Citation Nr: 1814656 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 14-29 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether the appellant's substantive appeal was timely filed in response to an April 3, 2013 statement of the case. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The appellant had active service from January 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 Administrative Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, finding that the appellant's service from January 1966 to June 1970 was not honorable, and that he and his dependents were therefore ineligible for VA benefits. In December 2014, a videoconference hearing was held before the undersigned; a transcript is of record. A translator was present during the hearing. FINDINGS OF FACT 1. The appellant 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 April 3, 2013 statement of the case was sent to him. 2. The appellant did not submit a request for an extension of the time limit for filing the substantive appeal prior to the expiration of the time limit for filing the appeal or at the time he submitted the substantive appeal. CONCLUSION OF LAW A timely substantive appeal was not filed as to the April 3, 2013 statement of the case that found he was ineligible for VA benefits due to his character of service. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202 , 20.302(b), 20.303, 20.305 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Because the issue addressed herein is a procedural claims-processing issue and not the underlying claim for VA benefits and the law is dispositive, the VCAA notice and assistance provisions do not apply. See Livesay v. Principi, 15 Vet. App. 165, 178-179 (2001); see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Legal Criteria, Factual Background, and Analysis The appellant contends his substantive appeal should be considered timely due to equitable reasons, including his age, income, and reported difficulties with the post office system in the Philippines. 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, "Appeal to Board of Veterans' Appeals," 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 mails the statement of the case to the appellant, 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 5-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 agency of original jurisdiction (AOJ) may close the case for failure to respond after receipt of the statement of the case (see 38 C.F.R. § 19.32), 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 for pension in January 2011. His claim was denied in the August 5, 2011 Administrative Decision stating he was ineligible for VA benefits due to the character of his service. He filed a timely notice of disagreement on July 27, 2012. A statement of the case dated April 2, 2013 was sent on April 3, 2013, continuing the denial of VA benefits based on the character of service. The appellant 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 (formal Appeal to Board of Veterans' Appeals), was received on June 27, 2013, which was more than 60 days after the April 3, 2013 statement of the case was issued. Since the appellant 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 October 3, 2013. With respect to acceptance of the postmark date under 38 C.F.R. § 20.305 (a), neither the envelope nor the mailing label potentially bearing a postmark date are of record. As such, the postmark date of the substantive appeal will be presumed to be five days (excluding Saturdays, Sundays and legal holidays) prior to the date of receipt of the document by VA. In this regard, the Board observes that the appellant signed the form and listed the date as June 24, 2013. Thus, the appellant's substantive appeal was not received, postmarked, or presumptively postmarked within 60 days from the date that the RO mailed the statement of the case. In the November 2013 notice of disagreement in response to the RO's finding that the June 2013 substantive appeal was not timely filed, the appellant stated that although the statement of the case was dated April 3, 2013, he did not receive it until April 28, 2013, therefore he should have had until June 28, 2013 to file his substantive appeal. In support of this contention, he submitted several VA envelopes with handwriting noting one was received July 23, 2013 and another was read sometime in November 2013. During his Board hearing, the appellant testified that he believed his substantive appeal should also be considered timely because he was a wartime veteran, older than 65, and had low income. The Board reiterates that the law provides for 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, not from the date of receipt by the appellant. Regardless, the United States Court of Appeals for Veterans Claims (Court) has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The mere assertion of nonreceipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the decision. Davis v. Principi, 17 Vet. App. 29, 37 (2003). To overcome the presumption of regularity and shift the burden to VA to prove that postal employees, as government officials, did not timely deliver the April 2013 statement of the case, the appellant must submit "clear evidence" indicating that the postal employees erred in their handling of his mail. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presumption of regularity allows courts to presume that what appears regular is regular, the burden shifts to the claimant to show the contrary). In this instance, the appellant has not submitted the clear evidence necessary to rebut the presumption of regularity in the handling of the statement of the case related to his claim. While he submitted envelopes from VA to support his contention that he did not receive the statement of the case until several weeks after it was mailed, the envelopes in question did not contain relevant evidence. Thus, he has not submitted the clear evidence necessary to rebut the presumption of regularity in the handling of this statement of the case. The mere allegation of irregularity does not, in itself, constitute clear evidence of irregularity. Crain v. Principi, 17 Vet. App. 182, 186 (2003); YT v. Brown, 9 Vet. App. at 199 (allegation that claimant did not receive a statement of the case is not the "clear evidence to the contrary" that is required to rebut the presumption of regularity that the notice was sent). Consequently, the presumption of regularity is not rebutted, and the Board does not find his assertion as to late receipt of the April 2013 statement of the case to be persuasive. The Board has sympathetically considering the arguments on appeal, including the appellant'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 April 2013 statement of the case must be denied. ORDER The appeal as to whether a substantive appeal was timely filed in response to an April 2013 statement of the case is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs