Citation Nr: AXXXXXXXX
Decision Date: 06/30/21 Archive Date: 06/30/21
DOCKET NO. 210321-149318
DATE: June 30, 2021
ORDER
The issue of entitlement to service connection for a low back disability is dismissed.
FINDINGS OF FACT
1. In an April 2019 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim of entitlement to service for his low back disability. The notification of this decision informed the Veteran that if he disagreed with the decision and would like to appeal it, he must complete and return either a Decision Review Request: Supplemental Claim, VA Form 20-0995, a Decision Review Request: Higher-Level Review, VA Form 20-0996, or Appeal to the Board of Veterans' Appeals, VA Form 10182 by April 10, 2020, one year from the date of the notification of the rating decision.
2. In October 2019, the Veteran filed a Request for Higher-Level Review, VA Form 20-0996, in which he expressed a desire for review of the issue of entitlement to service connection for his low back disability, which was denied in the April 2019 rating decision.
3. In response to the October 2019 VA Form 20-0996, the AOJ issued the November 2019 Higher-Level Review rating decision denying the Veteran's claim for service connection for his low back disability. The RO again sent the Veteran a notification letter and informed the Veteran that if he disagreed with the decision and would like to appeal it, he must complete and return either a Decision Review Request: Supplemental Claim, VA Form 20-0995, a Decision Review Request: Higher-Level Review, VA Form 20-0996, or Appeal to the Board of Veterans' Appeals, VA Form 10182 by November 26, 2020, one year from the date of the notification of the rating decision.
4. In February 2021, the Veteran filed a Fully Developed Claim, VA 21-526EZ seeking entitlement to service connection for his low back disability.
5. In response to the February 2021 VA Form 21-526EZ, the AOJ sent March 2021 correspondence to the Veteran acknowledging the receipt of mail from the Veteran indicating that he would like to claim service connection for a disability that had previously been denied. The AOJ informed the Veteran that VA regulations required that he file this request on the proper form. The AOJ explained that he should review a Table enclosed in the correspondence regarding the proper form to use, and that he should then complete, sign, and return that Form to VA. Finally, the AOJ informed the Veteran that it would take no further action until it received his completed form.
6. The March 2021 correspondence from the AOJ to the Veteran acknowledged that VA had recently changed its review process based on the Veterans Appeals Improvement and Modernization Act of 2017 (Public Law 115-55), and explained that he could choose to have his prior claim reviewed as a Higher-Level Review, Supplemental Claim, or Board appeal. It instructed the Veteran to use the Table to decide which review lane best fit him. The correspondence sent to the Veteran did not explain that in order to file a Board appeal, the Veteran had to file VA Form 10182 within a year of the November 2019 rating decision. Finally, the AOJ informed the Veteran that it would take no further action until it received his completed form.
7. In response to the March 2021 correspondence, the Veteran filed a VA Form 10182. See March 2021 VA Form 101812. In April 2021, the Board mailed the Veteran a letter confirming that his appeal was docketed at the Board. See April 2021 BVA Letter.
8. The Veteran's March 2021 VA Form 10182 was not a timely appeal of the November 2019 rating decision.
CONCLUSION OF LAW
The criteria for dismissal of the claim of entitlement to service connection for a low back disability is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1969 to December 1970. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a November 2019 Higher-Level Review rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In dismissing the Veteran's current appeal, the Board acknowledges that, in March 2021, the AOJ issued a letter to the Veteran notifying him that his claim for service connection could not be processed at that time because his request was not filed on the proper form. With the Board's dismissal of his current appeal for lack of jurisdiction, this should not present an obstacle for the AOJ to process his service connection claim if he were to file a Decision Review Request: Supplemental Claim, VA Form 20-0995.
Entitlement to service connection for the Veteran's lower back disability is dismissed.
As indicated above in the Conclusion of Law section, the Board finds that it must dismiss the Veteran's claim because the Veteran's March 2021 VA Form 10182 was untimely. At the outset, the Board will explain the applicable regulatory provisions governing jurisdictional defects. Next, the Board will explain the applicable regulatory provisions governing timely Board appeal requests. Lastly, the Board will explain how the Veteran's claim should be filed in order to facilitate review of the November 2019 rating decision's denial of service connection for his low back disability.
Under 38 C.F.R. § 20.104(c), the Board may raise a question as to a "potential jurisdictional defect" and the Veteran and his representative must be afforded an opportunity to address the potential jurisdictional defect. The term potential is not defined in 38 C.F.R. § 20.104, but Black's Law Dictionary defines "potential" as an adjective meaning "[c]apable of coming into being." Black's Law Dictionary (10th ed. 2014).
First, the Board finds that this case presents a patent jurisdictional defect and that notice is not required under 38 C.F.R. § 20.104(c) prior to the Board's dismissing of the appeal. Specifically, 38 C.F.R. § 20.104(c) contemplates situations where the jurisdictional defect is a mere possibility or capable of coming into being. This provision is intended to address jurisdictional defects that are capable of being cured, such that dismissal of an appeal by the Board would not be appropriate. Here, however, the jurisdictional defect is patent and cannot be cured, such that notice and opportunity to correct the defect is not appropriate. Specifically, the Veteran did not submit a higher-level review request or Board appeal within a year of being notified of the November 2019 rating decision. As such, his appeal to the Board is not timely, and the Board cannot exercise jurisdiction over the matter. This a patent jurisdictional defect, not a mere possibility. Therefore, the Board finds that 38 C.F.R. § 20.104 (c)'s notice provision is inapplicable in this case.
Second, the Board finds that the Veteran's March 2021 VA Form 10182 was untimely; therefore, the Board lacks jurisdiction to consider the Veteran's claim on the merits.
A claimant who is dissatisfied with a decision by the AOJ may file a request for higher-level review under 38 C.F.R. 3.2601 or appeal the claim to the Board under 38 C.F.R. § 20.202 within a year of the AOJ's issuance of the notice of decision. 38 C.F.R. § 3.2500(a)(1). Alternatively, the Veteran may file a supplemental claim under 38 C.F.R. § 3.2501. Otherwise, that determination will become final. 38 C.F.R. § 19.52.
Here, the November 2019 Higher-Level Review rating decision became final on November 26, 2020, a year after the Veteran received notice of this decision. Prior to this date, the Veteran did not file a higher-level review request or a Board appeal. Therefore, the November 2019 rating decision became final and could only be reviewed by the Veteran filing a supplemental claim under 38 C.F.R. § 3.2501, which has not been done. The Board acknowledges that the Board itself processed the Veteran's March 2021 VA Form 10182 and docketed his appeal, but this action did not constitute the acceptance of jurisdiction over the appeal.
Having determined that the Veteran's Board appeal was untimely and that the Board may not accept jurisdiction over the claim of entitlement to service connection for a low back disability, the Board encourages the Veteran to file a Decision Review Request: Supplemental Claim, VA Form 20-0995 to further pursue his service connection claim for his low back disability. With the Board's dismissal of his current appeal for lack of jurisdiction, there no longer is an obstacle for the AOJ to process his service connection claim if he were to file a Decision Review Request: Supplemental Claim, VA Form 20-0995. The Board therefore beseeches the Veteran to file a VA Form 20-0995 to further pursue service connection for his low back disability.
Accordingly, the issue of entitlement to service connection for the Veteran's lower back disability is dismissed.
S.C. Krembs
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board S. Foster, Associate 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.