BVA9505423 DOCKET NO. 93-06 199 ) DATE ) ) In connection with the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Whether Jesusa, is eligible for Department of Veterans Affairs (VA) educational assistance benefits under Chapter 35, Title 38, United States Code. ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to December 1969. This case is before the Board of Veterans' Appeals (Board) in connection with a February 1992 determination by the San Francisco, California, Regional Office (RO). A statement of the case was issued in November 1992. Jesusa, the veteran's spouse, is not represented in connection with this case. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file and Linda's (the veteran's ex-wife's) Chapter 35 file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the Board does not have jurisdiction to review Jesusa's claim for eligibility for VA educational assistance benefits under Chapter 35, Title 38, United States Code. FINDINGS OF FACT 1. In January 1992 Jesusa filed a claim for Chapter 35 benefits as spouse of the veteran. 2. In February 1992 the RO notified Jesusa that she was not eligible for Chapter 35 benefits. She was furnished appellate rights. 3. Jesusa has not filed a notice of disagreement from the February 1992 RO decision denying eligibility for VA educational assistance benefits under Chapter 35, Title 38, United States Code. CONCLUSION OF LAW Jesusa has not initiated an appeal from the February 1992 RO decision denying eligibility for VA educational assistance benefits as spouse of the veteran under Chapter 35, Title 38, United States Code, and the Board therefore does not have jurisdiction to review Jesusa's claim for this benefit. 38 U.S.C.A. §§ 7105, 7108 (West 1991); 38 C.F.R. § 20.200 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION An appeal to the Board is initiated by a timely filed notice of disagreement. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1994). A claimant has a period of one (1) year from the date of notification of the RO's decision to file a notice of disagreement. 38 U.S.C.A. § 7105(b)(1) (West 1991). After receipt of a notice of disagreement, the RO undertakes such development as it deems proper and then, if such action does not resolve the disagreement, furnishes the claimant with a statement of the case. 38 U.S.C.A. § 7105(d)(1) (West 1991). In order to complete or perfect the appeal, the claimant must file a substantive appeal within sixty (60) days of the mailing date of the statement of the case, or within the remaining time, if any, of the one year period beginning on the date of notification of the RO's decision. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1994). An application for review on appeal shall not be entertained unless it is in conformity with these procedures. 38 U.S.C.A. § 7108 (West 1991). In the present case, Jesusa filed an application for Chapter 35 benefits in January 1992. Notice of the RO's decision was addressed to Jesusa and mailed to her in February 1992. In September 1992, the RO received a written communication from the veteran (Jesusa's spouse) indicating disagreement with the RO's decision. The RO issued a statement of the case in November 1992, and an Appeal to Board of Veterans Appeals (VA Form 9) was received from the veteran in January 1993. However, the underlying fact of critical importance in this case is that Jesusa was the claimant for Chapter 35 educational assistance benefits. See 38 C.F.R. §§ 21.3030, 21.3031 (1994). The applicable law and regulation clearly limit those who may file a notice of disagreement to a claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent selected by the claimant or the claimant's legal guardian. 38 U.S.C.A. § 7105(b)(2) (West 1991); 38 C.F.R. § 20.301 (1994). The veteran is not a proper party to file a notice of disagreement on Jesusa's behalf unless it is shown that he is acting in one of these capacities. Since Jesusa has never filed a notice of disagreement and since it has not been shown that the veteran was authorized by statute and/or regulation to file a notice of disagreement for her, an appeal has never been initiated in this case. Accordingly, the Board does not have jurisdiction to review Jesusa's claim for Chapter 35 benefits, and the case is, therefore, dismissed. 38 U.S.C.A. § 7108 (West 1991). ORDER The case is dismissed. E. M. KRENZER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.