Citation Nr: 1237293 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 09-46 936A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Whether a substantive appeal with respect to the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) was timely filed. REPRESENTATION Appellant represented by: Vermont Veterans Affairs Section, Military Department ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to January 1978 and had additional service with the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont that the Veteran did not file a timely substantive appeal with respect to the issues of entitlement to a TDIU. The Veteran requested a Travel Board hearing before a Veterans Law Judge. The requested hearing was scheduled for September 2012, and the Veteran was advised as to the date and time of the hearing. He failed to appear for the hearing without explanation and has not requested the hearing be rescheduled. Therefore, the request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2011). FINDINGS OF FACT 1. By letter dated September 25, 2006, the Veteran was notified of the RO's denial of entitlement to service connection for TDIU in a September 2006 rating decision. 2. The Veteran, through his representative, filed a timely Notice of Disagreement (NOD) with the September 2006 decision. 3. On February 1, 2008, the RO mailed a Statement of the Case (SOC) to the Veteran, with a carbon copy noted for his representative, addressing the denial. 4. On April 28, 2008, the RO received the Veteran's substantive appeal. CONCLUSION OF LAW The Veteran's substantive appeal of the denial for entitlement to service connection for a TDIU is untimely. 38 U.S.C.A. § 7105 (a), (c) (West 2002); 38 C.F.R. §§ 20.202; 20.302 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Evidentiary Background The record discloses that in a rating decision issued in September 2006, the RO denied entitlement to service connection for a TDIU. On September 25, 2006, the RO mailed the Veteran and his representative a letter that notified them of the actions taken by the RO in the September 2006 rating decision. The Veteran was provided with notice of his appellate rights at that time. His representative filed an NOD in May 2007. A cover letter with an enclosed SOC was issued to the Veteran, with his representative noted as receiving a carbon copy, on February 1, 2008. This SOC addressed the denial of entitlement to service connection for a TDIU. On April 28, 2008, the RO received the Veteran's substantive appeal. The Veteran's representative submitted argument in April and June 2008, November 2009, and September 2012 in which he asserted that the RO failed to send a copy of the February 2008 SOC to him although a carbon copy to the representative was noted on the document. Analysis The perfection of a timely appeal to the Board is a three-stage, sequential process initiated by the filing of a timely NOD in response to the decision being contested, followed by the provision of an SOC, and completed by the submission of a timely substantive appeal. 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction (in this case, the RO) mails the SOC to the appellant or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. If a timely appeal is not filed with a determination, it becomes final. 38 U.S.C.A. § 7105(c). If a timely substantive appeal has not been received, the appeal may be dismissed. VAOPGCPREC 9-99. A cover letter with an enclosed SOC was issued to the Veteran, with his representative noted as receiving a carbon copy, on February 1, 2008. At that time, he was informed that that he would have to submit a formal appeal to continue his appeal and was furnished with a VA Form 9, Appeal to Board of Veterans' Appeals. A review of the claim folder does not show that a substantive appeal was filed within one year of notification of the denial of his claim or within 60 days of the date of mailing of the SOC as required under 38 C.F.R. § 20.302 (b) (2004). The first correspondence of any type submitted by the Veteran or his representative subsequent to the SOC was a VA Form 9 that was received by the RO on April 28, 2008. As this Form 9 was not received within one year following notice of the September 2006 RO decision or within 60 days of the date of mailing of the February 2008 SOC, it is not a timely substantive appeal. As noted above, the Veteran's representative argues that he did not receive the February 2008 SOC. Generally, a rating decision does not become final and binding until written notification of the decision is issued to the claimant. See 38 U.S.C.A. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25. See also Best v. Brown, 10 Vet. App. 322, 325 (1997) (for a VA decision to become final and binding on a Veteran, he or she must first receive written notification of the decision); see, as well, Tablazon v. Brown, 8 Vet. App. 359, 361 (1995), citing Hauck v. Brown, 6 Vet. App. 518 (1994) (where an appellant never received notification of a decision denying his or her claim, then the usual one-year limit for timely appealing the decision does not begin to accrue ("run"); instead it is tolled ("stopped"). The written notification also must explain the reasons and bases for the decision and apprise the veteran of his or her procedural and appellate rights, in the event he or she disagrees with the decision and elects to appeal. The claims file contains a cover letter with an enclosed SOC issued to the Veteran, with his representative noted as receiving a carbon copy, on February 1, 2008. This SOC listed the same address for the Veteran and same "carbon copy" procedure for his representative as multiple other mailings in the claims file, including ones sent immediately before and after the SOC that were received by the representative. There is no indication these letters were returned to the RO as damaged or undeliverable. There is a presumption of administrative regularity that attaches to actions of public officials and presumes they have properly discharged their official duties. Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982). The Court has applied this presumption to "all manner of VA processes and procedures." VA need only mail notice to the last address of record for the presumption to attach. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). The Board does not find the Veteran's representative's unsubstantiated assertion that he did not receive the SOC rebuts this presumption of administrative regularity in the mailing of this document. If the RO says it mailed the SOC and the representative says he did not receive it, then there is evidence for and against the SOC being mailed. But as the presumption is in favor of VA in this circumstance, the presumption goes to VA having mailed the SOC. Since the Board does not find that the Veteran has presented any persuasive grounds for ordering that the substantive appeal of the denial of entitlement to service connection for a TDIU was timely, the appeal of the denial will be dismissed. ORDER As a timely substantive appeal was not filed, the appeal of the denial of the Veteran's claim for entitlement to service connection for a TDIU is dismissed. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs