Citation Nr: 1307979 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 10-41 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the Veteran received disability payments from August 2006 to January 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to April 2003 This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. From July 2006 to January 2008 the St. Petersburg, Florida RO mailed disability payment checks to the Veteran at an address he designated in Orlando, Florida. 2. The RO performed an audit and determined that all checks mailed from August 2006 to January 2008 were cashed, with the exception of the March 2007 and June 2007 checks. CONCLUSION OF LAW The Veteran received his disability payment checks from August 2006 to January 2008. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.2600 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, the Veterans Claims Assistance Act of 2000 and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (2012). However, as the law as mandated by statute, and not the underlying facts or development of the facts, is dispositive of the Veteran's claim in this case, these provisions are not applicable to the claim decided below. See Kane v. Principi, 17 Vet. App. 97, 103 (2003); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Sabonis v. Brown, 6 Vet. App. 426 (1994). Analysis The Veteran contends that he did not receive his disability payments from August 2006 to January 2008, with the exception of March 2007 and June 2007 payments. The Veteran was incarcerated during a portion of this time, beginning in February 2007. In July 2006 the Veteran began receiving disability payment checks at an address in Orlando, Florida. In May and July 2007 notices to the Veteran were sent to the Orlando, Florida address notifying him that his payments would be decreased due to his incarceration status. In July 2007 the Veteran submitted a statement indicating he had not been receiving his disability payments since August 2006. In November 2007 the Veteran submitted a statement that he wanted to restrict his power of attorney and that P.V. should no longer be receiving his disability payment checks. In January 2008 he submitted a statement requesting that his disability payments be mailed to an address in Sanford, Florida - the location of the place of his confinement. Beginning in February 2008 his payments were deposited into an inmate trust account. The RO performed an audit of the Veteran's disability payments and determined that from July 2006 to January 2008 his checks were mailed to an address in Orlando, Florida. With the exception of the March and June 2007 checks, all other checks had been cashed. The March and June 2007 checks were later cancelled and re-issued to the Veteran. See e.g., September 2010 statement of the case. To the extent the Veteran contends that he did not receive the disability payments from August 2006 to January 2008, weighing against the Veteran's assertion is the legal '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 (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 United States Court of Appeals for Veterans Claims (the CAVC) applied this presumption of regularity to procedures at the RO. The RO determined that from August 2006 to January 2008 it mailed disability payment checks to the address of record for the Veteran. The disability payment checks mailed to the Orlando, Florida address for this time period were cashed. See e.g., June 2009 administrative decision. The Veteran's allegation alone that he did not receive his disability payment checks would not rise to the level of 'clear evidence to the contrary' as required to rebut the presumption of regularity. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001); see also Ashley, supra. Thus, the Board finds that the Veteran received disability payments from August 2006 to January 2008. ORDER The appeal is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs