Citation Nr: 18149381 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-38 249 DATE: November 9, 2018 ORDER As a notice of disagreement (NOD) was not timely filed to appeal the July 3, 2013 denial of the claim for burial benefits, the appeal is denied. FINDINGS OF FACT 1. A July 3, 2013, letter notified the appellant that the claim of entitlement to burial benefits was denied; the appellant expressed disagreement with that decision in correspondence received on September 20, 2014. 2. There is no written communication expressing a desire to appeal the July 2013 decision filed by the appellant within one year of the July 3, 2013 notification letter. CONCLUSION OF LAW As a timely notice of disagreement with the July 2013 denial of the appellant’s claim for burial benefits was not received, the claim must be denied for lack of jurisdiction. 38 C.F.R. §§ 20.200, 20.201 (effective prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1974 to March 1983. She died in April 2012. The appellant is her sister. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2014 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin determined that the appellant’s September 2014 submission constituted an untimely notice of disagreement (NOD) with the July 2013 denial of burial benefits. The appellant filed a notice of disagreement (NOD) in July 2015. The RO issued a statement of the case (SOC) in August 2015 and she filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in October 2015. The appellant contends that her September 2014 submission constitutes a valid and timely NOD with the July 2013 denial of her claim for burial benefits. VA law provides that claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits. 38 C.F.R. § 3.103(b). Notification for VA purposes is a written notice sent to the claimant’s last address of record. 38 C.F.R. § 3.1(q). An appeal consists of a timely filed NOD in writing that can be reasonably construed as a disagreement and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (effective prior to March 24, 2015). The NOD must be filed within one year from the date of mailing of notice of the result of initial review or determination, and such notice, and appeals, must be in writing and filed with the agency of original jurisdiction which entered the determination with which disagreement is expressed. 38 C.F.R. § 20.201 (effective prior to March 24, 2015). The record shows that in correspondence issued on July 3, 2013, the appellant was notified that her claim of entitlement to burial benefits was denied. A copy of the decision was provided and she was notified of her right to appeal within one year from the date of that letter. The Board finds that the July 3, 2013, VA decision notice letter was sent to the appellant at her address of record and that there is no indication it was returned as undeliverable. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Thus, rhe appellant is shown to have been adequately notified of the decision and her appellate rights by correspondence issued on July 3, 2013. However, her purported NOD with the denial was received by VA on September 30, 2014—well beyond the one-year period for initiating an appeal Notably, there is no written communication expressing a desire to appeal the July 2013 decision filed by the appellant within one year of the July 3, 2013 notification letter. Indeed, the correspondence received following the July 3, 2013 letter was the September 30, 2014 submission of the appellant, which was deemed untimely. herefore, the Board finds a timely NOD with the July 3, 2013 denial of the appellant’s claim for burial benefits was not received. The Board acknowledges that, in Percy v. Shinseki, 23 Vet. App. 37, 44-47 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a substantive appeal is not a jurisdictional requirement, and that the timeliness requirement may be waived implicitly or explicitly, such as where actions indicate an appeal was perfected or that a timely substantive appeal was filed or otherwise, by action of the RO, accepted as such. However, the holding in Percy is specifically applicable only to a substantive appeal, which is filed following issuance of a statement of the case, and does not apply to an NOD. The applicable law and regulations require that a timely NOD must first be filed in order to initiate an appeal, and Percy does not permit the Board to waive this jurisdictional requirement. Here, the legal authority pertaining to timeliness requirements for appeals is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As, on these facts, there is no legal basis to find that a timely NOD to the July 2013 decision denying burial benefits was received, the Board lacks jurisdiction to address the merits of the appellant’s claim, and it must be denied on this basis. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel