Citation Nr: 0311253 Decision Date: 06/02/03 Archive Date: 06/10/03 DOCKET NO. 02-01 086A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Non-receipt of a retroactive payment in the amount of $3,552 from a rating decision dated in September 1983 awarding non service-connected pension benefits effective February 1, 1983. REPRESENTATION Veteran represented by: Clayte Binion, Attorney at law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran served on active duty from November 1945 to February 1949. This case comes to the Board of Veterans' Appeals (the Board) on appeal from an adverse decision issued in November 2000 from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Matter currently under appellate review In March 1998, the Board remanded the issue of the veteran's entitlement to a waiver of overpayment of pension benefits in the amount of $1,791 to the RO for readjudication under the provisions of Public Law 101-237. In a decision issued in May 1998, the Committee on Waivers and Compromises of the RO granted the veteran's request for waiver of the $1,791 overpayment. The record shows that the overpayment in question was refunded in full to the veteran. Accordingly, that issue (Board Docket # 97-20 089A) is no longer in dispute and will not be further addressed in this decision. The issue listed on the title page was referred to the RO by the Board in the Introduction section of its March 1998 remand. As noted above, an adverse decision was issued in November 2000. Following submission of a timely notice of disagreement by the veteran's attorney in November 2000, the veteran through subsequently filed a substantive appeal (VA Form 9) in June 2001 which the basis of the appeal was alleged to be the RO's "error in failing to issue a SOC following the filing of a [notice of disagreement]". VA Regional Counsel sent a letter to the veteran's attorney in January 2002 which advised that the letter would be considered the statement of the case on this issue. The veteran's attorney subsequently indicated that he wished to [continue the] appeal. Thereafter, a supplemental statement of the case was furnished to the veteran in September 2002, following receipt by the RO of additional information and evidence. Following transfer of the claims file to the Board in December 2002, this issue was assigned a new docket number (Board Docket # 02-01 086A) because the waiver issue discussed above was granted in full and the matter of the non-receipt of the retroactive payment of the $3,552 pension check constitutes a separate appeal. It is further noted that a related issue involving the alleged non-receipt of pension checks in the amount of $68 in 1993 was addressed by the RO in its November 2000 decision and by the Regional Counsel letter/statement of the case of January 2002. There is no indication that the veteran perfected an appeal as to this matter, and hence, that matter is not before the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2002); see Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [appellate review is perfected by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. The veteran was awarded VA non service-connected pension benefits by rating decision in September 1983, effective from February 1, 1983. 2. A check for retroactive pension benefits in the amount of $3,552 was issued on October 1, 1983 and mailed to the veteran's address of record; there is no evidence showing that this check was returned by the Postal Service as undeliverable. 3. No information or evidence concerning the alleged non- receipt of the $3,552 pension check appears of record until May 1990, at which time the veteran's former representative indicated in a memorandum to a United States Senator that the veteran had claimed he never received the $3,552 check. 4. The veteran filed a formal claim in January 1994 specifically alleging that he did not receive the October 1983 check in the amount of $3,552. 5. Replacement or re-issuance of the October 1, 1983 check in the amount of $3,552 is not authorized because the veteran's claim was filed more than six years after accrual of the claim. CONCLUSION OF LAW The veteran's claim alleging non-receipt of the October 1, 1983 VA pension award check in the amount of $3,552 was not timely filed and he is therefore barred from seeking entitlement to replacement or re-issuance of this check. VAOPGCPREC 19-95, 61 Fed. Reg. 10063 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. The VCAA The Board first notes that because this case is being decided solely based on the application of the pertinent law to the facts, as fully detailed below, the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. § 5103A (West 2002) (VCAA) is not for application. Specifically, the Board finds that since the material facts are not in dispute, there is no reasonable possibility that further assistance under the VCAA would aid in substantiating the claim. See Manning v. Principi, 16 Vet. App. 534, 542-3 (2002) and cases cited therein [the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter]. Factual background The evidence of record shows that the veteran was awarded non service-connected pension benefits by rating decision in September 1983, effective from February 1, 1983. A letter was sent to the veteran to his address of record informing him of this award. There is no evidence showing that the letter was returned as undeliverable by the United States Postal Service. The evidence of record also shows that a check for retroactive pension benefits in the amount of $3,552 was issued on October 1, 1983 and mailed to the same address. There is no evidence showing that this check was returned by the Postal Service as undeliverable. Thereafter, the record shows that the veteran contacted the RO by telephone in November 1989 and requested an audit of his pension account. At that time, he had a pending claim for waiver of an overpayment and it appears he was requesting this audit in connection with that claim. The record does not indicate that he was at that time alleging non-receipt of any pension checks mailed to him. In response, the RO sent him a detailed audit in December 1989, which specifically indicated that he was paid $3,552 on October 1, 1983. He did not at that time file any response indicating that he was not paid this amount. No information or evidence concerning the alleged non-receipt of the $3,552 pension check appears of record until May 1990, at which time the veteran's former representative of record sent a memorandum to a United States Senator requesting assistance in connection with the aforementioned waiver of overpayment claim. In this memorandum, the representative stated on page 2 that the veteran had claimed he never received the $3,552 check. The record also shows that the veteran appeared at a hearing at the RO in December 1991, also in connection with his then pending waiver claim, and testified that it was "proven" he was not paid the $3,552 retroactive award of pension benefits. See the December 1991 Hearing Transcript at page 27, of record. The Board notes that he did not provide any specific details concerning how it was "proven" he did not receive this check. It does not appear that the RO responded to the representative's statement of May 1990 or the veteran's testimony of December 1991. The veteran filed a formal claim in January 1994 specifically alleging that he did not receive the October 1983 check in the amount of $3,552. He claimed instead that the first check he received was in November 1983 in the amount of $444.00. See Statement in Support of Claim, VA Form 21-4138, dated January 14, 1994. [The above-cited December 1989 audit report shows that $444 was the second payment made on his pension account and that the retroactive payment for $3,552 which is the subject of this appeal was the first payment.] The veteran alluded to the alleged non-receipt of this check in additional statements (June 1997) and hearing testimony (October 1996 and August 1997) offered in connection with his waiver claim. As noted in the Introduction above, in the Board's March 1998 remand of the waiver issue, since resolved, this matter was referred to the RO. The record shows that a second audit of the veteran's pension account was completed in June 2000; this audit indicated that the initial payment of a retroactive award of pension benefits was made on October 1, 1983 in the amount of $3,552. In its letter-decision of November 2000, the RO cited to the Barring Act, 31 U.S.C. § 3702(b), in support of its decision that the veteran was barred from filing a claim against the Government because his January 1994 claim alleging non- receipt of the October 1983 pension check was filed more than six years after payment was made on the check. Further details concerning this Act will be set forth below, but in substance, the Barring Act states that a claim against the Government presented to the Comptroller General of the Department of Treasury under sec. 3702 for settlement which is not received by the Comptroller General within six years after the claim accrues is barred. The record further shows that an Internal Memorandum dated in January 1998 that had been prepared by the RO's Regional Counsel addressing the question of limitations on payability of non-benefit checks canceled pursuant to the Competitive Equality Banking Act of 1987 was associated with the veteran's claims file. In that memorandum, which does not appear to be specific to any particular claim, VA Regional Counsel indicated that it was VA's policy that for veterans' benefits checks there was a six-year limitation running from the date of issuance of the check during which time a payee- beneficiary could file a claim alleging non-receipt or non- payment of the check. The Regional Counsel further indicated that it believed this policy was in accord with applicable law, specifically, a Comptroller General opinion, 73 Comp. Gen. 292 (1994), and VA General Counsel opinions, VAOPGCPREC 19-95 (July 1995) and Undigested Opinion of January 19, 1996, copies of which were attached with the memorandum and which will be further discussed below. As noted above, the veteran's attorney filed a notice of disagreement in November 2000 in response to the RO's letter- decision of that month. Thereafter, the attorney filed a substantive appeal in June 2001 arguing that the appeal was being pursued on the basis of the RO's failure to furnish the veteran a statement of the case addressing the allegation of non-receipt of the $3,552 pension check. In response, the RO's Regional Counsel sent the attorney a letter in January 2002, which indicated that the veteran's claim for re- issuance of the $3,552 check was barred by law and regulations of the Department of Treasury and therefore was not an appealable claim to the Board or the United States Court of Appeals for Veterans Claims (the Court), as it did not involve application of VA law and regulations. This letter further advised the attorney that the letter itself constituted the statement of the case with respect to this matter. In subsequent communications to the RO, the veteran through his attorney indicated that he wished to [continue the] appeal. The record also shows that in January 2001, the RO initiated a tracer action on the October 1, 1983 check in the amount of $3,552. In a response received the same month, the Department of Treasury notified the RO that the check in question had been negotiated, but that a copy of the check was no longer available. On this latter point - availability of a copy of the check, the Board notes that a "Frequently Asked Questions" print-out from the Treasury Department's website was associated with the veteran's claims file, and this print-out indicated that the retention period for paid Treasury checks was six years, seven months, following which the original check, check copy or check information was no longer available. Regarding the Treasury Department's tracer action, the record shows that the veteran's attorney was later advised that the code, "25 Paid" noted on the tracer report was simply the numeric code Treasury used for all inquiries that resulted in the "No Further Information Available" descriptive response which followed the denotation of that code. The RO furnished the veteran and his attorney a supplemental statement of the case in September 2002, which addressed the development matters undertaken with regard to this issue and informed the veteran that the VA had fulfilled its obligation regarding payment of the retroactive award of pension benefits in the amount of $3,552 by check issued by the Department of Treasury on October 1, 1983. Analysis The veteran maintains that he never received the check for retroactive pension benefits. In essence, he has demanded that VA either prove to him that he was paid or pay him the $3,552. Jurisdiction of Board to decide claim As noted above, it appears that VA Regional Counsel has taken the position that the matter here under consideration, whether or not the veteran received a check from VA, is not appealable to the Board or to the Court. Initially, the Board finds that the issue on appeal, non-receipt of a retroactive payment in the amount of $3,552 from a rating decision dated in September 1983 awarding non service- connected pension benefits effective February 1, 1983, is an appealable claim subject to the Board's jurisdiction. The Board of course takes no position as to whether this matter is appealable to the Court. But see 38 U.S.C. § 7252. The law provides that the Secretary of VA shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. See 38 U.S.C.A. § 511(a) (West 2002) (emphasis added). The law provides further that the jurisdiction of the Board extends to all questions in a matter which under section 511(a) is subject to a final decision on appeal by the Secretary. See 38 U.S.C.A. § 7104(a) (West 2002). The applicable regulation provides that the includes, but is not limited to, a considerable "laundry list" of subjects. The matter of non-receipt of a check from VA is not specifically mentioned. See 38 C.F.R. § 20.101 (2002). The Board has been unable to identify any similar issue which has been adjudicated by it or by the Court. However, because the regulation also includes the broad "catch all" phrase "is not limited to", it would appear reasonable to conclude that the regulation cited above would encompass a claim like this one where the veteran alleges that he did not receive monies from VA that he was legally entitled to. Moreover, although VA law and regulations are not directly for application here, this case nevertheless involves application of "a law that affects the provision of benefits by the [VA]" within the meaning of 38 U.S.C.A. § 511(a). This statutory language is read by the Board as providing authority for VA to decide an issue under non-VA law and regulations where those laws and regulations affect the provision of VA benefits. In addition to the above, it appears from the findings and conclusions reached by the VA's General Counsel in precedent opinion VAOPGCPREC 19-95, which will be discussed in greater detail below, that a veteran's claim alleging non-receipt of a Treasury check issued in connection with payment of VA benefits is a matter which can be addressed by VA. Accordingly, the Board concludes that it has jurisdiction to a issue a final decision on the veteran's claim alleging non- receipt of the October 1983 pension check. The Board will therefore proceed to a disposition of the appeal. Summary of pertinent law: VAOPGCPREC 19-95, the Barring Act, 31 U.S.C. § 3702(b), and Competitive Equality Banking Act of 1987 As noted above, VA's General Counsel issued a precedent opinion in July 1995 addressing the issue of time limitations on claims resulting from non-negotiation of veterans' benefit checks by the payee. See VAOPGCPREC 19-95, dated July 12, 1995. In pertinent part, the VA General Counsel held that the six-year limitation period under the Barring Act, 31 U.S.C. § 3702(b), is generally applicable to claims for unpaid veterans' benefits resulting from non-negotiation of benefit checks by the payee, and is applicable as well to claims based upon veterans' benefits checks claimed to have been lost, stolen, cashed on a forged endorsement, or never received. In discussing the relevant legislative history, the General Counsel first noted that the Competitive Equality Banking Act of 1987 (CEBA) provided for cancellation of all unpaid Treasury checks issued prior to October 1, 1989. However, the General Counsel also noted that the CEBA included a saving clause, codified at 31 U.S.C. § 3702(c)(2), which stated, as amended, that nothing in the provision pertaining to cancellation of stale checks "affects the underlying obligation of the United States, or any agency thereof, for which a Treasury check was issued." The General Counsel went on to cite Veterans Benefits Administration (VBA) Circular 20-92-12 (May 4, 1992), for the authority that VA had the underlying obligation to settle all claims submitted by beneficiaries for checks issued prior to October 1, 1989, that were canceled by the Department of Treasury. The General Counsel added that this VBA circular was consistent with its VAOPGCADV 45-90 (O.G.C. Adv. 45-90), which held that VA remained obligated on an underlying obligation to a payee whose check was canceled pursuant to the CEBA due to late presentation. Notwithstanding the above, the General Counsel pointed out that the advisory opinion did not consider the applicability of the so-called Barring Act, ch. 788, 54 Stat. 1061 (1940), which as noted above is codified, as amended, at 31 U.S.C. § 3702(b). As alluded to above, the General Counsel explained that section 3702(b) of the Barring Act provides that a claim against the Government presented to the Treasury's Comptroller General under section 3702 for settlement which is not received by the Comptroller General within six years after the claim accrues is barred. The Barring Act was intended to relieve the Government of the need to retain and review old records for the purpose of settling old claims. The General Counsel added that the term "claim" had been interpreted to include an original claim for money not received, i.e., a claim on the underlying obligation liquidated by a Treasury check. However, prior to the passage of the CEBA, the General Counsel explained further that the Barring Act had no practical effect with regard to claims based on uncashed Treasury checks which had been issued to satisfy obligations of the Government. This was the case because prior to the CEBA, checks drawn on the U. S. Treasury generally could "be paid at any time." See 31 U.S.C.A. § 3328(a)(1) (1983). As a result, the General Counsel pointed out that unpaid Treasury checks could be cashed at any time, even if a claim on the underlying obligation was barred by the Barring Act's six-year statute of limitations. The CEBA, however, established a time limit on the negotiability of Government checks. As noted above, under the CEBA, Treasury checks issued prior to October 1, 1989, have been canceled; specifically, section 1004(b) of the CEBA amended section 3702(c) to require that "[a]ny claim on account of a Treasury check shall be barred unless it is presented to the agency that authorized the issuance of such check within 1 year after the date of issuance of the check or the effective date of this subsection, whichever is later." The General Counsel went on to explain that the Treasury's Comptroller General subsequently held that the obligation underlying a Treasury check which had become nonnegotiable pursuant to the CEBA was subject to the six-year limitation imposed by 31 U.S.C. § 3702(b)(1). See Op. Comp. Gen. B- 244431.2 2-4 (Sept. 13, 1994) (cite as 73 Comp. Gen. 292, 1994 WL 508956 (C.G.)); see also Op. Comp. Gen. B-244431 (Oct. 8 1991) [the conclusions of which were affirmed by Op. Comp. Gen. B-244431.2]. The Comptroller General further explained in its opinion that the CEBA saving clause, 31 U.S.C. § 3702(c)(2), merely provided that the CEBA had no effect on the underlying obligation, i.e., that the CEBA did not terminate, preserve, or resurrect the obligation underlying a Treasury check. The VA General Counsel next quoted a relevant provision of the Comptroller General's opinion on the matter of when a claim had to be filed, "[t]he preservation or termination of an underlying obligation subject to section 3702(b) continues to be controlled by whether a claim has been received by the Comptroller General or the appropriate agency within 6 years of the date of accrual of the claim." See Op. Comp. Gen. B- 244431.2 at 4-5. On this point, the Comptroller General specifically rejected the argument that, because the CEBA did not amend 31 U.S.C. § 3328(c), the obligation underlying a Treasury check was enforceable in perpetuity, and therefore the check could be reissued in perpetuity. Id. The Comptroller General pointed out that section 3328(c) says only that a limitation imposed on a claim against the United States under section 3702 does not apply to an unpaid check and that the statutory provision does not say that a limitation imposed on a claim against the United States does not apply to the obligation underlying the check. The VA General Counsel then explained in its precedent opinion 19-95 how its opinion was consistent with advice previously provided by the General Accounting Office (GAO) to VA's Deputy Assistant Secretary for Financial Management in Op. Comp. Gen. B-243536 (Sept. 7 1993) [holding that a claim against the Government on the obligation underlying a pre- October 1, 1989 check presented to the GAO or the agency whose activities give rise to the claim more than six years after the claim accrues is explicitly barred]. The General Counsel added that the above-cited interpretations were also seemingly consistent with the intent of Congress based on House committee findings made in connection with a private relief bill. On the basis of the above, the VA General Counsel specifically found no exemption from the six-year statute of limitations of 31 U.S.C. § 3702(b)(1) applicable to obligations for which checks were drawn on VBA appropriation accounts. The General Counsel added that section 3702(b) had been strictly enforced by the Comptroller General, which authorized the Comptroller General to "settle all claims . . . against the United States Government," except as otherwise provided. It was further noted by the General Counsel in precedent opinion 19-95 that the six-year limitation applied generally to such claims with limited exceptions, and that the only exceptions recognized in section 3702(b) were: where an exception was specified in chapter 37 of title 31, U. S. Code, or another law; as to a claim by a state, the District of Columbia, or a United States territory or possession; and, in the event that a claim of a member of the armed forces accrued during war or within 5 years before a war begins. The General Counsel pointed out with respect to these exceptions that it could find no basis in chapter 37 of title 31, U. S. Code, or in any other provision of law, for an exemption from the six-year statute of limitations for claims involving veterans' benefits appropriations. As mentioned above, VA General Counsel's Undigested Opinion of January 19, 1996 addressed additional concerns regarding time limits on claims resulting from non-negotiation of checks by a payee. In this opinion, the General Counsel stated that the GAO's August 1995 clarification of the Treasury Department's Op. Comp. Gen. B-244431.2 (Sept. 13, 1994) did not change its holding in VAOPGCPREC 19-95. Relying on Op. Comp. Gen. B-244431.2, the General Counsel restated its holding in precedent opinion 19-95, as follows: a. The proceeds of uncashed veterans' benefits checks which have been canceled under the CEBA are not payable unless a claim for them is made within six years after the claim accrued, regardless of whether the benefit checks were drawn on veterans' benefit appropriations. b. Claims based on checks which have been lost, stolen, or paid on a forged endorsement, or which were never received, and which have been canceled under the CEBA, are also barred unless made within six years after the claim accrued. In its August 1995 clarification, the GAO indicated that, not only does the timely receipt of a claim on the underlying obligation toll the six-year limitation period, the tolling continues without regard to the subsequent issuance of a check in liquidation of the underlying obligation. In responding to this clarification, the VA General Counsel stated the following: The GAO's recent clarification has no effect on the holding of VAOPGCPREC 19- 95. The holding of that opinion is entirely consistent with the clarification of Op. Comp. Gen. B- 244431.2. A claim on the obligation underlying a veterans' benefit check canceled under the CEBA is barred unless received within six years after the accrual of the claim on the underlying obligation. If a claim on the underlying obligation was received within six years after the accrual of the claim, then the canceled check may be replaced even if more than six years have passed since the claim on the underlying obligation accrued. The VA General Counsel added that the significance of the GAO's clarification varied depending on the kind of obligation underlying issuance of the canceled check and when a claim on that underlying obligation accrued. For example, the General Counsel stated that VAOPGCPREC 19-95 dealt with checks issued monthly in payment of VA's obligation to pay dependency and indemnity compensation (DIC) benefits for each month an eligible beneficiary survived. In such a case, the General Counsel stated that it would appear that a claim for a particular month's benefits accrued when a beneficiary who had applied for and been found eligible for DIC survived until the end of the month for which the benefits in question were payable. Thus, the General Counsel stated that each month's claim was distinct and accrued at a different time, and therefore, a timely claim for the proceeds of a canceled check issued for a particular month would not affect the limitation period applicable to a claim for the proceeds of a check issued for any other month. The General Counsel distinguished this situation, i.e., claims for periodic VA benefits, from a claim based on a contract, which accrued upon the completion of the contractor's work, and which could therefore toll the six-year claims limitation period and preserve the underlying claim, necessitating a single timely claim for the amount due under a contract when the work was finished on the contract. The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA. 38 U.S.C.A. 7104(c0. Discussion of pertinent law as applied to facts in case The Board has carefully reviewed the evidence of record and the pertinent law and precedent legal authority discussed above, and based thereon, has determined the following: ? VAOPGCPREC 19-95: The outcome of this case is controlled by the legal findings and conclusions set forth in the precedent opinion of VA's General Counsel in VAOPGCPREC 19-95, which the Board is legally obligated to follow. See 38 U.S.C.A. § 7104(c) (West 2002). As discussed above, the VA General Counsel held in precedent opinion 19-95 that the proceeds of uncashed veterans' benefits checks which had been canceled under the CEBA were not payable unless a claim for them is made within six years after the claim accrued, regardless of whether the benefit checks were drawn on veterans' benefit appropriations, and that additionally, claims based on checks which had been lost, stolen, or paid on a forged endorsement, or which were never received, and which had been canceled under the CEBA, were also barred unless made within six years after the claim accrued. The facts in this case fall squarely within the terms of VAOPGCPREC 19-95. The veteran alleges that he did not receive a VA pension check in the amount of $3,552 that the record shows was issued to him in October 1983, and which would be considered canceled under the above-cited Treasury Department guidelines given the passage of time (for checks issued prior to October 1, 1989). The veteran has filed a claim for payment of this check. The outcome turns on when did his claim on the underlying obligation/non-negotiation of a VA pension check accrue and whether it was timely filed within the meaning of applicable law and legal authority governing the issuance and cancellation of Treasury checks. As these questions were interpreted in precedent opinion 19- 95, the Board is bound to apply this opinion to the facts of this case. ? Cancellation of check: The Board initially finds that under the CEBA, as interpreted in VAOPGCPREC 19-95, the VA pension check in the amount of $3,552 issued to the veteran on October 1, 1983 is considered canceled. As noted above, the CEBA provides for cancellation of all unpaid Treasury checks issued prior to October 1, 1989. While the Treasury Department's tracer inquiry completed in January 2001 indicated that the October 1, 1983 check in the amount of $3,552 was in fact negotiated, this inquiry did not verify who might have negotiated the check. Because the veteran maintains that he never received the check, it is at arguable that it might have been stolen and negotiated by someone else. The Board will therefore find, for purposes of this claim, that the check went "unpaid" to the veteran- beneficiary within the meaning of the CEBA. In practical terms, and without necessitating further analysis of the veteran's credibility on the issue of whether he actually received the check, the Board will consider that the check in question was lost, stolen or otherwise never received by the veteran, which places it under the category of claims subject to the holding in VAOPGCPREC 19-95. Accordingly, the legal findings and conclusions made by the General Counsel in VAOPGCPREC 19-95 regarding the applicability of the Barring Act to claims such as this one, as well as the VA authority cited therein regarding VA's obligation to settle claims based on veterans' benefits checks issued prior to October 1, 1989 that were canceled by the Treasury Department, are germane to the Board's disposition of this case. These points of law will be applied to the facts of this case, as set forth in greater detail below. ? Accrual of claim: The Board finds that the veteran's claim on the underlying obligation/non-negotiation of check arising from payment of the VA pension benefits in the amount of $3,552 accrued at the end of the month for which those benefits were paid, which was October 31, 1983. As detailed above in the Background section above, the audits completed on the veteran's pension account in December 1989 and June 2000 clearly show that the check in the amount of $3,552 was issued on October 1, 1983. It does not appear the veteran disputes what these reports reflect - that a check for the award of VA retroactive pension benefits in the amount of $3,552 was in fact issued on October 1, 1983. While he disputes the fact that he actually received the check, he has submitted no evidence which places into doubt the accuracy of these audit reports. With these facts for consideration, the Board finds, as interpreted by the VA General Counsel in its Undigested Opinion of January 1996, that the veteran's claim on the underlying obligation for payment of the $3,552 pension award accrued on October 31, 1983, the end of the month for which those benefits were payable. VA pension benefits, like the DIC benefits discussed in the January 1996 Undigested Opinion, are paid periodically, i.e., month-to-month, and therefore, any claim on the underlying obligation for these benefits would accrue at the end of each month for which the benefits were paid. Hence, for purposes of this claim, the six-year statute of limitation imposed by the Barring Act commenced on October 31, 1983, which means that the time limit to file a claim on underlying obligation/non-negotiation of check by payee in the amount of $3,552 expired on or about October 31, 1989. ? Timeliness of claim: The Board finds that the veteran did not file a timely claim on the underlying obligation/non-negotiation by payee of the October 1983 check in the amount of $3,552, and he is not eligible to have a check replaced or re-issued to him. As noted above, because the check for VA pension benefits in the amount of $3,552 was issued on October 1, 1983 and went unpaid to the veteran-payee, under the CEBA, the check is considered canceled, and the date of accrual of any claim filed on the underlying obligation or non-negotiation of that check would expire on or about October 31, 1989. In this case, it is clear that the veteran is barred from bringing such a claim as the evidence does not show that he filed a claim based either on payment of the underlying obligation for an uncashed veterans' benefits check or based on an allegation of non-receipt of the check due to the fact that is was lost, stolen or never received within the six-year statute of limitations. The earliest date the veteran raised the matter of his non- receipt of the check is reflected by the representative's memorandum of May 1990, which is not timely filed. There is no earlier reference to non receipt of the check in the record, and the veteran and his representative have pointed to none. Later references to non receipt of the check are also untimely. In view of the foregoing, the Board finds that the veteran's claim, whether considered advanced on the basis that he is now owed payment of the underlying obligation for uncashed proceeds of a pre-October 1989 canceled Treasury check or on the basis that he did not negotiate the check because it was lost, stolen or never received and therefore is entitled to have the check replaced or re-issued to him, is explicitly barred within the meaning of the CEBA and the Barring Act, as interpreted by Op. Comp. Gen. B-244431.2 and Op. Comp. Gen. B-243535, and as these laws and legal authority were construed and applied to veterans' benefits appropriations pursuant to VAOPGCPREC 19-95. As alluded to above, because the veteran's claim was not received within six years of accrual of the claim, that is, on or before October 31, 1989, further inquiry and analysis of whether the proceeds of the October 1, 1983 check for $3,552 went unpaid to the veteran or whether the check was negotiated by someone else on account of being lost, stolen or never received by the veteran is not critical to the Board's final decision. On this point, the Board notes that the Treasury's tracer action inquiry in January 2001 indicated that the check had been negotiated. Copies of the check are no longer available, however. [The Board notes that the statutory retention period such checks is just over six years, which appears to be coincident with the six year statute of limitations on such claims discussed by the Board above.] In any event, it cannot be established who actually negotiated the check. The veteran claims he never got the check, and the Board will presume it was stolen for purposes of this claim. However, the outcome of this case is unaffected by this fact. The bottom line is that the applicable law provided the veteran a six-year window of opportunity to file a claim alleging any improprieties concerning the receipt and payment of the October 1, 1983 pension award check in the amount of $3,552, and the record shows that he did not taken action in this regard. He is therefore barred under the applicable law discussed above from now bringing a claim for non-receipt of this check. The Board also finds that no exceptions apply to toll the time limitations for this particular case (i.e., a claim that does not involve the death of the payee who received a check but did not negotiate it, cf. 38 U.S.C. §§ 5121, 5122; VAOPGCPREC 22-92). It was specifically pointed out by the VA General Counsel in VAOPGCPREC 19-95 that there existed no basis in chapter 37 of title 31, U. S. Code, or in any other provision of law, for an exemption from the six-year statute of limitations for claims for veterans' benefits appropriations. Accordingly, pursuant to VAOPGCPREC 19-95, the appeal as to this issue must fail. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) [where the law and not the evidence is dispositive of the issue before the Board, as in this case, the claim is denied because of the absence of legal merit or the lack of entitlement under the law]. Presumption of regularity For the purpose of completeness, the Board notes one final point with regard to the mailing of the October 1, 1983 pension award check to the veteran's address of record. The Court has ruled that there is a "presumption of regularity" under which it is presumed that Government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) [citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)]. While the Ashley case dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the RO. In this case, no clear evidence to the contrary has been presented with which to rebut the presumption of regularity. It is therefore presumed that the October 1, 1983 VA pension check was sent to the veteran at his last known address of record. Although the veteran has challenged VA to "prove" that he did not receive the check, as a matter of law it is the veteran who must rebut the presumption of regularity. The veteran has not done so. Accordingly, the Board finds no basis to alter its above- stated findings and conclusions regarding the timeliness of the veteran's claim alleging non-receipt of this check based on any alleged improprieties of VA's administrative procedures in the mailing of the October 1983 check to the veteran's address of record. ORDER The veteran's claim alleging non-receipt of the October 1, 1983 VA pension award check in the amount of $3,552 was not timely filed; his appeal of this claim fails as a matter of law. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.