6.1. Notice of Disagreement (NOD)
The Secretary has authority to decide all questions of law and fact necessary to determining the veteran's entitlement to benefits. 38 U.S.C. § 511(a); see Disabled Am. Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1320 (Fed. Cir. 2005). Once a decision is issued by a regional office, a claimant has the right to "one review on appeal to the Secretary." 38 U.S.C. § 7104. A claimant initiates the appeals process by filing a Notice of Disagreement from a regional office decision, which trigger's VA's duty to issue a Statement of the Case. 38 U.S.C. §§ 7105(a), (d)(1). Only after a Statement of the Case has been issued may a claimant file a Substantive Appeal to the Board. 38 U.S.C. § 7105(d)(1).
A claimant must file a Notice of Disagreement ("NOD") to initiate appellate review. 38 U.S.C. § 7105(a). An NOD is "[a] written communication from a claimant . . . expressing dissatisfaction or disagreement with an adjudicative determination by the [RO] and a desire to contest the result." 38 C.F.R. § 20.201; see Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002) ("[Section] 20.201 merely states that a veteran['s] NOD must include terms that can be reasonably construed as a desire for appellate review. . . . Assuming the veteran desires appellate review, meeting the requirement of § 20.201 is not an onerous task."); Crippen v. Brown, 9 Vet. App. 412, 424 (1996) (finding that a statement did not constitute an NOD because it "made no reference to any RO decision with which any disagreement was expressed and did not express an intent to appeal to the [Board]"). Although "special wording is not required, the [NOD] must be in terms which can be reasonably construed as disagreement with [the RO] determination and a desire for appellate review." 38 C.F.R. § 20.201. There is ample precedent for viewing a VA Form 21-4138 as an NOD and thereby initiating an appeal. See, e.g., Cuevas, 3 Vet. App. at 545; Isenhart v. Derwinski, 3 Vet. App. 177, 178 (1992). Whether a particular communication constitutes an NOD is a question of law that the Court reviews de novo. Palmer v. Nicholson, 21 Vet. App. 434, 436 (2007) (citing Lennox v. Principi, 353 F.3d 941, 945 (Fed. Cir. 2003)); Beyrle v. Brown, 9 Vet. App. 24, 28 (1996).
An NOD must "be filed within one year from the date of mailing of notice of the result of initial review or determination [and] . . . must be in writing and filed with" the "agency of original jurisdiction (AOJ)." The AOJ is the VA activity that made the decision, which usually the regional office handling the claim. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.302(a). The AOJ should be clear from the letterhead of the cover letter or the front page of the rating decision.
If a qualifying NOD is not filed within the one-year time period, the regional office decision "shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title." 38 U.S.C. § 7105(c); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) ("Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded."); Person v. Brown, 5 Vet. App. 449, 450 (1993) (failure to timely appeal an RO decision within the one-year period renders the decision final).
An NOD must indicate "a disagreement with a specific determination." Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998). A "broad NOD" "may confer jurisdiction over the entire request for benefits entitlement." Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). "Correspondingly, a narrow or specific NOD may limit the jurisdiction of the reviewing court to the specific elements of the disability request contested in the NOD." Id.; Ledford, 136 F.3d at 779; see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that in the absence of an NOD, the Board and ultimately the Court lack jurisdiction). "In determining whether a written communication constitutes an NOD, the Court looks at both the actual wording of the communication and the context in which it was written." Jarvis v. West, 12 Vet. App. 559, 561 (1999) (citing Drenkhahn v. Derwinski, 2 Vet. App. 207, 208 (1992); Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991)).
The Court reviews the Board's determinations regarding notification and timeliness of an NOD under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). As to the mailing of the RO's decision and notification letter, there is a presumption of regularity under which Government officials are presumed to "have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). Although the presumption may be rebutted by clear evidence that the mailing procedures were not regular or were not followed in a particular instance, "[a]n 'assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.'" Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting Jones v. West, 12 Vet. App. 98,102 (1998)).
There is a provision by which the Board can grant a claimant an extension of time to file an NOD "for good cause shown." 38 U.S.C. § 3.109(b). The grant or denial of an extension is committed to the Board's discretion; the Court reviews the Board's decisions under section 3.109(b) for abuse of discretion. Morgan v. Principi, 16 Vet. App. 20, 25 (2002); Corry v. Derwinski, 3 Vet. App. 231, 235 (1992).
In simultaneously contested claims, such as claims for an apportionment, the NOD "from the person adversely affected must be filed within 60 days from the date of mailing of the notification of the determination to him or her; otherwise, that determination will become final." 38 C.F.R. § 20.501(a); 38 U.S.C. § 7105A(a); cf. 38 U.S.C. § 7105(b)(1) ("Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing notice of the result of initial review or determination."). Additionally, for simultaneously contested claims, "[t]he date of mailing of the letter of notification will be presumed to be the same as the date of that letter for purposes of determining whether a Notice of Disagreement has been timely filed." 38 C.F.R. § 20.501(a). Moreover, the RO "shall promptly notify all parties in interest at the last known address of the action taken," directing attention to the fact that "notice of disagreement will not be entertained unless filed within the sixty day period prescribed by this subsection." 38 U.S.C. § 7105A(a).
Generally, an NOD postmarked before the expiration of the prescribed time period will be accepted as timely. 38 C.F.R. § 20.305(a). If the postmark is unavailable, it is presumed that any written document required to be "filed within a specified period of time," which includes an NOD, was mailed five days prior to the actual receipt of the document by VA, excluding Saturdays, Sundays, and legal holidays. 38 C.F.R. §§ 20.305(a), (b). The Board's determination regarding whether an appellant filed a timely NOD is a factual matter that the Court reviews under the "clearly erroneous" standard of review.
A claim remains pending if the Secretary fails to act on it or if he fails to provide the veteran with information or material critical to the appeal. See Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc) (citing Hauck v. Brown, 6 Vet. App. 518 (1994)); Norris v. West, 12 Vet. App. 413, 422 (1999); see Tablazon v. Brown, 8 Vet. App. 359 (1995) (determining that a 1975 regional office decision never became final, because without a Statement of the Case, the appellant was unable to file an appeal to the Board); see also 38 C.F.R. § 3.160(c) (defining a "pending claim" as "[a]n application, formal or informal, which has not been finally adjudicated").