Citation Nr: 19166153 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 19-07 405 DATE: August 27, 2019 ORDER Entitlement to an extension for filing a Notice of Disagreement (NOD) with respect to July 2014 and November 2014 rating decisions is denied. FINDINGS OF FACT 1. The July 2014 rating decision granted service connection for radiculopathy of the right lower extremity, radiculopathy of the left lower extremity and traumatic brain injury (TBI). Notice of the rating decision was issued on July 31, 2014. Following additional evidence from VA medical records and a September 2014 VA examination of TBI, a November 2014 rating decision continued the ratings assigned for the right lower extremity and TBI and decreased the rating for the left lower extremity. Notice of this rating decision was issued on November 22, 2014. An NOD was received on April 24, 2018, over one year after notice of the rating decision. 2. The Veteran was not rated incompetent by VA, is not shown to have had a physical, mental, or legal disability which prevented the timely filing of a NOD and has not presented good cause for the failure to timely file a NOD to challenge the July 2014 or November 2014 rating decisions. CONCLUSION OF LAW The criteria for entitlement to an extension for filing an NOD with respect to July 2014 and November 2014 rating decisions has not been shown. 38 U.S.C. §§ 5107, 5110, 7104, 7105; 38 C.F.R. §§ 3.102, 20.200, 20.201, 20.300, 20.301, 20.302, 20.305, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2006 to April 2012. 1. Entitlement to an extension for filing a Notice of Disagreement (NOD) with respect to July 2014 and November 2014 rating decisions 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 an NOD, the Court has said that the Board determines de novo whether a document is an NOD. See Fenderson v. West, 12 Vet. App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996). In this regard, an NOD 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. An 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, 561-62 (1999). Effective March 24, 2015, VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as an NOD if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided. See 38 C.F.R. § 20.201 (from March 24, 2015); see also 79 Fed. Reg. 57698; VA Form 21-0958, "Notice of Disagreement." A claimant or his/her representative must file an 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). An NOD must be filed with the VA office from which the claimant received the notice of 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 an NOD is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105 (c). If an appeal is not filed by a claimant personally, or by his or her representative, and the claimant is rated incompetent by VA or has a physical, mental, or legal disability which prevents the filing of an appeal on his or her own behalf, an NOD and a substantive appeal may be filed by a fiduciary appointed to manage the claimant's affairs by VA or a court, or by a person acting as next friend if the appointed fiduciary fails to take needed action or no fiduciary has been appointed. 38 C.F.R. § 20.301 (b). The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302 (a). An NOD postmarked prior to expiration of the one-year period will be accepted as having been timely filed. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. § 20.305 (a). In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305 (a). Under 38 C.F.R. § 3.109, time limits for filing to challenge an adverse VA decision may be extended in some cases on a showing of "good cause." Specifically, 38 C.F.R. § 3.109 (b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. There is no legal entitlement to an extension of time; rather, 38 C.F.R. § 3.109 (b) leaves the decision to the sole discretion of VA. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). 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 filed his original claims in May 2014 for an increased disability rating for a lumbar spine disability and entitlement to service connection for radiculopathy in the right and left lower extremities, claimed as entitlement to a temporary total disability rating, and TBI. In a July 2014 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for radiculopathy in the right and left lower extremities and TBI. The RO notified the Veteran of the July 2014 rating decision in a July 31, 2014 letter and apprised him of his procedural and appellate rights by way of an enclosed VA Form 4107 ("Your Rights to Appeal Our Decision"). The July 2014 notice informed the Veteran he may access the standardized NOD, VA Form 21-0958, in a website provided in the letter or he may obtain the form by calling the RO. Per the address line, the letter was mailed directly to the Veteran at his address of record at that time. This notice indicates that a copy was also sent to the Veteran’s representative at that time, the American Legion. Following additional evidence received in the record, including VA medical records, a September 2014 VA examination of TBI and a November 4, 2014 communication from the Veteran with additional service information, the RO issued a November 2014 rating decision continuing the ratings assigned for the right lower extremity and TBI and decreasing the rating for the left lower extremity. The RO notified the Veteran of the November 2014 rating decision in a November 22, 2014 letter and apprised him of his procedural and appellate rights by way of an enclosed VA Form 4107 ("Your Rights to Appeal Our Decision"). The November 2014 notice informed the Veteran he may access the standardized NOD, VA Form 21-0958, in the website provided in the letter or he may obtain the form by calling the RO. Per the address line, the letter was mailed directly to the Veteran at his address of record at that time. This notice indicates that a copy was also sent to the Veteran’s representative at that time, the American Legion. An NOD was received on April 24, 2018, over three years after notices of the July 2014 and November 2014 rating decisions. In his NOD, the Veteran disagreed with the ratings assigned for radiculopathy of the left and right lower extremities and TBI in the July 2014 rating decision. The Board observes that the claims folder contains no communications from the Veteran or representative at that time, the American Legion, dated within one year of the July 2014 or November 2014 rating decisions that could reasonably be construed as an NOD. See 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). Moreover, per the regulation changes effective March 24, 2015, an expression of dissatisfaction or disagreement will only be accepted as an NOD if it is submitted on a standardized form that is provided by VA. See 38 C.F.R. § 20.201 (from March 24, 2015). In this case, the Board observes that information regarding the standardized NOD, VA Form 21-0958, along with a website to access this form and information that the RO can also provide the form upon request was provided to the Veteran along with the July 2014 and November 2014 notices, and no standardized NOD was received with regard to the ratings assigned for radiculopathy of the right and left lower extremities and TBI until April 2018. Under VA regulations, the Veteran had one year - until July 31, 2015 or November 22, 2015, to file an NOD. See 38 C.F.R. §§ 20.302(a), 20.305. Unfortunately, the first evidence in the claims folder that an NOD was received, via a standardized VA Form 21-0958, with respect to either the July 2014 or November 2014 rating decisions, was not received by the RO until April 2018, well beyond the one-year time limit. Therefore, this statement was untimely. Id. The Veteran has not presented "good cause" as to why he did not file his NOD within one year of the July 2014 or November 2014 rating decisions, by November 22, 2015 at the latest. There is a presumption of regularity of government process that can only be rebutted by clear evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 62 (1992). VA need only mail notice to the last address of record for the presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q). Here, there is no clear evidence to rebut the presumption of notification in this case. There is no indication or allegation that the July 2014 or November 2014 notice letters were returned as undeliverable or that the Veteran did not receive notice of the July 2014 or November 2014 rating decisions. There is no evidence of a change of address prior to the issuance of the July 2014 or November 2014 rating decisions. The Veteran also failed to provide a cogent explanation as to his reasons for not filing a timely NOD. Merely indicating that VA was "wrong" in its decision does not constitute "good cause." In a February 2019 statement accompanying the VA form 9, the Veteran’s attorney asserted that the Veteran’s mental disability prevented him from filing a timely NOD, noting that he had quit his master’s degree program due to his mental disability. In addition, the Veteran’s attorney argued that the former representative during the period that an NOD would have been received as timely, the American Legion, was not a licensed attorney or a law firm that could adequately represent the Veteran and that they could not file an NOD without the Veteran’s permission. It is apparent from the record that the Veteran had the ability to contact the RO with respect to filing his NOD or at least had the ability to contact his VA representative at that time via phone call, the American Legion, in order to have them file an NOD on his behalf. VA outpatient treatment reports from 2014 to 2015 reflect that the Veteran regularly contacted the VA medical center (VAMC) over the phone from November 2014 to June 2015 in order to refill his prescriptions and sought in-person treatment for his disabilities from June 2015 and thereafter. While a June 2015 VA outpatient treatment report reflects that the Veteran reported having to drop classes due to low concentration and mental difficulties and a July 2015 psychiatric evaluation reflects his reports that he failed school due to his TBI, these records also demonstrate he was able to contact the VAMC and personally attend appointments during this time. Also, as noted above, following the July 2014 rating decision, the Veteran sent a letter to VA with additional service information in support of his claim in November 2014, just prior to the issuance of the November 2014 rating decision. In this case, despite his difficulties due to his mental disability, the Veteran was still able to contact the RO and VAMC following the July 2014 rating decision and was in regular contact with the VAMC, via the phone and in person, within the one-year period following the July 2014 and November 2014 rating decision. Accordingly, the above-cited evidence of record, including the Veteran’s letter to VA and the VA medical records, appears to contradict his attorney’s assertions that he was too disabled by his mental disability to file an NOD, request an extension to file the NOD or contact his representative to perform either of these actions on his behalf during the one-year period following the July 2014 and November 2014 rating decisions. Therefore, there is no legal entitlement to an extension of time to file his NOD in the present case. 38 C.F.R. § 3.109(b); Corry, 3 Vet. App. at 235. For the foregoing reasons, the Board concludes that the April 24, 2018, correspondence from the Veteran, via standardized NOD VA Form 21-0958, was not a timely NOD with respect to the July 2014 or November 2014 rating decisions, good cause has not been provided to warrant extending the filing deadline, and the Veteran's appeal must be denied. In adjudicating this claim, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.