Citation Nr: 21004143 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-42 545 DATE: January 26, 2021 ORDER A timely notice of disagreement (NOD) was not received with respect to an August 2013 denial of an extension of the delimiting date for education benefits under Chapter 35, Title 38, United States Code (Dependents’ Educational Assistance (DEA)); the benefit sought on appeal is denied. FINDING OF FACT Correspondence was sent to the appellant’s address of record in August 2013 notifying her that her request for an extension of the delimiting date for Chapter 35 (DEA) benefits was denied; thereafter, no NOD was received within the time period prescribed by law. CONCLUSION OF LAW A NOD as to the August 2013 denial of an extension of the delimiting date for Chapter 35 (DEA) benefits was not timely filed. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.109, 20.200, 20.201, 20.302, 20.1103 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1951 to February 1954 and from October 1954 to November 1973, to include service in Korea and Vietnam. Unfortunately, he died in February 2003. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO found that the appellant had not submitted a timely NOD with respect to an August 2013 denial of her request for an extension of the delimiting date for Chapter 35 (DEA) benefits. In March 2016, the appellant testified at a Board video-conference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. In September 2018, the Board remanded the case for additional development. In pertinent part, the Board noted that documents identified in an October 2015 statement of the case (SOC) had not been made part of the electronic claims folder available for review, to include the August 2013 denial letter and records relating to the period from December 2011 to August 2015. The Board remanded the case to rebuild/complete the electronic claims folder. After taking further action, the agency of original jurisdiction (AOJ) confirmed and continued the prior denial and returned the case to the Board. In an October 2020 brief, the appellant’s representative indicated that he had not “seen any documentation of a full rebuild of th[e] file . . . .” Indeed, as detailed in a February 2020 supplemental SOC (SSOC), efforts to completely rebuild the electronic folder were unsuccessful. Correspondence was sent to the appellant in January and June 2019 requesting any such records she might have in her possession. In addition, a January 2019 request for records, directed to the VA Records Management Center, resulted in a response to the effect that no records were available. Those facts notwithstanding, the Board observes that pertinent records have been associated with the electronic claims folder, to include the August 2013 denial letter that is the focus of this appeal, as well as various records from the December 2011 to August 2015 time frame. Under the circumstances, the Board finds there has been at least substantial compliance with the September 2018 remand directives, and that the record is sufficiently complete to allow for a full and fair adjudication of the appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In March 2020, the Board wrote the appellant to inform her that the Veterans Law Judge who conducted the hearing in March 2016 was no longer available to participate in the appeal, and to offer her an opportunity to testify at another hearing. The correspondence stated that if no response was received within 30 days, the Board would proceed on the assumption she did not desire a new hearing. The 30 days have since passed and no response has been received. Accordingly, the Board will proceed to address the merits of the appeal. Whether a timely NOD was received with respect to the denial of an extension of the appellant’s delimiting date under Chapter 35 (DEA). As an initial matter, the Board notes that on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decisions on their claims. The AMA became effective on February 19, 2019. In this case, the issue on appeal concerns whether a timely appeal was initiated pursuant to the appellate process that was in effect prior to the enactment and effective date of the AMA. As such, the provisions of the AMA are not for consideration. Under the legal criteria governing legacy appeals, an appeal to the Board was initiated by filing a NOD and completed by the filing of a substantive appeal after issuance of a SOC. 38 U.S.C. § 7105(a) (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2013). The Board notes that VA amended its adjudication regulations on March 24, 2015 to generally require that NODs be filed using a form prescribed by the Secretary. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective as to appeals filed on or after March 24, 2015. Here, the question presented for the Board’s consideration is whether a timely NOD was filed with respect to an August 2013 denial, which is prior to the effective date of the amended regulations. A “NOD” for purposes of this case was defined as a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201. A liberal standard was applied in determining whether a communication constituted a NOD. However, the communication in question had to at least refer to the decision in question and be framed in terms that could be reasonably construed as expressing disagreement or dissatisfaction with the determination in question and a desire for appellate review. See 38 C.F.R. § 20.201; Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991). In addition, a NOD had to be filed within one year from the date that VA mailed notice of a decision. 38 C.F.R. § 20.302(a). If a NOD was not filed within the one-year time period, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. Further, an untimely NOD deprived the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). Pursuant to 38 C.F.R. § 3.109(b), the time limit for challenging an adverse VA decision may be extended for good cause. The regulation 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. In addition, 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. The United States Court of Appeals for Veterans Claims (Court) has held that there is no legal entitlement to an extension of time, but that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely NOD 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 NOD has been filed on time is appealable. 38 C.F.R. § 19.34. Here, the record reflects that correspondence dated August 29, 2013 was sent to the appellant’s address of record informing her that her request for an extension of the delimiting date for Chapter 35 (DEA) benefits had been denied. A thorough review of the record does not reflect that a NOD was received by VA within one year of the date of mailing of the notice of that denial. Nor has the appellant contended that she submitted a NOD within that time frame. Rather, the appellant has asserted, in essence, that she did not receive the August 2013 correspondence and, therefore, that she could not be expected to respond to it. She testified at the March 2016 hearing that any time she received correspondence from VA, her practice was to bring the correspondence to her county-level representative to take care of the matter. She testified, in essence, that that did not happen in August 2013 because she did not receive any VA correspondence at that time. Although the Board is sympathetic to the appellant, there is a presumption of regularity by which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). To rebut the presumption, the appellant bears the burden of producing clear evidence that VA did not follow its regular practices or that its practices were not regular. See Ashley, 2 Vet. App. at 309. In the case of mailed notices, a claimant's mere statement of nonreceipt is insufficient for that purpose. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001). Absent such clear evidence, timely delivery is assumed. Mindenhall v. Brown, 7 Vet. App. 271 (1994). In connection with the presumption of regularity as it pertains to mailing, the Court has held that VA may rely on the “last known address” of record, see Thompson v. Brown, 8 Vet. App. 169, 175 (1995), and that the burden is on the appellant to keep VA apprised of his or her whereabouts. See Hyson v. Brown, 5 Vet. App. 262 (1993). Here, no alternative address for the appellant was of record when the August 2013 letter was sent. To the contrary, the record reflects that the notice was sent to what is still her address of record. The appellant acknowledged at the March 2016 hearing that no different address had been provided to VA during the pertinent period. Nor does the record support the grant of an extension of the time for filing a NOD under 38 C.F.R. § 3.109(b). Although the appellant provided various reasons as to why she could not complete her education prior to the delimiting date of her Chapter 35 benefits, she has not contended that she was unable to take the required action of filing a timely NOD by reason of health problems or other good cause prior to the expiration of the applicable time period. Rather, as noted, her entire argument rests on an allegation of non-receipt of the August 2013 notice letter; which, as stated above, is insufficient to rebut the presumption of regularity. In light of the foregoing, the Board must find that notice of the August 2013 denial was sent to the appellant’s address of record in August 2013, and that no NOD as to that decision was received within the time period prescribed by law. As there was no timely NOD, the Board is precluded from addressing the underlying merits of the claim. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.