Citation Nr: 18155412 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-53 515 DATE: December 4, 2018 ORDER The issue of whether a substantive appeal was timely filed in response to a June 9, 2016, Statement of the Case is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran did not file a substantive appeal setting out arguments relating to errors of fact or law within 60 days of the date on which the June 9, 2016, Statement of the Case was sent to him. CONCLUSION OF LAW A timely substantive appeal was not filed as to the June 9, 2016, Statement of the Case that denied service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.302(b), 20.303, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1984 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2015 and November 2016 decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Phoenix, Arizona. In November 2015, the RO denied the claim of entitlement to a TDIU. In November 2016, the RO determined that an Appeal To Board Of Veterans’ Appeals (VA Form 9) filed by the Veteran in November 2016 regarding the issue of entitlement to service connection for a psychiatric disorder, to include PTSD and depression, was not timely filed. 1. Whether a substantive appeal was timely filed in response to a June 9, 2016, Statement of the Case. The Veteran contends he timely filed a substantive appeal to the June 9, 2016, Statement of the Case. The VA Form 9 filed by the Veteran following the issuance of the June 2016 Statement of the Case was received on October 24, 2016. Under VA regulations, an appeal consists of a timely filed written notice of disagreement and, after a Statement of the Case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the Statement of the Case to the Veteran, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case, and the date of mailing the letter of notification of the determination 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 U.S.C. § 7105; 38 C.F.R. § 20.302 (b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. When the Rules require that any written document be filed within a specified period of time, 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. In calculating this five-day period, Saturdays, Sundays and legal holidays will be excluded. 38 C.F.R. §§ 20.305 (a), 20.306. The Board has the authority to determine whether it has jurisdiction to review a case, and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.101 (d). The AOJ may close the case for failure to respond after receipt of the Statement of the Case, but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101 (d). Here, the appellant filed a claim of service connection for a psychiatric disorder, to include PTSD and depression in August 2011. His claim, in pertinent part, was denied in a July 2013 rating decision. He filed a timely notice of disagreement in November 2013. A Statement of the Case was sent on June 9, 2016, continuing the denial of service connection. The Veteran was notified that he had 60 days from the date of the Statement of the Case to perfect his appeal (to file a formal appeal to the Board). The appellant’s VA Form 9 was received on October 24, 2016, which was more than 60 days after the June 9, 2016, Statement of the Case was issued. Since the Veteran did not perfect his appeal to the Board within the substantive appeal time frame, the appeal was closed. He was notified of this in a letter dated November 9, 2016. With respect to acceptance of the postmark date under 38 C.F.R. § 20.305 (a), the envelope with the mailing label are of record demonstrating a postmark date of October 20, 2016. As such, the postmark date of the substantive appeal, also, is not within 60 days from the date that the RO mailed the Statement of the Case. The Board notes that the Veteran’s representative had initially indicated that the October 2016 Form 9 had been filed in response to an October 5, 2016, Statement of the Case that denied entitlement to a TDIU. The Veteran’s representative later asserted that neither he nor the Veteran had received a copy of the June 9, 2016, Statement of the Case. Nonetheless, an effort was made to file a VA Form 9 to the June 9, 2016, Statement of the Case in October 2016 without asserting at that time that a Statement of the Case had not been received. As such, the assertions in this regard are insufficient to overcome the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (the presumption of administrative regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (the applicability of the presumption of administrative regularity to AOJ actions). While the presumption of regularity may be rebutted by the submission of clear evidence to the contrary, no such evidence has been submitted in support of the Veteran’s claim. The mere allegation of irregularity does not, in and of itself, constitute clear evidence of irregularity. Crain v. Principi, 17 Vet. App. 182, 186 (2003). Consequently, the presumption of regularity is not rebutted, and the Board does not find the assertion as to the lack of receipt of the Statement of the Case to be persuasive. The Board has sympathetically considered the arguments on appeal, including the Veteran’s request for equitable consideration, but can find no basis on which to grant the appeal under the binding laws and regulations. As such, the appeal as to whether a substantive appeal was timely filed in response to the January 6, 2009, Statement of the Case must be denied. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. In a July 2015 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran asserted that both his service-connected right shoulder disability, and his psychiatric disorder (to include PTSD) impact his ability to work full-time starting in January 2011. The service-connected right shoulder disability is currently rated at 20 percent disabling. Service connection for the psychiatric disorder was denied in July 2013, and as set forth above, a timely substantive appeal was not perfected. In correspondence dated in July 2018, the Veteran’s representative requested that the October 2016 VA Form 9 be accepted as an informal claim to reopen the claim of entitlement to service connection for a psychiatric disorder, to include PTSD and depression. The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. While the October 2016 VA Form 9 cannot be considered an informal claim to reopen the previously denied claim of service connection for the psychiatric disorder, to include PTSD and depression, the Board recognizes the intent of the Veteran to request that the issue be reopened. As such, the outcome of the claim regarding the asserted psychiatric disorder could have a significant impact on the outcome of the TDIU issue. Therefore, such issues are considered inextricably intertwined, and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the notification to the Veteran that he must submit a standard form to initiate a claim to reopen the preciously denied claim of entitlement to service connection for a psychiatric disorder, to include PTSD and depression. The matter is REMANDED for the following action: 1. Notify the Veteran of the information needed to complete the application form or form prescribed by VA to reopen the claim of service connection for a psychiatric disorder, to include PTSD and depression. 38 C.F.R. § 3.155 (a); 79 Fed. Reg. 57,660. 2. Conduct any necessary development for the claim of entitlement to a TDIU. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel