Citation Nr: 21012364 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-67 336 DATE: March 4, 2021 ORDER The Veteran did not file a timely notice of disagreement (NOD) with the June 25, 2013, decision that denied entitlement to Montgomery GI Bill-Select Reserve (MGIB-SR or Chapter 1606) educational assistance benefits; thus, the claim is denied. FINDING OF FACT In a June 25, 2013 decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for entitlement to Chapter 1606 educational assistance benefits. The Veteran was notified of this decision by a June 25, 2013, letter, which was not returned to VA as undeliverable. However, the Veteran’s disagreement with the denial of these benefits was received by VA for the first time on May 8, 2017, which was more than one year after the Veteran was notified of the June 2013 decision. CONCLUSION OF LAW The Veteran did not file a timely NOD with the June 2013 decision that denied entitlement to Chapter 1606 educational assistance benefits; thus, the June 2013 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from January 2008 to June 2008, and she had additional service in the Army Reserve. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual Board hearing in December 2020. A transcript of the hearing is included in the claims file. The Veteran contends that she is entitled to educational assistance benefits under MGIB-SR program. However, in order for the Board to address the merits of this contention, it must first determine whether the Veteran filed a timely NOD with the decision that denied such benefits. An appeal to the Board must be initiated by a NOD and completed by a substantive appeal (VA Form 9, Appeal to the Board) after a statement of the case (SOC) is issued to the claimant by VA. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. With respect to a NOD, a written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result, will constitute a NOD. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written must be considered in determining whether a communication constitutes a NOD. Jarvis v. West, 12 Vet. App. 559 (1999). All communications should be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). A veteran or his or her representative must file a NOD within one year from the date that the AOJ mailed notice of a decision. 38 C.F.R. § 20.302(a). If a NOD is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). While the Board may waive the issue of the timeliness of a substantive appeal, an untimely NOD is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). The issue of whether a NOD has been filed on time is appealable. If a veteran or his or her representative protests an adverse decision made by the AOJ with respect to the timely filing of a NOD, the veteran will be furnished an SOC on the issue of whether the NOD was timely. 38 C.F.R. §§ 19.34, 20.101(c). The essential facts in this case are not in dispute. The record shows that VA received the Veteran’s initial Application for VA Education Benefits in August 2009, in which she requested to receive benefits under the MGIB-SR program. After verifying the Veteran’s eligibility with the Department of Defense (DoD), the AOJ denied the Veteran’s claim in an unappealed September 2009 decision. Thereafter, on June 14, 2013, the Veteran again applied for Chapter 1606 educational assistance benefits. The record shows that the AOJ again contacted the DoD on June 18, 2013, to verify the Veteran’s eligibility for such benefits. In a decision, dated June 25, 2013, the AOJ again denied the Veteran’s claim for entitlement to MGIB-SR educational assistance benefits based on the DoD’s determination that she was not entitled to such benefits as her eligibility was suspended, effective February 24, 2009. The Veteran was notified of this decision by a June 25, 2013, letter. The record does not show that this notification was returned to VA as undeliverable. In fact, the Veteran stated in June 2017 that she spoke with VA staff after receiving the June 2013 letter and was told to wait until her benefits were reinstated to reapply for VA educational assistance benefits. Thus, the evidence shows that the Veteran received the June 25, 2013, notification. However, the record also shows that the Veteran’s disagreement with the June 25, 2013, decision that denied Chapter 1606 educational assistance benefits was received by VA more than one year after the Veteran was notified of the June 2013 decision. Specifically, the Veteran submitted an online NOD on May 8, 2017, though the VA eBenefits portal and requested that her eligibility to VA educational assistance benefits be reinstated. In support of her claim, she submitted an exception to policy memorandum from the DoD. She noted that over the previous four years, she was going through the process of having her incentives reinstated and that she extended her service obligation twice in order to qualify for education benefits. She requested that her benefits be awarded from when she first applied. Thereafter, the AOJ sent the Veteran a letter on May 10, 2017, informing her that she could not appeal the June 25, 2013, decision denying entitlement to Chapter 1606 educational assistance benefits because that decision became final on June 25, 2014, i.e., one year after it was issued and not appealed. In the June 2017 NOD on the issue of timeliness of the May 8, 2017, NOD, the Veteran stated that she spoke with VA staff after receiving the June 25, 2013, denial letter and was told to wait until her benefits were reinstated with DoD and then to reapply for VA education benefits. She asserted that she waited until her benefits with the Army were reinstated, which took more than four years to complete. She further asserted that she was told by VA staff that there was no need to appeal the decision until the suspension of her benefits was lifted because it would not change the outcome. She again noted that she extended her service obligation twice in order to try to use her VA education benefits. She stated that she communicated with various VA representatives and was told to wait until she had the necessary paperwork to disagree and to change the education suspension. The Board notes that the Veteran made very similar contentions during the December 2020 Board hearing. Given this evidence, the Board finds that a NOD was not timely filed in response to the June 2013 decision denying entitlement to Chapter 1606 educational assistance benefits. The Board acknowledges the Veteran’s contentions that after receiving the June 2013 decision, she was told by VA staff to wait to reapply for VA educational assistance benefits and that there was no need to appeal VA’s decision until the suspension of her benefits was lifted as it would not change the outcome. However, VA is not liable for her reliance on said erroneous information dispensed or omitted by a VA employee. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995). Likewise, the Court has held that erroneous advice given by a government employee cannot be used to estop the government from denying benefits. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The overall record, including the Veteran’s own statements, shows that she did not appeal the June 25, 2013, decision until May 8, 2017, or approximately more than three and a half years after being notified that her claim for entitlement to MGIB-SR educational assistance benefits was denied. As the May 8, 2017, NOD was not timely to appeal the June 2013 decision that denied entitlement to Chapter 1606 educational assistance benefits, the June 25, 2013, decision is final. 38 C.F.R. §§ 20.204(c), 20.302. No earlier communication from the Veteran was received after the June 25, 2013, letter that could reasonably be construed as a timely NOD with the denial of MGIB-SR educational assistance benefits. Accordingly, the Veteran’s claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.