Citation Nr: 0811560 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-31 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether a timely notice of disagreement was filed with respect to a July 31, 2003 rating decision. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from June 1979 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 decision letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that declined to accept the veteran's notice of disagreement with a July 31, 2003 rating decision, on the basis that the veteran's notice of disagreement was not timely filed. The veteran perfected a timely appeal of the December 2005 determination to the Board. In December 2007, the veteran appeared and offered testimony in support of his claim before the undersigned. The veteran's testimony on that occasion has been transcribed and associated with his claims file. As described in further detail below, the veteran clarified the issues on appeal during that hearing. The issues of entitlement to an initial compensable rating for residuals, pilonidal cyst; entitlement to an initial compensable rating for sleep apnea; and entitlement to service connection for residuals, blood in urine, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran was not provided notice of the July 31, 2003 rating decision, as it was sent to an address other than his current address; VA had previously been made aware of that address. 2. The veteran's filed a notice of disagreement in November 2005. 3. The veteran has clarified the issues he wishes to appeal as being entitlement to an initial compensable rating for residuals, pilonidal cyst, entitlement to an initial compensable rating for sleep apnea, and entitlement to service connection for residuals, blood in urine. CONCLUSION OF LAW A notice of disagreement with a July 31, 2003 rating decision, with respect to the issues of entitlement to an initial compensable rating for residuals, pilonidal cyst, entitlement to an initial compensable rating for sleep apnea, and entitlement to service connection for residuals, blood in urine, was timely filed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.103, 20.201, 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. The VCAA has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. The Board has considered this legislation, but finds that, given the favorable action taken below, no discussion of the VCAA at this point is required. The veteran argues that a timely notice of disagreement, with respect to a July 31, 2003 rating decision, should be deemed to have been filed. A written communication 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 constitutes a notice of disagreement. While special wording is not required, the notice of disagreement must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. 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 becomes final. The date of mailing the letter of notification of the determination is presumed to be the same as that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. In the instant case, the record reflects that, at the time that his initial claim in July 2001, the veteran indicated that his address was in Ft. Dix, New Jersey. The record also reflects that a VA Compensation and Pension Examination was ordered for the veteran, and that the RO sent an Address Information Request to the Postmaster General, dated in November 2001, which requested the current address of the veteran, with a notation that the veteran's last address of record was in Ft. Dix. VA Medical Center records, dated in March 2003, indicate that the veteran's address had been in Ft. Dix until June 2002, and, from September 2003 to the present, the veteran's address had been in Mount Holly, New Jersey. A VA Compensation and Pension Exam Inquiry, printed on July 21, 2003, notes the veteran's address to be in Mount Holly. All such documentation was contained in the claims file as of July 2003. A July 31, 2003 rating decision from the RO, in part, granted the veteran's service connection claims of residuals of pilonidal cyst and sleep apnea, both with noncompensable ratings, and denied the veteran's claim of entitlement to service connection for residuals, blood in urine. The August 4, 2003 notice letter of the July 31, 2003 rating decision was sent to the veteran's former address in Ft. Dix. A March 2004 correspondence from the veteran's accredited representative indicates that the veteran's current address was in Mount Holly. In a statement received in November 2005, the veteran asserted that he wished to appeal his claims of sinusitis, sleep apnea, pilonidal cyst, and depression. He more broadly cited that he wanted an "an Appeal" in January 2006 and raised the blood in the urine issue again in a June 2006 statement. At his December 2007 Board hearing, the veteran asserted that, prior to the July 31, 2003 rating decision, he notified VA of his change in address to Mount Holly. The veteran also clarified the issues he wished to appeal as being the evaluations of his service-connected cysts and sleep apnea, and the issue of entitlement to service connection for residuals of blood in urine. As such, the Board deems the veteran's notice of disagreement with the July 31, 2003 rating decision to be timely filed. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief, and such notice must include the necessary procedures and time limits to initiate an appeal of the decision. 38 C.F.R. § 3.103. In the instant case, the veteran was not provided notice of the July 31, 2003 decision, as such notice was not sent to his current address at that time. The lack of such notice was prejudicial to the veteran, as he was not properly informed of the disposition of his claims, nor the procedures or time limits to initiate an appeal of the decision. The Board notes that it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut this "presumption of regularity." Ashley v. Derwinski, 2 Vet. App. 307 (1992). The presumption of regularity applies to procedures at the RO. Mindenhall v. Brown, 7 Vet. App. 271 (1994). Use of an incorrect address for a claimant constitutes the "clear evidence" required to rebut the presumption of regularity. Crain v. Principi, 17 Vet. App. 182, 187 (2003). However, evidence of a veteran's nonreceipt of a VA decision alone does not establish the "clear evidence" needed to rebut the presumption of regularity of the mailing. See Ashley, 2 Vet. App. at 309. Here, VA sent an Address Information Request to the Postmaster General, dated in November 2001, requesting the current address of the veteran, with a notation that the veteran's last address of record was in Ft. Dix. This indicates that VA had knowledge that the veteran's address was no longer Ft. Dix. Also, VA Medical Center records, dated in March 2003, indicate that the veteran's address had been in Ft. Dix until June 2002, and, from September 2003 to the present, the veteran's address had been in Mount Holly. Furthermore, a VA Compensation and Pension Exam Inquiry, printed on July 21, 2003, notes the veteran's address to be at in Mount Holly. In this regard, the Board notes that all of these documents had been associated with the claims folder prior to the July 31, 2003 rating decision. Moreover, within one year of the August 4, 2003 notice letter of the July 31, 2003 rating decision, the veteran's accredited representative indicated that the veteran's current address was in Mount Holly. Thus, the Board finds that VA had knowledge of the veteran's address change both before the August 4, 2003 notice letter for the July 31, 2003 rating decision, and that VA received notice of such change in address within the one- year period after the August 4, 2003 letter. VA's use of the incorrect address for the veteran constitutes clear evidence that VA has not properly discharged its official duties, and thus the presumption of regularity has been rebutted in this case. Therefore, in light of VA's failure to provide adequate notice of both the July 31, 2003 decision on his claims, and the necessary procedures and time limits to initiate an appeal of the decision, the Board deems the veteran's November 2005 notice of disagreement to be timely filed. To this extent only, the appeal is granted. The veteran has clarified the issues with which he disagrees and for which he wishes to initiate appeal as entitlement to an initial compensable rating for residuals, pilonidal cyst; entitlement to an initial compensable rating for sleep apnea; and entitlement to service connection for residuals, blood in urine. As noted below, further action is necessary before the Board can assume jurisdiction over the claims on their merits, however. ORDER As a notice of disagreement with the July 31, 2003 rating decision was timely filed, the issues of entitlement to an initial compensable rating for residuals, pilonidal cyst; entitlement to an initial compensable rating for sleep apnea; and entitlement to service connection for residuals, blood in urine, are considered to be on appeal, and, to this extent only, the veteran's appeal is granted. REMAND The veteran has timely expressed disagreement with the issues of entitlement to an initial compensable rating for residuals, pilonidal cyst, entitlement to an initial compensable rating for sleep apnea, and entitlement to service connection for residuals, blood in urine, which were adjudicated in the RO's July 31, 2003 rating decision. As the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Accordingly, the case is REMANDED for the following action: With respect to the issues of entitlement to an initial compensable rating for residuals, pilonidal cyst; entitlement to an initial compensable rating for sleep apnea; and entitlement to service connection for residuals, blood in urine, the RO should furnish the veteran and his representative a Statement of the Case in accordance with 38 U.S.C.A. § 7105 (West 2002). This issuance should address all three claims on their merits and include all applicable laws and regulations, bearing in mind the date of claim (July 2001) and the fact that the criteria for evaluating skin disorders have been revised during the pendency of this appeal. The veteran and his representative should clearly be advised of the need to file a timely Substantive Appeal following the issuance of the Statement of the Case if the veteran wishes to perfect an appeal from that decision. The veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs