Citation Nr: A21018697 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 200519-85212 DATE: November 23, 2021 ORDER A notice of disagreement (NOD) having been timely filed as to an October 18, 2018 rating decision, reinstatement of the underlying appeal is granted. FINDING OF FACT The November 14, 2019 NOD is timely as to the October 18, 2018 rating decision on appeal. CONCLUSION OF LAW The criteria for timeliness of the NOD filed on November 14, 2019 have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1983 to April 1989. In a May 2020 VA Form 10182, Decision Review Request: Board Appeal (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. 1. Whether the November 14, 2019 NOD was timely filed as to the October 18, 2018 rating decision In an October 18, 2018 rating decision, the AOJ granted a temporary 100 percent evaluation for the Veteran's right knee disability, effective September 14, 2018, based on surgical or other treatment necessitating convalescence and then assigned a 10 percent from January 1, 2019. In August 2019, the Veteran changed his representation to the attorney listed on the cover page of this decision. In August 2019 correspondence, the attorney requested that records from the Veteran's case be sent to him and that all deadlines be tolled. On November 14, 2019, the Veteran filed a notice of disagreement as to the October 2018 rating decision. In a December 2019 letter, the VA informed the Veteran that they could not accept his November 14, 2019 notice of disagreement as timely. The Veteran filed a VA Form 20-0996 Higher-Level Review request as to the December 2019 decision. A January 2020 rating decision was issued. Significantly, in that January 2020 Higher-Level Review decision, the AOJ determined that they would recognize the November 14, 2019 notice of disagreement as timely. They essentially found good cause for providing an extension to the time limit for filing of an appeal. As a favorable finding the AOJ noted that the request for an extension for filing an appeal was received within the one year time period and as good cause is shown, the request is honored. For reasons that are unclear, the AOJ then issued a May 2020 Higher-Level Review decision now finding that the November 14, 2019 NOD was not received timely. The Veteran filed a May 2020 VA Form 10182 appealing the May 2020 decision and electing the Direct Review docket. Under VA law in effect at the time of the October 2018 rating decision at issue, claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice will clearly set forth the decision made, any applicable effective date, the reason for the decision, the right to a hearing, the right to representation, a summary of the evidence considered (if the claim is denied), and the necessary procedures and time limits to initiate an appeal of the decision by way of a NOD and Substantive Appeal. 38 C.F.R. § 3.103(b)(1), (f). The provisions of 38 U.S.C. § 7105(a) in effect at the time of the October 2018 rating decision and as relevant to the claim addressed in that decision under the Legacy system provided that appellate review will be initiated by a NOD and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section. Effective March 24, 2015, VA amended its regulations to provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ as a NOD, only if it is submitted on a standard form, in cases where such a form is provided. See 79 Fed. Reg. 57660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 19.23, 19.24, 20.201(a) (2017)). For every case in which the AOJ provides, in connection with its decision, a form for the purpose of initiating an appeal, a NOD consists of a completed and timely submitted copy of that form. VA will not accept as an NOD an 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. 38 C.F.R. § 20.201(a)(1) (2017). The Board may implicitly or explicitly waive the issue of the timeliness of a Substantive Appeal. However, an untimely filed NOD is a jurisdictional bar to appellate consideration, and this issue may not be waived. 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). Pursuant to 38 C.F.R. § 3.109 (2017), 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. In short, the time to file a NOD may be extended, or a NOD may be filed out of time, only when 38 U.S.C. § 3.109(b) is applied. Mason v. Brown, 8 Vet. App. 44, 54 (1995). However, 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 record is sufficient to establish the Veteran's attorney remained unaware of the October 2018 rating decision until at least August 2019, when he became the Veteran's representative. Because the NOD was received less than one year after the record shows the Veteran's attorney became aware of the October 2018 rating decision, it is accepted as timely filed. Moreover, the AOJ listed as a favorable finding, in the initial January 2020 Higher-Level Review rating decision, that the request for an extension for filing an appeal was received within the one year time period and good cause had been demonstrated. As such, the appeal of the timeliness issue is granted, and the appeal of the underlying claim should be reinstated. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.