Citation Nr: 21071095 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-21 853 DATE: November 29, 2021 ORDER The issue of whether the September 2015 notice of disagreement (NOD) was timely filed is dismissed. FINDING OF FACT No decision or adjudicative determination has been issued by the agency of original jurisdiction, which is a necessary predicate to filing a NOD. CONCLUSION OF LAW The timeliness of the September 2015 NOD must be dismissed as moot. 38 U.S.C. §§ 511, 5104, 7104, 7105; 38 C.F.R. §§ 3.103, 19.25, 20.200, 20.201. (Continued on next page) REASONS AND BASES FOR FINDING AND CONCLUSION For the following reasons, the Board of Veterans' Appeals (Board) finds that the issue of the timeliness of the September 2015 NOD must be dismissed as moot, as no decision has been issued by the agency of original jurisdiction (AOJ) to which it could pertain. A. Law The Secretary of the Department of Veterans Affairs (VA) shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C. § 511(a). All questions in a matter which, under 38 U.S.C. § 511(a), is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. 38 U.S.C. § 7104(a). Decisions in such appeals are made by the Board. Id.; 38 C.F.R. § 20.101(a). In the case of a decision by the Secretary under 38 U.S.C. § 511 affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision. 38 U.S.C. § 5104(a). The notice shall include an explanation of the procedure for obtaining review of the decision. Id. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right to representation. 38 C.F.R. § 3.103(a). Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. § 3.103(b). Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation, and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. Id. Under VA's legacy appeal system, which applies here, appellate review shall be initiated by the filing of a NOD in the form prescribed by the Secretary. 38 U.S.C. § 7105(a); see 38 C.F.R. § 20.200 (defining what constitutes an appeal); see also 38 C.F.R. §§ 3.2400, 19.2 (providing, in pertinent part, that the modernized review system applies to claims for which VA issues notice of an initial decision on or after the effective date of the modernized review system, which is February 19, 2019). With regard to the filing of NOD's under the legacy system, VA regulation provides, in pertinent part, that for every case in which the AOJ provides, in connection with its decision, a form prescribed for the purpose of initiating an appeal, a NOD consists of a completed and timely submitted copy of that form. 38 C.F.R. § 20.201(a). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute a NOD relating to a claim for benefits in any case in which the AOJ does not provide a form identified as being for the purpose of initiating an appeal. § 20.201(b). With regard to the time limit for filing a NOD, VA regulation provides, in pertinent part, that a claimant, or his or her representative, must file a NOD with a determination by the AOJ within one year from the date that that agency mails notice of the determination to him or her. 38 C.F.R. § 20.302(a). Otherwise, that determination will become final. Id. Whether or not a claimant has timely filed a NOD is an appealable issue, but in such case, appellate consideration shall be limited to the question of whether the correct form was timely filed. 38 C.F.R. §§ 19.24(d), 19.34; 20.101(c) (2018). B. Discussion The Veteran filed a claim for an acquired mental disorder in October 2013 (VA Form 21-526). VA sent him a letter in March 2014 notifying him that it needed to make a threshold determination regarding the character of his discharge to determine his eligibility for VA benefits (see 38 C.F.R. § 3.12), and requested that he submit certain information toward that end. He did not respond, and the letter was returned to VA by the U.S. Post Office as undeliverable. The file documents VA's subsequent efforts to contact or locate the Veteran, which were unavailing. See June 2014 VA 27-0820 (Report of General Information). It was noted that if he could not be located, it "appear[ed] that the pending claim must be disallowed" in accordance with internal procedures. Id. The Veteran, through his representative, filed a 2015 NOD (VA Form 21-0958) at the AOJ in September 2015. In Section 9 of the formthe "notification/decision letter date"July 3, 2014 was entered as the date of the decision or notification. However, no decision or notification letter was issued on that date or any other date. There is a July 3, 2014 VA Form 27-0820 stating that mail addressed to the Veteran was returned in April 2014 as undeliverable, and that efforts to contact him by phone were unsuccessful. His whereabouts remained unknown. This document reflects notes by VA staff members for the fileessentially an internal memorandumand is not a decision or adjudicative determination issued to the Veteran. There is also an Award Print sheetagain, an internal documentreflecting that the claim for compensation was disallowed effective July 3, 2014 due to the Veteran's whereabouts being unknown. That document also does not constitute a decision issued to the Veteran. It appears the September 2015 NOD, which was filed on his behalf by his representative, may have been referring to that internal document. The March 2018 statement of the case (SOC), under the heading "Adjudicative Actions," states that the claim was considered and the claimant notified of the decision on April 14, 2014. However, the file does not contain a document with that date, or any adjudicative determination or decision. Indeed, the body of the SOC, in the "Reasons and Bases" section, refers instead to the letter sent on March 14, 2014, stating that a decision on his claim was made on that date, and that he was notified of the decision on that date. As discussed above, that letter was a notification letter asking him to provide more information in order to make a determination as to the character of his service; it was not a decision or adjudicative determination. In sum, there has been no decision or adjudicative determination by the AOJ in accordance with sections 511(a) and 5104(a) of the statute, which is a necessary predicate to filing a NOD. See 38 U.S.C. § 7105; 38 C.F.R. § 20.201. Accordingly, the issue of the timeliness of the September 2015 NOD is dismissed as moot. See 38 U.S.C. §§ 7104(a), 7105. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.