Citation Nr: 21008344 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 18-30 847 DATE: February 16, 2021 ORDER The appeal as to the timeliness of the July 2017 notice of disagreement (NOD) regarding a December 2012 rating decision is denied. FINDINGS OF FACT 1. In a December 2012 rating decision, the Agency of Original Jurisdiction (AOJ), among other actions, granted the Veteran’s claim to establish service connection for bilateral hearing loss; a 100 percent initial evaluation was assigned from May 30, 2012. 2. On December 19, 2012, the AOJ mailed a notification letter and the December 2012 rating decision to the Veteran and representative at their correct, respective addresses. 3. Neither the Veteran nor his representative filed a valid and timely NOD or evidence pertinent to the assignment of the assigned effective date of the award of service connection for bilateral hearing loss within one year of notification of the December 2012 rating decision. 4. Neither the Veteran nor his representative has shown good cause as to why the required action could not have been taken during the original time period and could not have been taken sooner than July 2017. CONCLUSION OF LAW The criteria for the appeal as to the timeliness of the July 2017 NOD for the December 2012 rating decision have not been met. 38 U.S.C. §§ 5104(a), 7105; 38 C.F.R. §§ 3.1(q), 3.109, 19.24, 19.34, 20.200, 20.201, 20.300. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1956 to December 1958. This matter comes to the Board of Veterans' Appeals (Board) from a July 2017 administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the AOJ. The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In November 2020, the Veteran and his caretaker presented oral testimony in support of his appeal at a board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. At the November 2020 hearing, the VLJ agreed to hold the record open for 30 days for the submission of additional evidence. The Veteran submitted such evidence within this period, and thus, original consideration of this evidence by the AOJ is waived. Initial note The November 2020 Board hearing transcript reflects that the Veteran ultimately wishes to pursue an earlier effective date for the award of service connection for bilateral hearing loss. Much of the discussion and testimony at the hearing centered around the AOJ’s characterization of the issue on appeal, the theories of entitlement presently available to the Veteran, and the scope of the current appeal. The Board is cognizant of all theories of entitlement asserted by the Veteran and the evidence submitted in support of each; however, the scope of the present appeal is truncated by a procedural threshold with downstream effects. Namely, the Board must first conclude whether or not the Veteran’s July 2017 NOD is timely with regard to the December 2012 rating decision. Once this matter is decided, the Board will discuss the theories of entitlement available to the Veteran and whether he has set forth assertions and/or evidence in furtherance of each. 1. The appeal as to the timeliness of the July 2017 NOD regarding a December 2012 rating decision is denied. An appeal consists of a timely filed NOD in writing, and after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. As to what constitutes a notice of disagreement, the Court has said that the Board determines de novo whether a document is a notice of disagreement. Fenderson v. West, 12 Vet. App. 119 (1999); Beyrle v. Brown, 9 Vet. App. 24, 27-28 (1996). In this regard, a notice of disagreement is a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudication(s). 38 C.F.R. § 20.201. A notice of disagreement requires no special wording or phrasing and is to be evaluated within the context of the overall record. Id.; see also Jarvis v. West, 12 Vet. App. 599, 561-62 (1999). A claimant or his representative must file a notice of disagreement with a determination of the AOJ within one year from the date that the AOJ mailed notice of the determination. 38 C.F.R. § 20.302(a). A notice of disagreement must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office. 38 C.F.R. § 20.300. If a notice of disagreement is not filed within the one-year time period, the AOJ decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d) (); 38 C.F.R.§§ 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). Analysis The facts pertinent to the Veteran’s current appeal are largely undisputed. His service department records reflect that his active duty included exposure to excessive noise in connection with his Military Occupational Specialty (MOS) as a tank crewman. On May 30, 2012, the AOJ received a formal claim from the Veteran to establish service connection for bilateral hearing loss, which the AOJ granted in a December 2012 rating decision; a 100 percent initial evaluation was assigned, effective from May 30, 2012 – the date that the AOJ received the Veteran’s formal claim seeking to establish service connection for this disability. Later that month, the AOJ sent the Veteran and his accredited representative a notice letter and copy of this rating decision at their respective addresses. The record is devoid of a NOD or new and material evidence pertinent to the effective date assigned for the award of service connection for this disability within the one-year appeal period of its issuance. On July 18, 2017, the AOJ received from the Veteran a formal NOD with the effective date assigned for the award of service connection for bilateral hearing loss by the AOJ in the December 2012 rating decision. In support of this filing, the Veteran submitted medical and administrative records showing that bilateral hearing loss was initially identified by his former employer, the New York City Fire Department, in January 1976 and ultimately led to his disability retirement based on Medical Board findings in September 1988. In the present case, the Veteran does not assert that he filed a timely NOD with regard to any aspect of the AOJ’s December 2012 rating decision; however, in statements accompanying his July 2017 NOD and subsequent substantive appeal, he set forth several reasons for his failure to do so. The Board will recount and address each of these reasons in the context of the present appeal. Initially, the Veteran claims that he was unaware that he could appeal the effective date of the award of service connection for bilateral hearing loss at the time of the December 2012 rating decision, as he did not have council or advisement from VA on this matter. The Board observes that, at the time of the December 2012 rating decision, the Veteran was represented by the same Veterans Service Organization (VSO) who currently represents him, and this VSO was also provided the December 2012 notice letter and rating decision. Further, the December 2012 notice letter informed the Veteran of his rights to appeal any aspect of the December 2012 rating decision, and the AOJ attached several forms by which the Veteran could do so. In addition, the controlling statutes, regulations, and case law are all matters of public record. A claimant’s ignorance of the law and/or his/her rights cannot be used as an excuse for failure to follow a promulgated regulation. Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App. at 265. VA regulations are "binding on all who seek to come within their sphere," regardless of whether a claimant has actual knowledge of what is in the regulations. Jernigan v. Shinseki, 25 Vet. App. 220 (2012). The Board observes the Veteran’s assertions that he did not feel that VA provided adequate advisement of his right to appeal the December 2012 rating decision or how to implement that right. To this point, the Federal Circuit has further held there is no general duty to notify potential claimants of benefits to which they might be entitled. Ollis v. Shulkin, 857 F.3d 1338, 1347 (Fed. Cir. 2017) ("[t]here is no due process right to notice regarding conditions that might in the future affect an individual veteran's right to monetary benefits (a right that is governed by statute and regulation) before the veteran incurs an injury or applies for such benefits."); see Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (holding that VA's failure to notify the veteran, at the time of discharge, of the VA benefits for which the veteran was eligible, did not provide a basis for equitable tolling or allow the grant of an earlier effective date under § 5110(b)(1)); see also Rodriguez v. West, 189 F.3d 1351, 1355 (Fed. Cir. 1999). At the November 2020 Board hearing, the Veteran also testified that his wife was gravely ill at the time of the December 2012 rating decision, and she died shortly thereafter. The Board is certainly sympathetic in this respect. To this point, the concept of “equitable tolling” applies where circumstances preclude a timely filing, despite any claimant’s exercise of due diligence. Unfortunately, there is no statutory or regulatory authority to equitably toll a filing deadline for a NOD. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201; see also Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) (noting that the statutory language for the NOD filing time limit is mandatory and jurisdictional in nature). In Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1198 (2011), the Supreme Court affirmed that statutory jurisdictional requirements are not subject to equitable tolling exceptions created by courts. Rather, only claims processing rules without jurisdictional consequences are subject to equitable tolling. Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003). To the above point, the requirement that a claimant file a timely NOD is a jurisdictional predicate to the Board's adjudication of a matter, as opposed to a claims processing rule, such that the filing of a NOD is not subject to the equitable tolling doctrine. Bowles v. Russell, 551 U.S. 205, 210 (U.S. 2007) (noting the difference between claims-processing rules and jurisdictional rules). In short, equitable tolling does not apply to the present case. Further, pursuant to 38 C.F.R. § 3.109, 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. 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). Having reviewed all the evidence of record, “good cause” has not been shown to warrant granting an extension to submit the NOD until July 2017. 38 C.F.R. § 3.109(b). The Veteran's primary arguments for not filing his NOD until July 2017 are the 2013 death of his wife and the 2017 discovery, while renovating his home, of evidence showing that bilateral hearing loss was diagnosed and disabling prior to his February 2012 claim. While the Board is compassionate about the death of the Veteran’s wife, his NOD regarding this matter was not filed until four years after such. Further, the Veteran’s ability to express timely disagreement with the effective date assigned for the award of service connection for bilateral hearing loss was not precluded by his lack of access to the evidence which he believes supports entitlement to this benefit. The Veteran and his representative have not provided any other arguments based on “good cause” to extend the filing deadline of the NOD. Again, the Board is sympathetic to the Veteran's appeal and particular circumstances; however, the Board is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). VA is bound by the applicable law and regulations as written. 38 U.S.C. § 7104 (c). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Parenthetically, the Board observes that much of the Veteran’s evidence and assertions in support of his appeal involve allegations concerning the dates that VA received his initial claim to establish service connection for bilateral hearing loss and when entitlement to this benefit initially arose. Those matters are germane to claims and appeals seeking earlier effective dates under 38 C.F.R. § 3.400, which would only support the Veteran’s appeal had the Board concluded that the July 2017 NOD was timely with respect to the December 2012 rating decision. Unfortunately, as explained in detail above, the Board finds that the facts do not support such a finding under the controlling laws. Finally, in light of the Board’s disposition in this matter, the December 2012 rating decision has become final regarding the effective date assigned for the Veteran’s service-connected bilateral hearing loss. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Accordingly, any aspect of this rating decision, such as the benefits sought by the Veteran, may be revised with a showing of Clear and Unmistakable Error (CUE) within the rating decision. Although this concept was briefly discussed at the November 2020 Board hearing, the Veteran and his representative have not made this type of claim with the required specificity. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). As such, the matter of entitlement to an earlier effective date for the award of service connection for bilateral hearing loss due to CUE in the December 2012 rating decision has not been raised by any party or the record, and thus, it is not currently before the Board. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). If the Veteran wishes to pursue the benefits he seeks by this means, he is encouraged to work with his representative in filing such a claim. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.