Citation Nr: 18144104 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-31 799 DATE: October 23, 2018 ORDER The notice of disagreement received on January 5, 2016 for the grant of claims of entitlement to service connection for moderate recurrent subluxation left knee, moderate recurrent subluxation right knee, limitation of extension left knee, and limitation of extension right knee, denial of claims of entitlement to service connection for right hip condition and left hip condition, and claims for increased evaluations of patellofemoral syndrome with chondromalacia, left knee, patellofemoral syndrome with chondromalacia, right knee, and scar, bilateral knees contained in a June 2014 rating decision was not timely; the appeal is denied. FINDINGS OF FACT 1. By a June 2014 rating decision, the Regional Office (RO) granted claims of entitlement to service connection for moderate recurrent subluxation left knee, moderate recurrent subluxation right knee, limitation of extension left knee, and limitation of extension right knee, denied claims of entitlement to service connection for right hip condition and left hip condition, and denied claims for increased evaluations of patellofemoral syndrome with chondromalacia, left knee, patellofemoral syndrome with chondromalacia, right knee, and scar, bilateral knees; the Veteran was notified of that decision by in June 2014. 2. The Veteran’s notice of disagreement (NOD) was not received by the regional office until January 2016. CONCLUSION OF LAW A timely NOD contesting the June 2014 rating decision’s grant of claims of entitlement to service connection for moderate recurrent subluxation left knee, moderate recurrent subluxation right knee, limitation of extension left knee, and limitation of extension right knee, denial of claims of entitlement to service connection for right hip condition and left hip condition, and denied claims for increased evaluations of patellofemoral syndrome with chondromalacia, left knee, patellofemoral syndrome with chondromalacia, right knee, and scar, bilateral knees was not received. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 20.101, 20.200, 20.201, 20.302 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1998 to February 1999 and March 2003 to March 2005. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2014 rating decision. The Veteran did not request a Board hearing in connection with the appeal decided herein. The record reflects that the Veteran has another pending appeal regarding entitlement to increased ratings for her knees, scars, and bipolar disorder and entitlement to a total disability rating based on individual unemployability for which she has been scheduled a hearing. 1. Timeliness of Notice of Disagreement An appeal consists of a timely filed NOD in writing, and after an SOC has been furnished, a timely filed substantive appeal. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. As to what constitutes a NOD, 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). Within the context of the present case, a NOD 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 NOD 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 his/her representative must file a NOD 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). A NOD must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office. 38 C.F.R. § 20.300. If a NOD is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.160 (d) (2017); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2017). An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105 (c). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. An untimely filed NOD, 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. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Here, the claims of entitlement to service connection for moderate recurrent subluxation, left knee, moderate recurrent subluxation, right knee, limitation of extension, left knee, limitation of extension, right knee were granted in a June 2014 rating decision. The claims of entitlement to service connection for right hip condition and left hip condition were denied in a June 2014 rating decision. The claims for increased evaluations of patellofemoral syndrome with chondromalacia, left knee, patellofemoral syndrome with chondromalacia, right knee, and scar, bilateral knees were denied in a June 2014 rating decision. The Veteran was notified via a June 2014 letter. The Veteran submitted a NOD on January 6, 2016, as well as a motion to accept the NOD as timely. She addressed her disagreement with all issues in the June 2014 rating decision. In March 2016, the RO sent the Veteran a letter notifying her that the January 2016 NOD was not considered a timely NOD for the June 2014 rating decision. The Veteran disagreed with this finding and submitted a completed NOD in March 2016. In May 2016, a SOC was issued for the claim of whether the notice of disagreement received on January 6, 2016 for the June 2014 rating decision was timely. The Veteran submitted a timely VA Form 9 in May 2016. The Veteran alleges that she and her representative did not receive a copy of the June 2014 rating decision. The law presumes that a notice was properly mailed to the Veteran and the representative on the date stamped thereon. Matthews v. Principi, 19 Vet. App. 23, 27 (2005). This presumption may be rebutted by a showing that the notice was not mailed to the correct, last-known address. See id. In this case, the June 2014 rating decision was mailed to the Veteran’s last known address in June 2014. In pertinent part, the June 2014 notice of rating decision, advised the Veteran that her combined evaluation was 30 percent or more disabling and therefore she may be eligible for additional benefits based on dependency. The Veteran was advised that if she wished to submit a claim for dependents, please complete and return the attached VA Form 21-686c, Declaration of Status of Dependents. The record shows that the Veteran submitted VA Form 21-686c in July 2014. Thus, the Veteran had notice of the June 2014 rating decision. With regards to the Veteran’s representative, VA mailed a copy of the notification to the Veteran’s then-representative K.L. as reflected in the June 2014 notification letter. The record does not reflect the notification was returned as undeliverable, or that VA used an incorrect address. Therefore, the presumption that the Veteran was provided notice of the June 2014 rating decision and of her appellate rights is not rebutted, and a timely NOD of that decision was not timely received. Accordingly, as there was no disagreement within the appropriate period of time (within one year of notification of denial) and the record fails to reflect persuasive evidence that VA did not properly mail the June 2014 rating decision to the Veteran and her representative, a valid and timely NOD in response to the June 2014 rating decision was not received, and therefore, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel