Citation Nr: 21041306 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-17 601 DATE: July 8, 2021 ORDER The appeal as to the timeliness of a notice of disagreement (NOD) with the July 2012 rating decision regarding entitlement to a total disability rating due to individual unemployability (TDIU) is dismissed as moot. FINDING OF FACT The issue of timeliness of the NOD to the July 2012 rating decision regarding entitlement to a TDIU is moot in light of the reconsideration of the July 2012 rating decision. CONCLUSION OF LAW The grant of the petition for reconsideration of entitlement to a TDIU renders moot the appeal regarding the timeliness of the NOD to the July 2012 rating decision regarding entitlement to a TDIU. 38 U.S.C. §§ 5107, 7105; 38 C.F.R. §§ 20.201, 20.302 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969. This issue was originally denied by the Board in September 2018. The Veteran appealed the September 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Memorandum Decision, the Court vacated the Board's decision and remanded it to the Board. In December 2020 the Board remanded the appeal in order for the agency of original jurisdiction's (AOJ) to address whether the May 2013 letter from the Veteran's therapist constitutes new and material evidence requiring readjudication of the original TDIU claim deferring the issue of whether the same letter can be accepted by VA as a timely NOD with July 2012 adjudication. As explained further below, the AOJ issued an Appeals Modernization Act (AMA) rating decision in December 2020, which in part reconsidered the July 2012 rating decision and again denied entitlement to a TDIU. The Veteran did not submit a request for further review of the January 2021 rating decision by filing a VA Form 20-0995 (Decision Review Request: Higher Level Review), VA Form 20-0996 (Decision Review Request: Supplemental Claim) or VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). Thus, the Veteran has not elected to proceed under the AMA system at this time. The Board notes that the appellant may submit a notice of disagreement (VA Form 10182) to the RO since he is still within the one-year time limit from the notification of the January 2021 rating decision. Whether a timely notice of disagreement (NOD) was filed following the July 2012 rating decision regarding entitlement to a total disability rating due to individual unemployability (TDIU) The July 2012 decision on appeal was issued prior to the effective date of the AMA, it is considered under the older Legacy system it replaced. Under the legacy system, an appeal consists of a timely filed NOD in writing, and after an SOC has been furnished, a timely filed substantive appeal. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. Prior to the AMA, a notice of disagreement was a written statement reasonably expressing disagreement with and a desire to contest any aspect of the adjudication(s). 38 C.F.R. § 20.201 (2018). In the legacy system, 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). In the provisions of 38 C.F.R. § 20.301(a), an NOD and/or a VA Form 9 may be filed by a claimant personally, or by his or her representative if a proper Power of Attorney (POA) or declaration of representation, as applicable, is on record or accompanies such NOD or VA Form 9. If the Veteran is deemed incompetent by VA or under disability and is unable to file either document, a fiduciary appointed by VA or the court, or a next friend may file on the Veteran's behalf. 38 C.F.R. § 20.301(b). A claimant or his representative must file a notice of disagreement with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a) (2018). A July 2012 rating decision denied, inter alia, entitlement to a TDIU. The Veteran maintains that a May 2013 correspondence drafted, signed, and submitted by his VA Veteran's Center counselor constitutes a valid notice of disagreement with a July 2012 rating decision. In November 2013, the RO found that an October 2013 notice of disagreement was untimely with regard to the July 2012 rating decision and did not constitute a written communication from the Veteran or his representative. This May 2013 statement/evidence was submitted within a year of the July 2012 rating decision and notification letter. See 38 C.F.R. § 3.156(b). As noted in the December 2020 supplemental statement of the case, the AOJ subsequently accepted the May 2013 correspondence as a request for reconsideration, and in a January 2021 rating decision readjudicated the claims, including the claim for entitlement to a TDIU, based on the May 2013 submission. In the January 2021 rating decision, the RO determined that the claim was reopened and again denied the claim for a TDIU. The Board notes that, based on the history of the case as described above, the January 2021 decision was a reconsideration of the July 2012 rating decision and a continuation of that prior claim. As the prior rating decisions that denied entitlement to a TDIU was reconsidered based upon the provisions of § 3.l56(c), the issue of whether there was a timely Notice of Disagreement to the July 2012 rating decision is rendered moot, and the claim is dismissed. If the Veteran wishes to pursue the issues addressed in the January 2021 rating decision, including entitlement to a TDIU, he and/or his representative may still do so by filing a notice of disagreement (VA Form 10182) within one year of the date of mailing of the notice of that decision. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.