Citation Nr: 21077025 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-63 562 DATE: December 28, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for ischemic heart disease (IHD)/coronary artery disease (CAD) prior to May 20, 2015, and in excess of 60 percent thereafter is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. The appeal as to whether a timely notice of disagreement (NOD) was filed regarding an August 2015 rating decision, which denied the claim of entitlement to service connection for posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. During the September 2021 Board hearing and preconference discussion, the Veteran withdrew his appeal seeking an increased rating for IHD/CAD explicitly, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 2. During the September 2021 Board hearing and preconference discussion, the Veteran withdrew his appeal seeking entitlement to a TDIU explicitly, unambiguously, and with a full understanding of the consequences; there are no further allegations or questions or factual or legal error remaining for appellate consideration. 3. On August 27, 2015, VA provided the Veteran with notification of the August 2015 VA rating decision in which he was informed of his appellate and procedural rights; a copy of the notice was also sent to the Veteran's representative. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an increased rating for IHD/CAD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for filing a timely NOD to the August 2015 rating decision have not been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200 (2016-2018), 20. 201 (2016-2018), 20.202 (2019-2021), 20.302 (2016-2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2020 and September 2021, the Veteran testified before the undersigned Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Entitlement to an increased rating in excess of 30 percent for IHD/CAD prior to May 20, 2015, and in excess of 60 percent thereafter 2. Entitlement to a TDIU At his September 2021 preconference hearing, the Veteran and his representative informed the undersigned VLJ that they wished to withdraw the issues of entitlement to an increased rating for IHD/CAD and entitlement to a TDIU. See September Board hearing transcript, page 2. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. See Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). In the present case, the Board finds that this standard has been met. During the pre-hearing conference and on the record, the Veteran was informed of the implications of withdrawing his appeal, he acknowledged his understanding of the consequences, and made an explicit withdrawal of the same. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the issues of entitlement to an increased rating for IHD/CAD and entitlement to a TDIU. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, these issues are dismissed. 3. The appeal as to whether a timely NOD was filed regarding an August 2015 Rating Decision Generally, under 38 U.S.C. § 7105, an appeal to the Board must be initiated by a timely filed NOD. 38 C.F.R. § 20.200 (2016-2018), 20.201 (2019-2021). In September 2014, VA amended 38 C.F.R. § 20.201, the regulation governing NODs, to require that an NOD be filed on a standard form, i.e., VA Form 21-0958. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014). Effective March 24, 2015, VA only accepted an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as an NOD if it was submitted on a standardized form (VA Form 21-0958, Notice of Disagreement) provided by VA for the purpose of appealing the decision, in cases where such a form is provided. See 38 C.F.R. § 20.201 (2016-2018), 20.202 (2019-2021). Where the agency of original jurisdiction provides no form for purpose of initiating an appeal, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result will constitute a notice of disagreement. The notice of disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201(b). A claimant, or his or her representative, must file the notice of disagreement with a determination by the AOJ within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302 (2017). 38 U.S.C. § 7105(d)(3) provides that "questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals." See also VAOPGCPREC 9-99, 64 Fed. Reg. 52376 (1999). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed notice of disagreement, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See 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). Notably, prior to the amendment, VA would accept NODs in any form, as long as they complied with the other requirements of § 20.201. See generally Jarvis v. West, 12 Vet. App. 559, 561 (1999). The post-amendment standard form requirement applies "only with respect to claims and appeals filed 180 days after the date this rule is published in the Federal Register as a final rule," i.e., after March 24, 2015. 79 Fed. Reg. at 57,686. "Claims and appeals pending under the [then-]current regulations as of that date would continue to be governed by the [pre-amendment] regulations." Id. Here, the claim was filed after the effective date of the amendment; therefore, the new law is applicable to the Veteran's claim. Analysis The Veteran submitted an initial claim for PTSD in May 2015. It was denied in an August 2015 rating decision. In a letter dated August 27, 2015, the Veteran was notified of the decision and under a bolded heading entitled "What You Should Do If You Disagree With Our Decision," the letter advised the Veteran that he had "one year from the date of this letter to appeal the decision" by completing and returning an enclosed VA Form 21-0958, Notice of Disagreement. Also attached was VA Form 4107, "Your Rights to Appeal Our Decision," which explained the Veteran's right to appeal. Therefore, the Veteran had until August 27, 2016 to complete and return the enclosed VA Form 21-0958. See 38 C.F.R. § 20.302(a). The Veteran's then representative, Arizona Department of Veterans' Services received a courtesy copy. An NOD form was attached to the letter. The Veteran timely expressed disagreement with the August 2015 rating decision's denial of service connection for PTSD in a correspondence received by VA in April 2016. The subject of the letter was titled "Notice of Disagreement Additional Information & Subsequent Events." The disagreement was not on the form provided by VA. In December 2016, the Veteran submitted a duplicate of his April 2016 correspondence with his VA Form 9 appeal to the Board of Veterans' Appeals but did not submit a timely NOD on a standardized form. See 38 C.F.R. § 20.201; 79 Fed. Reg. 57698 (explaining that the revised regulation requiring a notice of disagreement be on a standardized form is effective March 24, 2015). During his September 2021 Board hearing, the Veteran's representative testified that the evidence would show the Veteran filed an NOD as to the denial of PTSD with his submittal of the January 2016 NOD. A review of the record shows the Veteran submitted a NOD form (VA 21-0958) in January 2016. In the space set aside for listing the specific issues being appealed, the Veteran wrote "See Attached" and included a six-page statement which reflects his disagreement of the RO's adjudication of his ischemic heart disease (IHD) and diabetes mellitus type II. The Board has liberally construed the statement attached to the January 2016 NOD to determine if a disagreement can be found for the PTSD denial. However, the only reference to this disability is from a recounting of the procedural history of his ischemic heart disability claim when it lists all the disabilities included in his May 2015 claim. This was the only reference to PTSD in the six-page single-spaced statement. It does not otherwise reference PTSD, the denial of benefits for this issue, his disagreement with that decision, or his intent to appeal. The statement does not mention his treatment for this disability or the psychiatric symptoms he experiences. The reference to PTSD was made under a heading "History of Heart Conditions (Ischemic Heart Disease) & Diabetes Mellitus Type II Claim Activity." Even after liberally construing his statement, the Board finds that it does not express a disagreement with the PTSD denial or an intent to appeal. The Veteran testified that he wrote a letter on March 31, 2016 in which he disagreed with the RO's decision on service connection for PTSD. Indeed, as noted above, the record includes a statement received on April 5, 2016 with a heading titled "Disagreement re: PTSD." Unlike the ischemic heart disease and diabetes mellitus claims, this statement was not accompanied by a VA Form 21-0958 with a "see attached" modifier. An additional copy of this statement was provided by the Veteran in December 2016. This December statement was accompanied by a VA Form 9 stating that VA did "not take into account [his] disagreement with [the] decision on PTSD." The Veteran testified that VA may have sent letters saying, "you need to fill out Form XYZ," but because he had so much going on "he did not fill out the specific header form." As the Veteran was provided with the correct form after the March 24, 2015 effective date of the new regulation, compliance with such procedure is required to constitute a proper notice of disagreement. Therefore, although the representative argues that the Board should liberally construe the January 2016 NOD as a notice of disagreement to PTSD, nothing in the NOD or accompanying statement references the denial of service connection for PTSD. A statement expressing disagreement with the PTSD denial was not received until April and this statement was not on the correct form. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. Thus, based on the foregoing, the Board finds that the April 2016 correspondence does not constitute a timely notice of disagreement. Accordingly, his claim is denied. See 38 U.S.C. § 7105(a); 38 C.F.R. § 20.201. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.