Citation Nr: 1751671 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-35 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether the Veteran filed a timely substantive appeal for the claims of (1) whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a nervous condition, to include posttraumatic stress disorder (PTSD) and memory loss; (2) entitlement to service connection for a skin condition; and (3) entitlement to service connection for Parkinson's disease, claimed as a result of herbicide exposure. WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and his daughter ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. A notice of disagreement was received in December 2012, a statement of the case (SOC) was issued in December 2013, and a substantive appeal was received in December 2013. At the beginning of this appeal, the Veteran was represented by Kenneth LaVan, a private attorney. Mr. LaVan withdrew his representation of the Veteran in September 2015. In November 2016, the Veteran, his spouse, and his daughter testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. FINDINGS OF FACT 1. In a rating decision dated in August 2010, the RO denied entitlement to service connection for a skin rash and found that new and material evidence had not been received to reopen the claim of entitlement to service connection for a nervous condition; the Veteran filed a notice of disagreement in August 2010. 2. In a rating decision dated in December 2010, the RO denied entitlement to service connection for Parkinson's disease; the Veteran filed a notice of disagreement in December 2010. 3. A statement of the case was issued in August 2012; the cover letter and the statement itself were dated on August 14, 2012. 4. A substantive appeal was not received until October 26, 2012, which is neither within the remainder of the one-year period from the date that the notification of the August 2010 and December 2010 RO decisions were mailed nor within 60 days from the issuance of the August 2012 statement of the case. CONCLUSIONS OF LAW 1. The August 2010 and December 2010 rating decisions are final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2017). 2. A timely substantive appeal to the August 2010 and December 2010 rating decisions was not filed. 38 U.S.C.A. §§ 5103A, 7104, 7105(d)(3), 7108 (West 2014); 38 C.F.R. §§ 20.200, 20.202, 20.301(a), 20.302(b), 20.305, 20.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme which requires the filing of both a notice of disagreement and a formal appeal. Roy v. Brown, 5 Vet. App. 554 (1993). Appellate review of an RO decision is initiated by a notice of disagreement and completed by substantive appeal after a statement of the case is furnished. 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. § 20.200 (2017). After an appellant receives the statement of the case, he or she must file a formal appeal within sixty days from the date the statement of the case is mailed, or within the remainder of the one-year period from the date the notification of the RO decision was mailed, whichever period ends later. 38 U.S.C.A. § 7105(d)(3) (West 2014); 38 C.F.R. §§ 20.300, 20.302 (2017); see Rowell v. Principi, 4 Vet. App. 9, 17 (1993). By regulation, this formal appeal must consist of either "a properly completed VA Form 9, . . . or correspondence containing the necessary information." 38 C.F.R. § 20.202 (2017). Either the appellant or his or her representative may file a substantive appeal. 38 C.F.R. § 20.301(a) (2017). A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. 38 C.F.R. § 20.305. Upon request, the time period for filing a substantive appeal may be extended for a reasonable period for good cause shown. 38 U.S.C.A. § 7105(d)(3) (West 2014). A request for such an extension should be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303 (2017). In the case at hand, in November 2009, the Veteran executed a VA Form 21-22a, "Appointment of Individual as Claimant's Representative," designating Kenneth LaVan as his representative. This form was signed by Mr. LaVan and became effective November 21, 2009. VA received this document in December 2009. In a rating decision dated in August 2010, the RO denied entitlement to service connection for a skin rash and found that new and material evidence had not been received to reopen the claim of entitlement to service connection for a nervous condition; the Veteran filed a notice of disagreement in August 2010. In a rating decision dated in December 2010, the RO denied entitlement to service connection for Parkinson's disease; the Veteran filed a notice of disagreement in December 2010. A statement of the case dated August 14, 2012, was mailed to the Veteran and was cc'ed to his attorney. (This instruction appeared as "CC: AGENT OR PVT ATTY-EXCLUSIVE CONTACT NOT REQUESTED.") The cover letter from the statement of the case contained the following statement: You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. If we do not hear from you within this period, we will close your case. If you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires. A VA Form 9 was enclosed for the Veteran's benefit. No substantive appeal or any other correspondence indicating an intent to perfect an appeal was received from the Veteran or his representative until October 26, 2012, which falls outside of the one-year period following the notification of the December 2010 rating decision and the 60-day period following August 14, 2012, issuance of the statement of the case. The Veteran had dated the VA 9 itself as having been signed on October 25, 2012. Before he withdrew from the Veteran's case in September 2015, Mr. LaVan noted on the December 2012 notice of disagreement that VA is required to send any statement of the case to the claimant and the claimant's representative, if any. See 38 C.F.R. § 19.30(a). Mr. LaVan then stated that he did not receive a copy of the statement of the case until the Veteran himself gave him a copy on October 23, 2012. The presumption of regularity "supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Ashley v. Derwinski, 2 Vet.App. 62, 64 (1992) (quoting United States v. Chem. Found. Inc., 272 U.S.C. 1, 14-15 (1926)). If an appellant submits clear evidence, "the burden shifts to the Secretary to show that regular mailing practices were followed in mailing the document in question in accordance with applicable law and regulation," Grain v. Principi, 17 Vet.App. 182, 187 (2003), or that "the appellant in fact received a copy of [the] decision," Sthele v. Principi, 19 Vet.App. 11, 17 (2004). Before he withdrew from the Veteran's case in September 2015, Mr. LaVan asserted on the December 2012 notice of disagreement that VA cannot demonstrate that it sent the statement of the case to his last known address. He contends that this is significant because he did not receive the statement of the case until the Veteran himself gave him a copy on October 23, 2012. He and the Veteran then promptly executed a VA Form 9, dated October 25, 2012, and submitted it via fax on October 26, 2012. As noted above, the burden is on the appellant to submit "clear evidence" to rebut the presumption of regularity. Mr. LaVan provided the following argument to support his contentions: Notice of VA's action is ordinarily deemed to be the date of mailing of notice of that action to the claimant and the representative, if any, to the last known address of record. If so mailed, the law presumes that the notice was properly mailed to the veteran and the representative on the date stamped thereon. See Matthews v. Principi, 19 Vet.App. 23, 27 (2005). This presumption may be rebutted by a showing that the notice was not mailed to the correct, last-known address. See id. To show that the statement of the case was not mailed to his correct, last-known address, Mr. LaVan noted that, while VA was aware of his current mailing address based on its receipt of the VA Form 21-22a appointing him as representative, the August 2012 statement of the case does not state to whom it was sent other than to the Veteran. Specifically, he noted that "the cover letter indicates, without any specificity, that it was sent to the entirely ambiguous entities titled "Agent or Pvt Atty." Therefore, he asserted, "there is no explicit indication on the SOC, or its cover letter, that it was mailed to us, [the Veteran's] representative." He provided four arguments to support this position. First, he noted, the statement of the case notice does not list his firm by name. Second, he noted that the statement of the case notice is unclear with respect to whether the statement of the case "was mailed to an attorney rather than some agent." Third, he noted that nowhere on the notice is there a reference to Mr. LaVan by name as a recipient of a copy of the statement of the case. Fourth, he noted that nowhere on the notice is the address indicating where the statement of the case was purported to have been mailed. The Board has considered these statements but finds that they do not constitute "clear evidence" that VA had not properly discharged its official duties in issuing the statement of the case to the Veteran's accredited representative. First, the Board finds that the absence of Mr. LaVan or his firm's name on the statement of the case does not constitute clear evidence that VA's employees did not properly discharge their official duties in mailing notice to him. The presence or absence of Mr. LaVan or his firm's name within the statement of the case is not relevant to whether the statement of the case itself was sent to him, as the contents of the statement of the case do not determine or reflect the mailing list. The Board will next address Mr. LaVan's contentions concerning the absence of his or his firm's name on the list of document recipients. Mr. LaVan's second and third concerns will be addressed together, as his second contention is a subset of his third one. With respect to his third contention, the fact that neither his nor his firm's name was on the list of recipients of the statement of the case does not constitute clear evidence that VA's employees did not properly discharge their official duties in mailing notice to him. As noted by Mr. LaVan himself, the cover letter for the statement of the case lists a "cc" of "Agent or Pvt Atty." Mr. LaVan has interpreted this ambiguity as constituting clear evidence that the statement of the case was not mailed to him. The Board finds that it does not. It is clear that Mr. LaVan was the Veteran's private attorney at the time of the issuance of the August 2012 statement of the case. A valid VA Form 21-22a had been executed by the Veteran, signed by Mr. LaVan, and associated with the Veteran's VA claims file approximately three years earlier. Mailings from Mr. LaVan's firm had been associated with the Veteran's claims folder and had been acted upon by VA. It is clear that VA had recognized Mr. LaVan as the Veteran's accredited representative. With respect to both the third and the second contentions, it is also clear that the Veteran has never been represented by an agent or by an attorney other than Mr. LaVan, nor had the Veteran unsuccessfully attempted to engage such representation. Therefore, the only individual to whom the label "Agent or Pvt Atty" could logically apply in this case is Mr. LaVan. The mere suggestion that the statement of the case could have been sent to an individual who has never been associated with the Veteran's claim does not present clear evidence that VA's employees did not properly discharge their duty to provide Mr. LaVan with a copy of the statement of the case by mailing the statement of the case to the Veteran's "Agent or Pvt. Atty." Likewise, Mr. LaVan's fourth contention, that the notice does not contain the address indicating where the statement of the case was purported to have been mailed, does not constitute clear evidence that VA employees did not properly discharge their duty to provide the Veteran and his representative a statement of the case. As noted by Mr. LaVan himself, Mr. LaVan's mailing address remained the same throughout his representation of the Veteran. Notifications that were sent to that address both before and after the issuance of the August 2012 statement of the case were at no time returned as undeliverable. There is no indication that Mr. LaVan's address had erroneously been changed in the system. Nor is there any reason to believe that a statement of the case that was mailed to Mr. LaVan would have been mailed to anywhere other than the only address that he ever had during the time that he was the Veteran's accredited representative. The arguments that were presented by Mr. LaVan on this particular point are speculative and do not overcome the presumption of regularity. The Board therefore finds that the presumption of regularity has not been overcome, and the VA Form 9 that was received by VA on October 26, 2012, does not constitute a timely substantive appeal. Parenthetically, the Board notes that the Veteran testified at his Board hearing that Mr. LaVan had been advising him throughout the appeals process and that he had advised the Veteran that he was going to file the appeal on time. (See Board Hearing Transcript, page 6.) The Veteran also testified that he had an opportunity to talk with Mr. LaVan as it pertained to the statement of the case, and that they discussed the timeframe for filing a substantive appeal. (See Board Hearing Transcript, page 8.) He further testified that he was not aware that the timeframe had already expired when Mr. LaVan submitted the substantive appeal. (See Board Hearing Transcript, page 7.) If, as Mr. LaVan had suggested, the Veteran had not shared the statement of the case with Mr. LaVan until following the expiration of the appeals period, then the Veteran would have to have been informed by Mr. LaVan at the time of the filing of the substantive appeal that the VA Form 9 they were filing was, in fact, untimely. The Veteran's hearing testimony strongly suggests that he was not notified that Mr. LaVan was filing an untimely VA Form 9 on his behalf. The Veteran's hearing testimony is therefore inconsistent with the contention made by Mr. LaVan in the December 2012 notice of disagreement that Mr. LaVan had not been made aware of the statement of the case until following the expiration of the deadline to submit a substantive appeal. Next, the Board has reviewed the record to determine whether another document could be considered to constitute a timely substantive appeal. The Board notes that neither the Veteran nor his then-representative submitted a statement in the 60-day period beginning with the issuance of the statement of the case. The Board notes that a letter that was submitted by Mr. LaVan was received by the Office of Compensation and Pension Services on July 30, 2012, and was, in turn, received by the RO on August 17, 2012. However, this internal transfer of a piece of mail does not push back the date of VA's receipt of such mail to the date on which the transfer occurred. In any event, the July 2012 letter cannot reasonably be construed as a substantive appeal under 38 C.F.R. § 20.202, as it does not contain the necessary information that is provided in a VA Form 9. Specifically, it does not state that it is performing the function of a VA Form 9 in perfecting an appeal to the Board, and it does not specify which issue or issues are being appealed. Nor does it present any arguments related to errors of fact or law that were committed by the AOJ in the determinations that were being appealed. The evidence reflects that the Veteran was advised of the necessity to file his appeal within one year from the date of notice of the initial denial or within 60 days after the date of the statement of the case, and was also advised of what was required of him if he needed more time to do so. The Veteran did comply with appellate procedures to the extent of filing a timely notice of disagreement, but did not comply with the required procedures for perfecting his appeal after receipt of the statement of the case, as instructed in the written material that accompanied the statement of the case in August 2012. As a timely substantive appeal to the August 2010 and December 2010 rating decisions was not received by VA, the Veteran's appeal of his original claims of (1) whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a nervous condition, to include PTSD and memory loss; (2) entitlement to service connection for a skin condition; and (3) entitlement to service connection for Parkinson's disease, claimed as a result of herbicide exposure, were not perfected. The Board finds no basis for otherwise assuming jurisdiction over these issues. ORDER A timely substantive appeal was not received for the claims of (1) whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a nervous condition, to include PTSD and memory loss; (2) entitlement to service connection for a skin condition; and (3) entitlement to service connection for Parkinson's disease, claimed as a result of herbicide exposure; the appeal is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs