Citation Nr: 18159277 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-00 651 DATE: December 18, 2018 ORDER The appeal seeking to establish that there was a timely notice of disagreement (NOD) filed with respect to an August 2008 rating decision is denied. FINDINGS OF FACT 1. An August 2008 rating decision granted the Veteran service connection for residuals of right and left lower extremity compartmental fasciotomies (each rated 0 percent) and related scars (each rated 10 percent), all effective August 21, 2007; she was notified of that decision by correspondence mailed on August 29, 2008. 2. In a letter received in September 2012, the Veteran stated, “This letter is to appeal my current rating for compensation”; she indicated that the disabilities had worsened in the past several years; there is no earlier communication from her expressing disagreement with the August 2008 rating decision. CONCLUSION OF LAW The Veteran’s correspondence received in September 2012 was not a timely NOD with the August 2008 rating decision (which granted service connection, and assigned ratings and effective dates, for residuals of right and left lower extremity compartmental fasciotomies and related scars, and that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.34, 20.101(c), 20.200, 20.201, 20.300, 20.302, 20.305. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from June 2002 to November 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 RO decisional letter that determined that a letter received in September 2012 may not be accepted as a timely NOD with an August 2008 rating decision. Legal Criteria Under 38 U.S.C. § 7105(a), an appeal to the Board is initiated by a NOD and completed by a substantive appeal (VA Form 9 or equivalent) after a statement of the case is furnished to the claimant. The following sequence is required: there must be a decision by the RO, the claimant must express timely disagreement with the decision (an NOD), VA must respond by explaining the basis of the decision to the claimant, and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. A NOD is a written communication from a claimant, representative, expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can reasonably be construed as a disagreement with the determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). [Effective March 24, 2015, VA amended its rules as to what constitutes a valid NOD, requiring that such be submitted on a specific form prescribed by the Secretary. See 79 Fed. Reg. 57660 (Sept. 25, 2014) (eff. Mar. 24, 2015); 38 C.F.R. § 20.201.] An NOD with an RO determination must be filed within one year from the date that notice of the determination was mailed. 38 C.F.R. § 20.302(a). If an NOD is not filed within the one-year period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely filed NOD is a jurisdictional bar to appellate consideration, and is a matter that may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). Factual Background An August 2008 rating decision granted the Veteran service connection for residuals of right and left lower extremity compartmental fasciotomies (each rated 0 percent) and for related scars (each rated 10 percent), all effective August 21, 2007 (the date of claim). August 29, 2008 RO correspondence to the Veteran notified her of the rating decision and advised her of her procedural and appellate rights (by an enclosed VA Form 4107 “Your Rights to Appeal Our Decision”. She was informed that she had one year from the date of the notice letter to appeal the August 2008 rating decision. The next communication from the Veteran shown in her record (other than an April 2009 Waiver of VA Compensation to Receive Military Pay and Allowances) is a September 2012 statement indicating, “This letter is to appeal my current rating for compensation.” She reported a worsening of symptoms of her residuals of bilateral lower extremity compartmental fasciotomies. [The September 2012 statement was also treated as a claim for increase, which was denied in a January 2014 final rating decision (and is not before the Board).] A November 2012 RO decisional letter advised the Veteran that VA cannot accept her September 2012 statement as a timely NOD with the August 2008 rating decision. She timely (in December 2012) disagreed with that determination and indicated, “I also included proof showing new evidence that I have had since my initial rating decision in 2008. In this request to reopen my claim, I will include current profiles restricting me from [various physical activities]…I will re-submit these documents that I sent in with my communication on September 8, 2012 as proof of new evidence to show that my current compensation for scars is partial…” In her December 2016 VA Form 9 (substantive appeal), the Veteran argued that her “disagreement on the rating decisions was sent prior to 2012.” She stated, “I started my initial dispute within a year of my rating decision. However what I sent in 2012 was for new evidence on an existing claim.” Analysis While she asserts otherwise, the evidence of record does not show that the Veteran timely (within a year following date of notice) filed an NOD with the August 2008 rating decision. Governing regulations (cited above) require that for an NOD with a determination of the RO to be timely, it must be filed within a year following the date notice of the determination was mailed. Here, the first statement from the Veteran expressing disagreement with, or intent to appeal, the August 2008 rating decision was received more than four years after the August 2008 rating decision (well beyond the one-year period afforded for timely filing of an NOD). The record does not show that the Veteran requested an extension of time to file an NOD (see 38 C.F.R. § 3.109(b)) or submitted new and material evidence within a following notice of the August 2008 rating decision (which would have rendered it non-final). The Board notes the Veteran’s statements indicating that she expressed disagreement with the August 2008 rating decision earlier than in 2012, and that her September 2012 statement was meant to “reopen [her] claim” as “new evidence.” The record does not show a written (or verbal, such as a Report of Contact memorializing a telephone call) communication from the Veteran expressing dissatisfaction or disagreement with the August 2008 rating decision within one year of that decision. [As was noted above, the AOJ also treated her September 2012 statement as a claim for increase, which was adjudicated in a final January 2014 rating decision.] Failure to file a timely NOD is a jurisdictional bar to appellate consideration of a claim that cannot be waived. As the Veteran is not shown to have filed a NOD with the August 2008 rating decision within one year following the August 29, 2008 notification of the decision, her appeal seeking to establish that there was a timely NOD filed with the August 2008 rating decision must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dupont, Jason