Citation Nr: 18150326 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 13-06 508A DATE: November 15, 2018 ORDER The issue as to whether a February 2010 VA Form 9 was timely filed as a substantive appeal is denied. FINDINGS OF FACT 1. Entitlement to a higher level of special monthly compensation (SMC) was denied in a November 2007 rating decision; the Veteran submitted a notice of disagreement (NOD) with this issue and a statement of the case (SOC) was issued on November 2, 2009. 2. No document that may be construed as a substantive appeal was received within 60 days from the mailing of the SOC on November 2, 2009, nor was any such document received within the one-year period from the mailing of the November 2007 rating decision. CONCLUSION OF LAW A substantive appeal to a November 2007 rating decision was not timely received. 38 U.S.C. §§ 5104, 7105 (2014); 38 C.F.R. §§ 3.103, 19.32, 20.200, 20.300, 20.302, 20.303, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from May 1968 to December 1969 in the United States Army. In October 2016, the Board denied the Veteran’s claim regarding the timeliness of the February 2010 substantive appeal and entitlement to an earlier effective date for the grant of separate compensable evaluations for residuals of diabetes mellitus. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2018 memorandum decision, the Court affirmed the Board’s decision regarding the earlier effective date, but vacated the Board’s decision regarding the timeliness of the February 2010 substantive appeal, and remanded that issue to the Board for action consistent with the memorandum decision. Whether a February 2010 VA Form 9 was timely filed as a substantive appeal. Appellate review will be initiated by an NOD and completed by a substantive appeal after an SOC is furnished. 38 U.S.C. § 7105. The governing regulations provide that an appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C. § 5104. Such notice must inform a claimant of the right to initiate an appeal by filing an NOD, plus the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103(f). A claimant may then initiate an appeal from a VA decision by the timely filing of an NOD in writing. 38 C.F.R. § 20.200; see also Percy v. Shinseki, 23 Vet. App. 37, 41 (2009) (pursuant to 38 U.S.C. § 7105(b)(1), a claimant shall file a NOD within one year from the date on which the agency of original jurisdiction (AOJ) mails notice of the unfavorable decision, or the AOJ decision shall become final). A substantive appeal must be filed within 60 days from the date the regional office (RO) mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed. 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The absence of filing of a timely substantive appeal, as opposed to an NOD, is not a bar to the Board’s jurisdiction; therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy, 23 Vet. App. at 45. Additionally, the deadline for filing a substantive appeal may be (1) extended for good cause if the claimant files a request in writing during the appeal period, 38 C.F.R. § 20.303; or (2) equitably tolled, Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Equitable tolling is justified in “extraordinary circumstances.” McCreary v. Nicholson, 19 Vet. App. 324 (2005). The following three requirements must be met: (1) the extraordinary circumstance must be beyond the claimant’s control, (2) the claimant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the claimant must exercise “due diligence” in preserving his or her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id.; see also Checo v. Shinseki, 26 Vet. App. 130 (2013). When an SOC is issued, the claimant and representative will also be furnished: information on the right to file and time limit for filing a substantive appeal; information on hearing and representation rights; and a VA Form 9 (Appeal to the Board). 38 C.F.R. § 19.30(b) (2017). In this case, the cover letter to the November 2009 SOC included the requisite information, and a VA Form 9 was included as an enclosure. The letter told the Veteran that he must file an appeal with the RO within 60 days of the date of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying of the action that had been appealed. The letter also informed the Veteran that an extension could be requested. Proper completion and filing of a substantive appeal are the last actions that a claimant needs to take to perfect an appeal. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202. Initially, the Board notes that the Veteran did not file a request for an extension of the time limit for filing the substantive appeal. Further, the Board finds that the matter does not warrant equitable tolling. In this case, the Veteran has not alleged that extraordinary circumstances prevented the filing of a substantive appeal in a timely manner. Rather, the Veteran asserts that he did file a timely appeal. The VA Form 9 to which he is referring is date stamped as received February 17, 2010, well after the period for appealing. He contends that he provided a VA Form 9 to the Solano County Veterans Service Office in Vallejo, CA, in December 2009. The Veteran stated in May 2010 that he has no idea what happened to the appeal after he gave it to Mr. Murphy, his benefits counselor. The Veteran suggests that the delay in dating the receipt of the appeal could have been caused by the US Postal Service or somewhere within the VA system. An April 2010 letter from Mr. Murphy notes that he personally mailed the form on December 16, 2009. He also suggests that the form was lost or delayed in the postal system or misplaced by the RO. The record contains an additional statement by an additional Veterans Benefits Counselor, Mr. Alcares, stating that the service officer’s copy of the VA Form 9 contains a notation that it was sent to VA on December 16, 2009. He informed the Veteran that he will have to submit a new claim with new and material evidence if he wishes to continue. The Board notes that there is a presumption of regularity in the law to the effect that 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. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the AOJ level, such as in the instant case. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in AOJ operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). The Board finds the presumption of regularity has attached, and it is presumed that had VA received a timely VA Form 9, it would have been logged and associated with the Veteran’s claims file. The Veteran must show by clear and convincing evidence that the presumption of regularity has been rebutted. The Board finds that a handwritten note stating it was sent to the Board on December 16, 2009 is not clear evidence and convincing evidence that overcomes the presumption of regularity. Although the Veteran may have provided his representative with a VA form 9 in December 2010, the form was not filed with the Board until February 2010. See Fithian v. Shinseki, 24 Vet. App. 146 (2010) (the Court determined that the sworn affidavit in which the Veteran states he mailed a motion to VA was not sufficiently clear evidence to rebut the presumption of regularity and was not sufficient to establish the presumption of receipt under the common law mailbox rule). The evidence of record is insufficient to establish the presumption of receipt under the common law mailbox rule. See Rios v. Mansfield, 21 Vet. App. 481, 482 (2007) (stating that the presumption of receipt permitted under the common law mailbox rule is not invoked lightly and requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from a party’s own self-serving testimony). Without sufficiently clear evidence to the contrary and with the presumption of regularity of the official acts of public officers, the Board must conclude that any mail sent to the AOJ by the Veteran would have been received, dated, and associated with the claims file. The Board recognizes that the Court has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy, 23 Vet. App. at 45. After a review of all the evidence of record, the Board finds that VA has not waived the requirement to file a substantive appeal, and the Board declines to do so at this time. In Percy, by treating a disability rating matter as if it were part of the Veteran’s timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Percy, 23 Vet. App. 37. In this case, unlike in Percy, the RO did not treat the Veteran’s substantive appeal (or any document purporting to act as a substantive appeal) as if it were timely. To the contrary, after receiving the representative’s February 2010 VA Form 9, the RO promptly notified the Veteran that the form was untimely. See VA March 5, 2010, letter. As such, the Board finds that the issue of timeliness of the substantive appeal has not been waived by VA at any time, either explicitly or implicitly, and the Board does not waive the timely substantive appeal requirement at this time. See Percy at 45 (Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed). In summary, the Board finds that the Veteran did not file a substantive appeal following the November 2, 2009 SOC until February 17, 2010, more than 60 days after the issuance of the SOC and more than one year after the issuance of the original rating decision. Since the Veteran’s substantive appeal following the was not timely, the November 2007 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Patricia Veresink