Citation Nr: 1752629	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  16-37 363	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUE

Whether the Veteran filed a timely notice of disagreement with a February 2013 rating decision.


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to April 1968.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 RO determination that the Veteran had not filed a timely notice of disagreement with regard to a February 2013 rating decision.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Board notes that the Veteran has filed a notice of disagreement at the RO concerning other issues adjudicated in a March 2015 rating decision, as shown in the electronic claims file (VBMS).  Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the notice of disagreement and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and the issues presently before the RO will be the subject of a later Board decision, if ultimately necessary. 


FINDINGS OF FACT

1. A February 2013 RO decision granted service connection for a back disability and assigned staged disability ratings, and the appellant was notified of this decision by a letter dated on May 31, 2013.

2. The RO did not receive the appellant's faxed notice of disagreement until June 3, 2014, more than one year after the May 31, 2013 notification letter.


CONCLUSION OF LAW

The Veteran did not file a timely notice of disagreement in response to the RO's February 2013 decision. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.200, 20.201, 20.300, 20.302, 20.305 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits, pursuant to the Veterans Claims Assistance Act (VCAA). 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA does not apply here as the issue of timeliness of a notice of disagreement is a jurisdictional matter, not a claim for benefits. It is the jurisdictional initiation of an appeal and is not evidence-driven within the meaning of the VCAA. See Percy v. Shinseki, 23 Vet. App. 37 (2009).

The question in this case is whether the Veteran submitted a timely notice of disagreement following notice of a February 2013 rating decision that awarded service connection for a back disability effective from September 1969, with a 10 percent rating effective from the date of service connection, and a 20 percent rating effective from January 16, 1991. Notice of this decision was mailed to the Veteran on May 31, 2013.

An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. For appeals filed prior to March 24, 2015, as in this case, a notice of disagreement is 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 (AOJ) and a desire to contest the result. 38 C.F.R. § 20.201 (2017).

A claimant or his representative must file a notice of disagreement with a determination of the RO within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302 (a). A notice of disagreement must be filed with the VA office from which the claimant received notice of the determination being appealed unless notice has been received that the applicable VA records have been transferred to another VA office. 38 C.F.R. § 20.300. If a notice of disagreement is not filed within the one year time period, the RO decision becomes final. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R.§§ 3.160 (d) (2017); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2017). An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105 (c). 

The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302 (a). A notice of disagreement postmarked prior to expiration of the one year period will be accepted as having been timely filed. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. § 20.305 (a). 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 (a). In calculating this five-day period, Saturdays, Sundays and legal holidays will be excluded.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has described the complementarity of the common law mailbox rule and the postmark rule. Savitz v. Peake, 519 F.3d 1312, 1316 (Fed. Cir. 2008), at 1316. The postmark rule describes when an untimely submission may be deemed timely. The common law mailbox rule describes whether a timely, but not received, submission may be deemed received. Id.

Correspondence dated on May 29, 2014 was received from the Veteran's representative via facsimile (fax) on June 24, 2014, more than one year after the May 31, 2013 notice of the February 2013 RO decision. The subject matters of the 4-page letter were listed as Notice of Disagreement and election of review by a decision review officer (DRO), and submission of VA Form 21-8940 and evidence. The letter expressed the Veteran's disagreement with the disability ratings assigned for his newly service-connected back disability in a February 2013 rating decision. In a June 24, 2014 fax cover sheet enclosed with the above documents, an employee of the Veteran's representative stated that per a telephone conversation with an Attorney Fee Coordinator (AFC), she was informed that her previous fax of a May 29, 2014 notice of disagreement was not received. She said that the AFC provided "the correct fax," and she included the former fax confirmation sheet to prove the notice of disagreement was timely submitted. The June 24, 2014 fax was sent to 1-254-299-9126 on that date.

By a letter to the Veteran in July 2014, the RO notified him that his June 2014 notice of disagreement was not timely. The instant appeal ensued.

The Veteran's representative contends that his June 2014 notice of disagreement was initially faxed to VA on May 29, 2014, but was apparently lost by VA and then he resubmitted it to VA in June 2014. See July 2014 notice of disagreement and July 2016 substantive appeal.

The Veteran's representative has submitted a fax confirmation sheet showing that eleven pages were faxed to 1-254-299-9103 on May 29, 2014 at 4:50pm. The fax confirmation sheet includes a fax cover sheet dated on May 29, 2014, stating that 10 pages (excluding cover) were faxed, including a notice of disagreement and election of DRO review, submission of VA Form 21-8940 and evidence. The representative also submitted a copy of the May 29, 2014 notice of disagreement letter described above, asserting that this is the letter that was originally faxed to the RO on that date, along with the other documents described above.

The electronic claims file also includes several scanned documents that were received by VA on June 3, 2014, including the last three pages of a 4-page letter from the representative. The fax transmission information from the representative's fax machine on these documents indicates that these documents were apparently faxed to VA between 4:51 and 4:53 p.m. on May 29, 2014. These documents have a VA date stamp of June 3, 2014, and an electronic receipt date of June 3, 2014 in VBMS. A post-it from a VA employee is attached to these documents, and shows that pages one and two were missing, and that VA telephoned the representative about this on June 10, 2014. The Board notes that the last 3 pages of the representative's letter are the same as the pages of the notice of disagreement letter that was faxed to VA on June 24, 2014, and these pages contain contentions that a higher rating is warranted for the back disability. The documents received on June 3, 2014 also include a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and buddy statements. 

The Veteran's representative contends that the May 29, 2014 fax confirmation sheet proves that VA received it on that date. See July 2016 letter.

The law of this circuit states that a fax transmission receipt does not create a presumption of receipt. See Riley & Ephraim Constr. Co. v. United States, 408 F.3d 1369, 1372-73 (2005) (noting that "some courts have held that a fax confirmation sheet produces a rebuttable presumption of receipt" but holding that "we cannot infer receipt from evidence of transmission."). Moreover, faxes are a wholly distinct form of communication from mail, involving instantaneous, electronic communication through commercial telephone transmission networks, rather than delayed, physical communication through a governmental intermediary. The 3rd Circuit Court of Appeals described the mailbox rule as a common law development to aid in determining whether physical delivery to the Government has been accomplished. Phila. Marine Trade Ass'n-Int'l Longshoremen's Ass'n Pension Fund v. Comm'r, 523 F.3d 140, 147 (3d Cir. 2008). 

Although the June 24, 2014 fax cover sheet from the representative suggests that the May 2014 notice of disagreement was faxed to an incorrect telephone number, and later was faxed to VA again, the preponderance of the evidence demonstrates that most of the pages dated on May 29, 2014 were in fact received by the RO on June 3, 2014. 

The Veteran's representative contends that the fax transmission receipt demonstrates that the fax was actually received by VA on May 29, 2014. However, the Board finds that this transmission receipt merely shows that the transmission information from the representative's fax machine included that date in the transmission. 

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 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). The Board presumes the regularity of the RO's processes in stamping the correct date of receipt on the correspondence received on June 3, 2014. The Board has considered the conflicting evidence in the representative's transmission receipt, and finds that the VA date stamp is more credible than the fax transmission date provided by the Veteran's representative. 

In light of the evidence of record discussed above, the Board finds that the weight of the evidence shows that an incomplete faxed copy of a May 29, 2014 notice of disagreement (missing the cover sheet and first page) was received by VA on June 3, 2014, as demonstrated by the RO date stamp showing receipt on that date, which is more than one year after mailing of notice of the February 2013 rating decision on May 31, 2013, and is not timely received.

After a review of the record, the Board finds that there are no documents submitted by the appellant within one year of mailing of notice of the February 2013 decision that could be considered as a notice of disagreement with that decision. The Board is bound by the laws and regulations governing the appellate process. 38 U.S.C.§ 7104. 

As it is clear from the record that a timely notice of disagreement was not received from the appellant with regard to the February 2013 RO decision, the Board finds that the appellant has not filed a timely appeal as to that decision, and the appeal must be denied.



ORDER

A timely notice of disagreement was not filed as to the February 2013 rating decision, and the appeal is denied.



____________________________________________
Lesley A. Rein 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs