Citation Nr: 18139948 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-16 711 DATE: October 1, 2018 ORDER A timely notice of disagreement (NOD) was not filed as to the June 2013 rating decision that denied entitlement to service connection for heartburn; the appeal is denied. FINDINGS OF FACT 1. In a letter dated June 6, 2013, the Regional Office (RO) advised the Veteran of the June 2013 rating decision denying entitlement to service connection for heartburn; the notification letter included information as to the Veteran’s appellate rights. 2. New and material evidence with respect to the RO’s June 2013 denial of entitlement to service connection for heartburn was not received within a year of notification of that decision. 3. A NOD with respect to the RO’s June 2013 decision denying entitlement to service connection for heartburn was not received until December 2, 2014, and the record contains no statement or communication from the Veteran prior to that date that constitutes a timely-filed NOD with respect to this issue. CONCLUSION OF LAW The Veteran’s December 2, 2014, NOD expressing disagreement with the denial of entitlement to service connection for heartburn in a June 2013 rating decision was not timely and, therefore, an appeal of that decision has not been properly initiated. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.34, 20.201, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 2004 to July 2006. The issue of whether a June 2013 rating decision denying entitlement to service connection for heartburn contained clear and unmistakable error has been raised by the record in a December 2014 statement, 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. 38 C.F.R. § 19.9(b) (2018). 1. Whether the Veteran timely filed an NOD with a June 2013 rating decision that denied entitlement to service connection for heartburn. In the context of the current appeal, the Board must determine whether the Veteran timely filed an NOD with a June 2013 rating decision that denied entitlement to service connection for heartburn. The relevant regulations define an NOD as “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the [Agency of Original Jurisdiction (AOJ)] and a desire to contest the result.” 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015); see Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002). In this regard, the Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. The NOD must be expressed “in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review” and “the specific determinations with which the claimant disagrees must be identified.” 38 C.F.R. § 20.201. Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file an NOD with a determination by the AOJ within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination becomes final. The date of mailing the letter of notification of the determination is presumed to be the same as the date of the letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Turning to consideration of whether the Veteran submitted a timely appeal with the June 2013 rating decision, as noted in the Findings of Fact above, notification of this decision was sent on June 6, 2013. Importantly, no document received on or before June 6, 2014, can be construed as a valid NOD as to the claim for entitlement to service connection for heartburn. Indeed, the Veteran has not even argued such. Additionally, new and material evidence regarding the claim for entitlement to service connection for heartburn was not received within one year of the June 2013 rating decision. Under 38 C.F.R. § 3.156(b), if new and material evidence is received within the specified timeframe, it may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period” that prevents an initial determination from becoming final. 38 C.F.R. § 3.156(b); see Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, the “effective date will be as though the former decision had not been rendered”). Here, the Board finds that there was no evidence received by the RO within one year of the June 2013 notice letter that can be considered new and material evidence with regard to the service connection claim for heartburn as set forth in 38 C.F.R. § 3.156(a). See Voracek v. Nicholson, 421 F.3d 1299, 1305 (Fed. Cir. 2005). Although new evidence was undeniably added to the record within one year of these decisions, such is not “material” as to the issue at hand as it did not provide a nexus between the Veteran’s heartburn and service. Accordingly, 38 C.F.R. § 3.156(b) does not apply to the facts of this case, and the June 2013 decision did not remain pending in accordance with that regulation. As discussed above, the earliest evidence of receipt of an NOD as to the service connection claim was December 2, 2014, over one year after notice of the June 2013 rating decision was mailed to the Veteran. As such, it cannot be considered a timely filed NOD as to this decision. Thus, in the absence of any submitted document that expressed any disagreement with the service connection claim for heartburn denied in the June 2013 decision within the one-year time frame for filing an NOD, the Board must conclude that there was no timely initiation of an appeal as to that issue. 38 C.F.R. § 20.302. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel