Citation Nr: A21018174 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 191101-191864 DATE: November 12, 2021 ORDER The Veteran's appeal for VA to consider his Notice of Disagreement with the June 2017 rating decision to be timely and valid is granted. FINDINGS OF FACT 1. The United States Department of Veterans Affairs (VA) received the Veteran's Notice of Disagreement in May 2018 on an official form prescribed by the VA Secretary within one year of a June 2017 rating decision. 2. The copy of the May 2018 Notice of Disagreement in the claims file contains some smeared text, and the fax machine header indicates at least one of the pages the Veteran's representative faxed to VA was not printed and scanned into the electronic claims file by VA. 3. On February 25, 2019, VA informed the Veteran that the May 2018 Notice of Disagreement was incomplete, and VA offered the Veteran a period of 60 days to resubmit the complete Notice of Disagreement. 4. On May 2, 2019, VA received the Veteran's resubmission of the complete Notice of Disagreement with the June 2017 rating decision. 5. On May 23, 2019, VA notified the Veteran that it found his Notice of Disagreement is untimely. 6. There is an approximate balance of negative and positive evidence as to whether VA received a timely and complete notice of disagreement with the June 2017 rating decision. 7. The record demonstrates good cause for extending the time limit for the Veteran to challenge the adverse June 2017 rating decision. CONCLUSION OF LAW The Veteran's notice of disagreement with the June 2017 rating decision is considered timely and valid. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.109(b), 19.21. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1975 through September 1980. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2019 decision by a VA Regional Office (RO) in the modernized review system. See 38 C.F.R. § 3.2400. VA received the Veteran's Notice of Disagreement in May 2018 on an official form prescribed by the VA Secretary within one year of a June 2017 rating decision in the legacy appeals system. The copy of the May 2018 Notice of Disagreement in the claims file contains some smeared text, and the fax machine header indicates at least one of the pages the Veteran's representative faxed to VA was not printed and scanned into the electronic claims file. On February 25, 2019, VA informed the Veteran that the May 2018 notice of disagreement was incomplete, and VA offered the Veteran a period of 60 days to resubmit the complete notice of disagreement. On May 2, 2019, VA received the Veteran's resubmission of his complete notice of disagreement with the June 2017 rating decision. On May 23, 2019, VA notified the Veteran that it found his Notice of Disagreement is untimely. The Veteran elected to appeal the timeliness determination in the modernized review system under the Direct Review by a Veteran's Law Judge option. See November 2019 Decision Review Request: Board Appeal (Notice of Disagreement). On the form, there Veteran indicates he is challenging the timeliness determination on the basis that there was a form scanning issue. After reviewing the record, the Board finds the Veteran's Notice of Disagreement with the June 2017 rating decision is timely and valid. 38 U.S.C. § 7105 addresses the requirements for filing a timely notice of disagreement, and 38 C.F.R. § 19.21(formerly 38 C.F.R. § 20.201(2018)) provides additional claims processing rules for a notice of disagreement. 38 U.S.C. § 7105 (2018) was in effect at the time the Veteran filed his notice of disagreement, and there are significant subsequent revisions following the creation of the modernized review system. While both the 2018 version of the law and its subsequent revisions require that the notice of disagreement be filed within one year of the mailing of the notice of the adverse decision from VA, the revisions explicitly require the notice of disagreement be filed in the form prescribed by the VA Secretary. While both versions require the notice of disagreement be in writing, the revisions require it identify the specific determination with which the claimant disagrees. 38 C.F.R. § 19.21(a)(1) (formerly 38 C.F.R. § 20.201(a)(1) (2018)) provides that for every case in which the agency of original jurisdiction (AOJ) provides, in connection with its decision, a form for the purpose of initiating an appeal, a Notice of Disagreement consists of a completed and timely submitted copy of that form. VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result that is submitted in any other format, including on a different VA form. 38 C.F.R. § 19.21(a)(4) (formerly 38 C.F.R. § 20.201(a)(4) (2018)) provides that if the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified to the extent a form provided pursuant to paragraph (a)(1) of this section so requires. If the claimant wishes to appeal all of the issues decided by the agency of original jurisdiction, the form must clearly indicate that intent. Issues not identified on the form will not be considered appealed. The Board has some discretion under the applicable law including 38 U.S.C. § 7105 (2018) to determine whether a notice of disagreement is valid and timely received and provide extensions to satisfy claims processing requirements. 38 U.S.C. § 7105(c) (2018) provides that: if no notice of disagreement is filed in accordance with this chapter [38 USCS §§ 7101 et seq.] within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title. (emphasis added). Pertinent regulations allowing for extensions of time beyond the prescribed period include 38 C.F.R. § 3.109(b), which provides that: Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary 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. Denials of time limit extensions are separately appealable issues. Additionally, the United States Court of Appeals for Veterans Claims (CAVC) recently issued a relevant panel decision, Hall v. McDonough , No. 19-8717, 2021 U.S. App. Vet. Claims LEXIS 1838 (Vet. App. Oct. 18, 2021), reversing and remanding a Board decision that dismissed an appeal for lack of jurisdiction because the Veteran's notice of disagreement (NOD) was filed on the wrong form. The decision stresses that determinations about the validity of the notice of disagreement relate to claims processing rules rather than jurisdiction. It stresses that the Board retains jurisdiction over the appeal even when a claimant's pleading fails to conform to form or timing requirements. The Board ultimately finds that the fax machine header information on the incomplete copy of the notice of disagreement indicates the Veteran's representative attempted to fax a complete notice of disagreement including three distinct pages. However, the claims file only contains two distinct pages and a duplicate of one of the pages. The Board finds the most plausible explanations are that (1) the RO's fax machine malfunctioned or (2) the complete form printed from the fax machine but was not properly scanned by VA into the electronic file. The Board finds further development as to the cause of the problem with the faxing, scanning, printing, and uploading of the document would be futile given the amount of time that has passed since filing of the notice of disagreement. Affording the benefit of the doubt to the Veteran, the Board finds that while technological difficulties prevented VA from associating the document with the claims file, VA received the complete Notice of Disagreement within one year of the June 2017 rating decision. Alternatively, the Board finds the record indicates there is good cause (e.g. VA's technological errors) for extending the time period for submitting a notice of disagreement to challenge the adverse June 2017 rating decision. See 38 C.F.R. § 3.109(b). While VA did allow the Veteran 60 days to resubmit the missing page of the Notice of Disagreement, the Board finds good cause for a further extension through the date VA received the resubmission. Accordingly, the Board grants the Veteran's appeal regarding the timeliness of the Notice of Disagreement with the June 2017 rating decision. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.