Citation Nr: 20040199 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 18-53 274A DATE: June 11, 2020 ORDER The Veteran did not file a timely Notice of Disagreement with the January 2017 determination that he was not entitled to Vocational Rehabilitation and Employment (VR&E) benefits pursuant to the provisions of 38 U.S.C. Chapter 31; thus, the claim is denied. FINDING OF FACT 1. In January 2017, the Agency of Original Jurisdiction (AOJ) issued a letter of determination denying the Veteran entitlement to VR&E services. 2. The Veteran’s Notice of Disagreement with that decision came, for the first time, in March 2018. CONCLUSION OF LAW The Veteran did not file a timely Notice of Disagreement with the January 2017 eligibility determination for entitlement to VR&E (Chapter 31); thus, the January 2017 eligibility determination is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from December 1986 to December 1991. The Veteran is a Gulf War Era Veteran who also served during Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 administrative decision issued by the Department of Veterans Affairs (VA). The Veteran contends that his vocational goal is feasible and that he is entitled to VR&E benefits, pursuant to 38 U.S.C. chapter 31. However, in order for the Board to address the merits of this contention, it must first determine whether the Veteran filed a timely Notice of Disagreement with the VA determination that he was not entitled to VR&E benefits. An appeal to the Board must be initiated by a Notice of Disagreement and completed by a Substantive Appeal after a Statement of the Case is issued to the claimant by VA. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.22, 19.29, 19.51, 19.52. 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. § 19.22. With respect to a Notice of Disagreement, a notice of disagreement (NOD) consists of a completed and timely submitted copy of the form prescribed by VA. 38 C.F.R. § 19.21(a)(1). VA will not accept as a Notice of Disagreement a mere expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. Id. A claimant or his representative must file a Notice of Disagreement within one year from the date that the Agency of Original Jurisdiction (AOJ) mailed notice of a decision. 38 C.F.R. § 19.52. If a Notice of Disagreement is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 19.52, 20.1103. An untimely Notice of Disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). While the Board may waive the issue of the timeliness of a Substantive Appeal, an untimely Notice of Disagreement is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The issue of whether a Notice of Disagreement has been filed on time is appealable. 38 C.F.R. § 19.34. If the claimant or representative protests an adverse decision made by the AOJ with respect to the timely filing of a Notice of Disagreement, the claimant will be furnished a Statement of the Case on the issue of whether the Notice of Disagreement was timely. 38 C.F.R. §§ 19.29, 19.34. The essential facts in this case are not in dispute. In a December 2016 letter of determination, sent on December 16, 2016, the Veteran was notified that the vocational rehabilitation counselor (VRC) was unable to establish feasibility, affording 30 days to request that the case remain open. The Veteran was further notified that, if no such request was received, his services may be discontinued. The Veteran submitted a letter in January 2017, stating that the December 2016 letter did not explain the reason for interruption of his VR&E services. As noted above, the December 2016 letter specifically stated that the Veteran’s services were proposed to be discontinued due to the inability of the VRC to establish feasibility. The Veteran requested a second letter explaining the reason for the discontinuance of services and 30 days to respond. In January 2017, the Veteran was provided a letter, sent on January 17, 2017, notifying the Veteran that his VR&E services were discontinued. The January 2017 letter reiterated his notice in December 2016 and stated: “Your 12-year eligibility has expired, and you have not been able to establish your feasibility to return to work through the use of an Individualized Extended Evaluation Plan. Despite our best efforts to assist you, you have declined this.” He was also provided with VA Form 4107, entitled "Your Rights to Appeal Our Decision," which indicated that he had one year from the date of the January 2017 decision to appeal the determinations made in the decision. On March 20, 2018, the Veteran filed a Notice of Disagreement (NOD) (VA Form 21-0958) indicating that feasibility had been met. While the letter of determination denying the Veteran’s entitlement to VR&E services was dated January 17, 2017, greater than one year before the Veteran’s NOD was filed, the Board notes that the Veteran wrote on his NOD that the date of the letter of notification of the decision being appealed was March 28, 2017, less than one year prior to the filing of the NOD. A thorough review of the record, however, does not reveal any letter of determination or rating decision dated March 2017. The AOJ notified the Veteran in a May 2018 administrative decision that the March 2018 NOD, appealing the January 2017 letter of determination, was not timely received. The Veteran filed a timely NOD to that decision, a Statement of the Case was issued, and the Veteran perfected an appeal to the issue of the timeliness of the NOD to the Board. The Board finds that the March 2018 NOD was not timely filed because it was received more than one year following the issuance of the January 2017 letter of determination, denying the Veteran entitlement to VR&E services. Therefore, that communication cannot be accepted as a timely NOD, and thus, the January 2017 decision on the feasibility of employment, and the Veteran’s entitlement to VR&E services, is final. 38 C.F.R. §§ 20.204(c), 20.302. No earlier communication from the Veteran was received after the May 2014 decision that could reasonably be construed as a timely Notice of Disagreement. The Board acknowledges the Veteran's assertion that there were violations of procedural and appellate rights on the part of the VRC. The Veteran did not make specific allegations for the Board to address. A review of the file, however, does not provide evidence in support of the Veteran’s assertion. The Veteran was afforded 30 days from the December 2016 letter of determination to request that the case remain open. He was provided notification of the manner and time by which to exercise his appellate rights with the January 2017 letter of determination. As such, the Board finds no evidence that there were violations of the Veteran’s procedural or appellate rights. The Board is grateful for the Veteran’s honorable service. The Board finds, however, that a Notice of Disagreement was not timely filed to the January 2017 decision regarding the Veteran’s feasibility and entitlement to VR&E services, and the Veteran's claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, Associate 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.