Citation Nr: 18144215 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-15 909A DATE: October 24, 2018 ORDER The portion of the April 23, 2018, Board decision that determined the Veteran had not filed a timely notice of disagreement with respect to a July 2014 rating decision that had denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder is vacated. A timely notice of disagreement was received with respect to a July 2014 rating decision that had denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder. To this extent, the claim is granted. FINDINGS OF FACT 1. On April 23, 2018, the Board determined that the Veteran had not filed a timely notice of disagreement with respect to a July 2014 rating decision that had denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder. 2. On July 15, 2014, the RO issued a rating decision that denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder with mixed features, passive/aggressive personality disorder; notice of this rating decision was mailed the following day. 3. The evidence of record shows that the Veteran submitted a notice of disagreement with respect to the RO’s July 2014 rating decision in January 2015. CONCLUSIONS OF LAW 1. The portion of the April 23, 2018, Board decision that determined the Veteran had not filed a timely notice of disagreement to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The Veteran did file a timely notice of disagreement in response to the July 2014 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.300, 20.302, 20.305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1991 to October 1993. In an October 2016 administrative decision, the Regional Office (RO) determined that the Veteran had not sent in a timely notice of disagreement in response to the July 2014 rating decision that denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder. On April 23, 2018, the Board determined that the Veteran had not filed a timely notice of disagreement with respect to a July 2014 rating decision that denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder. The portion of the April 23, 2018, Board decision that determined the Veteran had not filed a timely notice of disagreement with respect to a July 2014 rating decision that had denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In this case, the Board erred in its determination that the Veteran had not filed a timely notice of disagreement with respect to the RO’s determination that new and material evidence had not been received to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder insofar as it had not considered a January 22, 2015, cover letter to the January 2015 notice of disagreement. Accordingly, the portion of the April 23, 2018, Board decision that determined the Veteran had not filed a timely notice of disagreement with respect to a July 2014 rating decision that had denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder is vacated. A timely notice of disagreement was received with respect to a July 2014 rating decision that denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder. To this extent, the claim is granted. An appeal begins with a notice of disagreement. 38 U.S.C. § 7105(b)(2); 38 C.F.R. § 20.201. A notice of disagreement must be filed within one year from the date notice of the determination was mailed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(a). On July 16, 2014, the RO issued a rating decision that determined new and material evidence had not been received to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder with mixed features, passive/aggressive personality disorder. The Veteran’s representative contends that, on January 27, 2015, a 47-page notice of disagreement was faxed to the fax number that was provided in the July 2014 rating decision notice. That same day, the Veteran’s representative received a fax confirmation showing that the notice of disagreement had been successfully sent to the indicated fax number. Attached to the fax confirmation was a document that, when opened, revealed the cover letter to the notice of disagreement packet that had been faxed to the indicated fax number. The Board notes that the record does contain a January 27, 2015, fax confirmation sheet showing that the Veteran’s accredited representative had successfully transmitted a 47-page document to the fax number that had been provided in the July 2014 rating decision notice. The record also reflects that the notice of disagreement that was submitted in October 2016 was exactly 47 pages long. Furthermore, the Veteran’s representative has submitted a copy of the fax confirmation e-mail and the attachment of the cover letter demonstrating that they had, in fact, faxed the notice of disagreement to the indicated fax number in January 2015. The Board finds that the Veteran did, in fact, submit a timely notice of disagreement with the July 2014 rating decision in January 2015. Therefore, the Board finds that a timely notice of disagreement was received with respect to a July 2014 rating decision that denied a petition to reopen claims of entitlement to service connection for sleep apnea and adjustment disorder. To this extent, the claim is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel