Citation Nr: 22017916 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 19-03 318A DATE: March 27, 2022 ORDER The appeal as to whether a timely and valid Notice of Disagreement (NOD) was filed in response to the June 12, 2015, and June 22, 2015, rating decisions is denied. FINDINGS OF FACT 1. The agency of original jurisdiction (AOJ) provided the VA Form 21-0958 for initiation of appeals in the notice letters for the June 12, 2015, and June 22, 2015, rating decisions. 2. Neither the Veteran nor his attorney filed a timely and valid Notice of Disagreement within a year of the notification of the June 12, 2015, and June 22, 2015, rating decisions. 3. The Veteran's August 24, 2015, fax was an "other communication" under 38 C.F.R. § 20.201(a)(5). CONCLUSION OF LAW The Board has no jurisdiction to adjudicate appeals from the June 12, 2015, or June 22, 2015, rating decisions. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.24, 20.200, 20.201, 20.302 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Air Force on active duty from September 1970 to April 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2017 decision issued by the AOJ. In December 2021, the U.S. Court of Appeals for Veterans' Claims (Court) remanded this issue pursuant to a joint motion for remand. In its remand order, the Court directed the Board to consider the applicability of 38 C.F.R. § 19.24, and whether VA had a duty to provide notice to the Veteran that it had not received an NOD form with the August 24, 2015 fax. Effective March 24, 2015, VA amended its regulations regarding appeals and defined an appeal as consisting of "a timely filed Notice of Disagreement submitted in accordance with the provisions of § 20.201" and a timely filed Substantive Appeal. See 79 Fed. Reg. 57,660 (Sept. 25, 2014); 38 C.F.R. § 20.200 (2015). 38 C.F.R. § 20.201(a) requires a claimant to use the form provided by the AOJ to initiate an appeal when one is provided by the AOJ. See 79 Fed. Reg. 57,660 (Sept. 25, 2014); 38 C.F.R. § 20.201(a)( 1) (2015). For appeals of compensation claims in June 2015 through June 2016, this required form was VA Form 21-0958. 38 C.F.R. § 20.201(a)(1) provided: For every case in which the agency of original jurisdiction (AOJ) provides a form for the purpose of initiating an appeal, a Notice of Disagreement consists of a completed and timely submitted copy of that form. VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction 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) (2015). Part (5) of 38 C.F.R. § 20.201(a) clarified that "the filing of an alternate form or other communication will not extend, toll, or otherwise delay the time limit for filing a Notice of Disagreement as provided in § 20.302(a)." 38 C.F.R. § 20.201(a)(5) (2015). 38 C.F.R. § 20.302(a) established a one-year deadline for filing a Notice of Disagreement, except in cases of simultaneously contested claims, where there is a shorter deadline. 38 C.F.R. § 20.302(a) (2015). 38 C.F.R. § 19.24, effective March 24, 2015, directed the AOJ as to what actions it must take on Notice of Disagreements that were required to be filed on a standardized form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014); 38 C.F.R. § 19.24(b)(1) (2015). Subsection (b) of the regulation stated that: In cases governed by paragraph (a) of § 20.201 of this chapter, if VA determines a form filed by the claimant is incomplete and requests clarification, the claimant must timely file a completed version of the correct form in order to initiate an appeal. A claimant is not required to correct the filing of an incomplete form by filing a completed version of the correct form unless VA informs the claimant or his or her representative that the form is incomplete and requests clarification. See 79 Fed. Reg. 57,660 (Sept. 25, 2014); 38 C.F.R. § 19.24(b)(1) (2015). At issue here is whether the Veteran, who was represented by an attorney, initiated an appeal on the June 12, 2015, and June 22, 2015, rating decisions. In the June 12, 2015, rating decision, the AOJ rendered a decision on 16 claims for compensation. In the June 15, 2015, notification letter, the AOJ notified the Veteran and his attorney of the decision. Included in that notification letter were instructions on how to appeal the decision and a VA Form 21-0958 "Notice of Disagreement." Similarly, in a June 22, 2015, rating decision, the AOJ denied the Veteran's claim for increased rating for the residuals of a varicocelectomy. In the June 24, 2015 notification letter, the AOJ provided instructions on how to appeal the decision and enclosed a VA Form 21-0958. By operation of 38 C.F.R. § 20.302, the Veteran had one year from the date that the AOJ mailed him notice of the rating decisions to file a Notice of Disagreement on a VA Form 21-0958. Here, the Veteran had until June 15, 2016, and June 24, 2016, to file the VA Form 21-0958s that had been provided to him to initiate an appeal. On August 24, 2015, the Veteran's attorney faxed a letter dated August 21, 2015, to VA entitled "Notice of Disagreement in Response to Rating Decision Dated 6-15-15 & 6-24-15." The letter was addressed to the Appeals Team in St. Petersburg, Florida, and the fax header shows that it was sent on August 24, 2015 at 4:16PM. The header also shows that it was page one of one. The body of the letter advised the recipient that Woods and Woods LLP was representing the Veteran and provides the name and contact number of an employee who could be contacted for question or additional information. It did not refer to the filing of an NOD In the lower left-hand corner was a notation of "Enclosure(s)," but the nature of such weas not identified. The letter was signed by an attorney. In February 2017, VA notified the Veteran and his attorney that the letter submitted in August 2015 was not a valid NOD. In March 2017, the Veteran's attorney responded explaining that it appeared that they had tried to file an NOD but only the cover page was transmitted, and attached a copy of the fax communication report generated by the Veteran's attorney's fax machine. The "Communication Result Report" generated by the Veteran's fax machine on August 24, 2015, and emailed to the contact person named in the letter dated August 21, 2015, showed that a one page fax had been successfully sent to VA on August 24, 2015. In July 2017, the Veteran's attorney faxed a cover letter and VA Form 21-0958 NOD indicating disagreement with the February 2017 decision. The cover letter, which was entitled "Notice of Disagreement in Response to NOD Rejection letter dated 2/24/17" referenced "the attached Notice of Disagreement" and the intent to file such. It also included a notation of "Enclosure(s)" in the lower left-hand corner. There was one enclosure a VA Form 21-0958. The Veteran's attorney contends that they intended to fax a cover letter and VA Form 21-0958 in August 2015, but due to a transmission error, only the first page of the multipage correspondence was transmitted. The Veteran's attorney asserts that his office did not become aware until receiving the February 2017 notification letter that only one page had been sent to VA on August 24, 2015. The attorney further argues that the August 24, 2015, letter should be accepted as a timely NOD to the June 12, 2015, and June 22, 2015, rating decisions. First, as the AOJ had provided a form for the purpose of initiating an appeal, a VA Form 21-0958, with the notification letters for the two June 2015 rating decisions, regulations required the Veteran to submit a VA Form 21-0958 to initiate an appeal. But the August 24, 2015, transmission was a letter not on VA Form 21-0958. Therefore, it was not a Notice of Disagreement as defined by 38 C.F.R. § 20.201(a)(1). Since 38 C.F.R. § 19.24 only applies to Notices of Disagreement as defined by §20.201(a), the letter submitted by the Veteran's attorney did not trigger the provisions of 38 C.F.R. § 19.24(b), which imposes a duty on VA to contact the Veteran to notify them of the filing of an incomplete form. Rather, the August 24, 2015, letter was the type of alternate communication that 38 C.F.R. § 20.201(a)(5) specifically excluded from the definition of a Notice of Disagreement. The plain language of 38 C.F.R. § 19.24 limits its application to "timely Notice of Disagreement[s] in accordance with the requirements of §20.201(a)." 38 C.F.R. § 20.201(a)(5) expressly excludes alternate forms or other communications from extending, tolling or otherwise delaying the time limit for filing a Notice of Disagreement. The Board finds that 38 C.F.R. § 19.24(b) does not apply to the "other communication" filed by the Veteran's attorney on August 24, 2015; therefore, VA did not have an obligation to provide notice that completeindeed, anyNOD forms had not been received. Only the receipt of an incomplete form triggers that regulatory duty. The Board would note additionally that the August 2015 correspondence does not clearly identify an intent to file an NOD at that time; it merely states the attorney is the representative in the body, and lists unspecified enclosure(s). A logical conclusion is that the submission was limited to clarification of representation, particularly as in the July 207 cover letter for NOD, the disagreement was actually addressed in the body of the form. The Board also has considered 38 C.F.R. § 3.109(b), which states that time limits within which claimants are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Neither the Veteran nor his attorney has provided sufficient evidence of good cause to extend the time limit. The Communication Result Report in the Veteran's attorney's file shows that only one page was sent and transmitted on August 24, 2015. The Veteran's attorney's failure to recognize the importance of this information, which was in his possession within minutes of the fax transmission, does not rise to the level of good cause. See Rios v. Nicholson, 20 Vet. App. 104 (2006). An untimely filed or invalid NOD 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). In sum, the June 2015 rating decisions were issued after March 24, 2015. Consequently, any NOD to these decisions must have been provided on VA Form 21-0958 within one year of the June 2015 notification letters. This did not occur. Neither the Veteran nor his attorney requested an extension of time to file and NOD, and the evidence does not demonstrate that there was good cause for the failure to file a timely NOD. The failure of an attorney to ensure that the proper form was timely submitted does not rise to the level or good cause or relieve him of the requirement of filing the proper form. Consequently, the Board finds that the Veteran did not file a timely NOD in response to the June 12, 2015, and June 22, 2015, rating decisions. Therefore, the appeal as to the timeliness of the NOD is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.