Citation Nr: 1754918 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-07 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Whether a timely notice of disagreement (NOD) was filed regarding a June 2013 rating decision. ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to January 1974. The Veteran died in February 2015, and the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A June 10, 2013 rating decision denied an increased rating for service-connected diabetes mellitus; the Veteran was notified of the rating action and of his appellate rights on June 17, 2013. 2. No communication was received from the Veteran or his authorized representative expressing disagreement with and a desire for appellate review of the June 2013 rating decision, within a year following notice of that rating action. CONCLUSION OF LAW A timely notice of disagreement with the June 2013 rating decision denying an increased rating for diabetes mellitus was not received, and the decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist There is no possibility that any additional notice or development would aid the appellant in substantiating her claim, and as the law and not the facts is dispositive, the provisions regarding development and notice do not apply. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The appellant essentially contends that the deceased Veteran had a pending appeal at the time of his death, and therefore she is entitled to accrued benefits. An appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is issued to the claimant by VA. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. 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. Any written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result, will constitute a notice of disagreement. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the notice of disagreement 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). The actual wording of the communication and the context in which it was written must be considered in determining whether a communication constitutes a notice of disagreement. Jarvis v. West, 12 Vet. App. 559 (1999). All communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). A claimant or representative must file a notice of disagreement within one year from the date that the RO mailed notice of a decision. 38 C.F.R. § 20.302(a). If a notice of disagreement is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely notice of disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The issue of whether a notice of disagreement has been filed on time is appealable. If the claimant or representative protests an adverse decision made by the RO with respect to the timely filing of a notice of disagreement, the claimant will be furnished a statement of the case on the issue of whether the notice of disagreement was timely. 38 C.F.R. §§ 19.34, 20.101(c). The appellant in this case disagrees with an August 2016 letter from the RO informing her that an NOD was not submitted in a timely manner in response to the June 2013 rating decision. A June 2013 rating decision denied an increased rating for diabetes mellitus, among other issues, and notice of the decision was mailed on June 17, 2013, to the Veteran's correct mailing address at the time and was not returned as undeliverable. Following the June 2013 rating decision, no communication or evidence was received for over a year from the Veteran or his representative. In August 2014, the Veteran submitted claims for service connection for COPD and emphysema. The Veteran also submitted private treatment records from Cooper Health, which did not discuss his diabetes. In August 2014, the appellant and not the Veteran himself or his representative, submitted a lay statement that the Veteran had been on insulin the past 8-10 years, and his doctor advised him that being diabetes can affect all the major organs. She also stated that she felt his service-connected disability had gotten worse in the past 3-4 years. In September 2014, the appellant faxed a statement, and she later submitted a copy on which she circled notation that she had submitted a pulmonary report; however no mention of diabetes is included. In March 2015, following the Veteran's passing in February 2015, the appellant submitted an a Application for DIC, Death Pension, and or Accrued Benefits. The appellant was later granted service connection for cause of death. In correspondence received in December 2015, the appellant asserted that the Veteran still had a pending claim that had not been adjudicated at the time of his death. She stated that prior to his death, in 2013 and August 2014, the Veteran and his doctor had forwarded several letters to the VA Office in Philadelphia advising that his condition had gotten worse and requesting an re-evaluation of his diabetes mellitus condition. The appellant's October 2016 notice of disagreement states that VA was notified by the Veteran's diabetic doctor in January 2011and his primary care provider in October 2010 of his worsening condition; and that VA was notified by his family, that his condition was getting worse on August 2014. In the instant case, while the appellant contends the Veteran submitted communications from himself and his doctor between the date of notice of the June 2013 rating decision and his death, no communication was received from the Veteran or his representative expressing disagreement with and a desire for appellate review of the denial of an increased rating in the June 2013 rating decision. Although the appellant believes the Veteran might have submitted such an expression of disagreement as to the referenced rating action, the contemporaneous evidence on file does not support this belief. The Veteran submitted claims for service connection for other issues. Furthermore, while the appellant argues that her August and September 2014 submissions constitute a timely notice of disagreement, that cannot be the case for various reasons. First, the submissions did not take place within a year of the notification of the June 2013 rating decision. 38 C.F.R. § 20.302(a). Second they were not submitted by the Veteran himself or his designated representative but the appellant, who was not an authorized claimant at that time. Lastly, none of the evidence or statements submitted express dissatisfaction or disagreement with an adjudicative determination as they do not reference with the June 2013 rating decision or that he was appealing the determination regarding the diabetes claim. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. There is no evidence in the claims file that supports the contention that timely communications were submitted within a year of the notification of the rating decision. Thus, no communication was sent within a year of the June 2013 rating decision, and furthermore any communications sent afterwards do not meet the criteria to be accepted as a timely notice of disagreement, and therefore the June 2013 rating decision is final. 38 C.F.R. §§ 20.204(c), 20.302. While the appellant argues that doctors' earlier communication from 2011 and 2010 constitute a notice of disagreement, evidence or argument submitted prior to the June 2013 rating decision was part of the original claim and would not constitute a timely notice of disagreement in response to the June 2013 rating decision. In conclusion, the Board finds that a notice of disagreement was not timely filed to the June 2013 rating decision that denied an increased rating for diabetes mellitus. Consequently, the benefits sought are denied because the claim lacks legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER As the Veteran did not file a timely notice of disagreement with the June 2013 rating decision that denied an increased disability rating for diabetes mellitus, the appeal is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs