Citation Nr: 18157782 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-53 486A DATE: December 13, 2018 ORDER A timely notice of disagreement was not received in response to the May 2014 determination of the Regional Office (RO), and the appeal is denied. FINDING OF FACT The Veteran ’s claim for service connection for tinnitus was denied by the RO in a May 2014 determination, and the Veteran did not submit a notice of disagreement within one year of that determination. CONCLUSION OF LAW A timely notice of disagreement was not received by VA as to the May 2014 determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 through September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2015 Notice of Disagreement (NOD), the Veteran conceded that while he may have missed the initial twelve-month deadline for filing an appeal, he has submitted new and material evidence sufficient to reopen and justify a claim for tinnitus. This issue 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 any appropriate action. 38 C.F.R. § 19.9 (b) (2017). A timely notice of disagreement was not received in response to the May 2014 determination of the Regional Office (RO), and the appeal is denied. An appeal consists of a timely filed NOD in writing, and after an 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 notice of disagreement, 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). In this regard, a notice of disagreement 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 notice of disagreement 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 representative must file a notice of disagreement 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 notice of disagreement 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 notice of disagreement 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). The Veteran argues that his NOD should be accepted. Here, in a May 2014 rating decision, the RO denied the Veteran’s claim for service connection for tinnitus; he was notified of this determination by correspondence dated May 29, 2014. The VA did not receive a NOD, additional evidence or any indication that the Veteran desired to appeal the May 2014 rating decision within one year of the determination. Thus, the May 2014 rating decision became final in May 2015. In October 2015, the Veteran filed a NOD, requesting an appeal of the May 2014 decision. In November 2015, VA notified the Veteran that his NOD was not timely filed. The letter enclosed VA Form 4107, “Your Rights to Appeal Our Decision,” which explained the Veteran’s right to appeal the timeliness determination. Because the determination to deny the Veteran’s claim for service connection for tinnitus was made in May 2014, and the Veteran filed a NOD in October 2015, the Board finds that more than one year elapsed between the mailing of the determination and the filing of the NOD. As noted above, a NOD with a determination of the RO must be filed within one year from the date that the RO mailed notice of the determination, and an untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 C.F.R. § 20.302 (a); 38 U.S.C. § 7105 (c). Therefore, the Board concludes that the NOD in this case was not timely, and the Board cannot have jurisdiction of the RO’s decision. The Board understands the arguments presented by the Veteran; however, the law is dispositive. The law requires that the Veteran must file a timely NOD to initiate the appellate process. The Board is bound by the laws and regulations governing the appellate process. 38 U.S.C. § 7104. For the reasons stated above, the Board finds that the Veteran did not file a timely NOD. Moreover, new and material evidence was not received within a year of the May 2014 determination. See 38 C.F.R. § 3.156 (b). The May 2014 determination is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.105. The appeal is denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel