Citation Nr: 18144167 Decision Date: 10/25/18 Archive Date: 10/23/18 DOCKET NO. 16-40 530A DATE: October 25, 2018 ORDER A finding that a valid and timely Notice of Disagreement (NOD) was received in response to a July 2013 rating decision which denied entitlement to the cause of the Veteran’s death is granted. FINDING OF FACT A valid and timely NOD was filed as to a July 2013 rating decision which denied entitlement to the cause of the Veteran’s death. CONCLUSION OF LAW A timely and valid NOD, contesting a July 2013 VA rating decision, with a July 2013 notification letter, was received. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.302 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1961 to July 1969. He died in October 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction of the claims file was originally established with the VA RO in St. Petersburg, Florida then subsequently transferred to the VA RO in Winston-Salem, North Carolina. As will be explained below, the appellant submitted a valid and timely NOD as to the issue of entitlement to service connection for the cause of the Veteran’s death which was denied in a July 2013 rating decision. However, the RO denied her request to activate an appeal because the RO determined that a valid and timely NOD had not been filed. The appellant then submitted a statement in October 2014 and requested that the statement be accepted as an application to reopen a claim for service connection for the cause of the Veteran’s death if the September 2013 notice of disagreement was not accepted. In a March 2015 rating decision, the RO determined that new and material evidence was not submitted and the claim was not reopened. The appellant properly appealed the denial of the application to reopen the claim for service connection for the cause of the Veteran’s death. However, as noted, the Board has determined herein that the appellant submitted a valid and timely NOD as to the original claim for service connection for the cause of the Veteran’s death which was denied in July 2013. As such, the statement submitted in October 2014 should not have been adjudicated as an application to reopen a claim of entitlement to service connection for the cause of the Veteran’s death and should instead be construed as additional argument for the original claim. No further action will be taken by the Board with regard to the claim for new and material evidence as to the cause of the Veteran’s death as the Board has determined herein that a valid and timely NOD was filed as to the original claim. Timeliness of NOD The appellant contends that she submitted a timely and valid notice of disagreement for a rating decision dated in July 2013 which denied service connection for the cause of the Veteran’s death among other things. An appeal consists of a timely filed NOD in writing, and after a Statement of the Case (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 of Appeals for Veterans Claims (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 (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 adjudications. 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 (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) (2018); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2018). 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 (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 (1994). Prior to his death, in June 2012 and September 2012, the Veteran submitted claims for entitlement to service connection for bladder cancer, lung cancer, liver cancer, spine cancer, hip cancer, collarbone cancer, and skin cancer. The Veteran died in October 2012. In a statement received in December 2012, the appellant requested that the service connection claims be continued for accrued benefits and she requested that the RO take action on a claim for DIC (dependency and indemnity compensation). She also submitted a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child which was accepted as a claim for service connection for the cause of the Veteran’s death. In a July 2013 rating decision, service connection for melanoma for accrued benefits, service connection for the cause of the Veteran’s death, service connection for cancer of the collarbone for accrued benefits, and service connection for lung cancer, liver cancer, spine cancer, and bilateral hip cancer for accrued benefits were denied. The Veteran was notified of the rating determination in July 2013. The Veteran submitted a VA Form 21-4138, Statement in Support of Claim dated in September 2013 and indicated that she disagreed with the July 2013 rating decision which denied service connection for the denial of the claim for dependency and indemnity compensation (DIC) as a result of service-connected conditions. It appears that the appellant was referring to the denial of the claim for the cause of the Veteran’s death as a claim for DIC was not adjudicated. The statement was date stamped September 12, 2013, by the VA RO in St. Petersburg Florida, the RO which originally assumed jurisdiction of the Veteran’s claims and where the appellant submitted her claim for death benefits. Inexplicably, the appellant’s notice of disagreement was not recorded although, as noted, the statement was date stamped by the St. Petersburg VA RO in September 2013. The appellant’s representative submitted a statement in September 2014 and noted that the appellant submitted a NOD dated stamped by the St. Petersburg VA RO in September 2013 as to the denial for DIC and indicated that it was not recorded in any VA system. The representative requested that the NOD be recorded and the claims file be transferred to the Winston-Salem VA RO (as the appellant had moved to North Carolina). As noted above, the appellant subsequently submitted a statement in October 2014 and requested that the statement be accepted as an application to reopen a claim for service connection for the cause of the Veteran’s death if the September 2013 NOD was not accepted as timely. The appellant also submitted a statement received in February 2015 and noted that she submitted a NOD as to the claim for death benefits to the VA RO in St. Petersburg but the VA RO in Winston-Salem refused to accept the NOD. She reported that she moved to North Carolina during the pendency of the appeal and assumed that the cause of death claim was in appellate status as she was advised that appeals take a long time to process and she was surprised to find out that the NOD had not been processed. In a March 2015 rating decision, the RO determined that new and material evidence was not submitted and the claim for service connection for the cause of the Veteran’s death was not reopened. The appellant submitted a VA Form 21-0958, VA Notice of Disagreement in May 2015 and disagreed with the finding that the September 2013 statement expressing disagreement with the denial of the claim for service connection for the cause of the Veteran’s death was not timely as the October 2014 statement was accepted as an application to reopen a claim of entitlement to service connection for the cause of the Veteran’s death. A Statement of the Case (SOC) was issued in August 2016 and the appellant submitted a VA Form 9, Substantive Appeal later that month and perfected an appeal as to the issue of whether the September 2013 NOD was timely. In considering the evidence of record and the applicable laws and regulations, the Board concludes that a valid and timely notice of disagreement was filed with regard to the July 2013 rating decision which denied service connection for the cause of the Veteran’s death. The appellant submitted a VA Form 21-4138 and specified the date of the rating with which she disagreed as well as the issue of entitlement to DIC (which was adjudicated as entitlement to service connection for the cause of the Veteran’s death). The statement was date stamped September 12, 2013, by the VA RO in St. Petersburg Florida. In various statements both the appellant’s representative and the appellant herself requested that the NOD be accepted as timely. As the September 2013 NOD identified the date of the rating with which the Veteran disagreed and the issue with which she disagreed, the Board finds that a valid and timely NOD in response to the July 2013 rating decision was received, and therefore, the claim is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel