BVA9505353 DOCKET NO. 93-11 763 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES Whether the veteran timely filed a notice of disagreement with a May 1991 rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from February 1967 to February 1970. Service connection for an acquired psychiatric disorder, including post-traumatic stress disorder, was denied by rating decision in April 1987. The veteran was notified of this action, but did not appeal that determination. He submitted an application to reopen his claim of service connection for post- traumatic stress disorder in January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1992 determination by the Department of Veterans Appeals Philadelphia, Pennsylvania, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his September 1992 "notice of disagreement" with a May 1991 rating decision should be accepted as timely filed. 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. 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 veteran did not timely file a notice of disagreement with the RO's May 1991 determination. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been secured by the RO. 2. The veteran filed a claim for benefits in January 1991. 3. Entitlement to the benefits sought was denied by the RO in a May 1991 determination, and proper notice of the determination was issued on May 31, 1991. 4. An inquiry concerning the January 1991 claim was received from the veteran in July 1992. 5. A "notice of disagreement" with the May 1991 determination was received from the veteran in September 1992. CONCLUSION OF LAW An appeal of the May 1991 RO determination was not timely perfected by submission of a notice of disagreement. 38 U.S.C.A. §§ 5107, 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.302 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). An appeal consists of a timely filed notice of disagreement, from a claimant or his or her representative, expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result, in writing and, after a statement of the case has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201 (1994). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302(a) (1994). In January 1991 the veteran filed a claim for an increased rating for the residuals of histiocytoma of the right thigh, leg and ankle, and attempted to reopen his claim for service connection for post-traumatic stress disorder. A May 1991 rating decision denied entitlement to an increased rating for the residuals of histiocytoma of the right thigh, leg and ankle, and determined that new and material evidence had not been submitted to reopen the veteran's claim of service connection for post-traumatic stress disorder. On May 31, 1991 VA mailed a notice of the May 1991 rating decision to the veteran at 1129 S. 12th Street, Philadelphia, PA 19147, his last known address. On July 13, 1992 the RO received a letter of inquiry from the veteran concerning his January 1991 claim. He indicated that he had "been [in] jail" since he filed the claim, and notified the VA of his new address at AS1576, Drawer K, Dallas, PA, 18612- 0286. On August 11, 1992 VA mailed another notice of the May 1991 rating decision to the veteran at his new "Drawer K" address, and informed him of the proper procedures for reopening his claim. On September 4, 1992 a "Notice of Disagreement" with the May 1991 decision was received from the veteran. As specified above, the veteran had a period of one year, commencing with the mailing of the notification of determination on May 31, 1991, in which to file a notice of disagreement with the RO's May 1991 determination. Since a notice of disagreement was not timely filed, the May 1991 determination became final as of May 31, 1992. While the Board understands that the veteran began having legal difficulties sometime after his January claim was filed, it is noted that the May 31, 1991 notice of determination was not returned by the post office and that he had ample opportunity (the one year period) for his considered response. Accordingly, after careful review of all the evidence of record, the Board finds that the preponderance of the evidence confirms that the veteran did not timely file a notice of disagreement with the RO's May 1991 determination. Finally, since the negative evidence outweighs that which is positive on the merits of the issue, the veteran cannot be given the benefit of the doubt since no such doubt arises. 38 U.S.C.A. § 5107. ORDER The veteran did not timely file a notice of disagreement the January 1991 decision. The appeal is denied. WAYNE M. BRAEUER 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.