file a timely notice of disagreement was due to mental incapacity. With respect to extraordinary circumstances, this has not been reflected by the evidence. Again, the appellant stated that he was sick, but in an earlier statement, he reported that he did not file a timely notice of disagreement because he was dismayed by the decision. The appellant does not describe any extraordinary circumstances beyond his control which prevented him from timely filing his notice of disagreement. The evidence does not establish a basis for equitable tolling of the filing deadline based on extraordinary circumstances. Finally, the evidence does not indicate that the appellant was prevented from filing a timely notice of disagreement based upon any conduct, misrepresentation or trickery by VA. Accordingly, there is no basis for equitable tolling of the filing deadline. In sum, the appellant did not file a timely notice of disagreement with respect to the denial of his claim in the June 2010 rating decision. Equitable remedies are not warranted in this case. The Board is bound by the laws and regulations governing the appellate process. 38 U.S.C.A. § 7105 (West 2002). Accordingly, the appellant's appeal as to timeliness of a notice of disagreement must be denied. ORDER As the appellant did not file a timely notice of disagreement with a June 2010 rating decision that denied entitlement to a one-time payment from the FVEC Fund, the claim is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs