Citation Nr: 19136167 Decision Date: 05/09/19 Archive Date: 05/09/19 DOCKET NO. 18-00 109A DATE: May 9, 2019 ORDER The appeal as to whether a November 6, 2017 substantive appeal (VA Form 9) was timely filed is denied. FINDINGS OF FACT 1. In July 2017, the Veteran filed a timely notice of disagreement (NOD) appealing all issues adjudicated in an August 2016 rating decision. 2. On August 16, 2017, the Department of Veterans Affairs (VA) mailed a statement of the case (SOC) addressing the issues listed in the Veteran’s July 2017 NOD to the Veteran and her representative. 3. The August 16, 2017 SOC was addressed to the Veteran’s correct mailing address of record, was copied to the Veteran’s representative, and was addressed to the correct address of record for the Veteran’s representative. 4. The Veteran first filed a VA Form 9 to the August 16, 2017 SOC on November 6, 2017. 5. The evidence submitted by the Veteran, such as communications, reports, and affidavits, is not clear evidence sufficient to rebut the presumption that the August 16, 2017 SOC was mailed to the Veteran and her representative. CONCLUSION OF LAW The November 6, 2017 VA Form 9 was not timely. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1970 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 administrative decision by VA. Whether a VA Form 9 received on November 6, 2017 was timely filed. The Veteran reports that her November 6, 2017 VA Form 9 should be considered timely because her representative did not become aware of an August 16, 2017 SOC until November 2, 2017, and because, as discussed in more detail below, VA has widespread problems with mailing documents. See, e.g., November 2017 correspondence. Once a veteran files a proper NOD, VA must prepare an SOC, copies of which “will be submitted to the claimant and to the claimant’s representative, if there is one.” 38 U.S.C. § 7105(d)(3). A substantive appeal must be filed within 60 days from the date that VA mails the SOC, 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. Id.; 38 C.F.R. § 20.302(b). There is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski (Ashley I), 2 Vet. App. 62, 64-65 (1992). The presumption of regularity may be rebutted by submission of clear evidence to the contrary. Evidence of nonreceipt by either the Veteran or the Veteran’s representative, standing alone, is not the type of clear evidence to the contrary sufficient to rebut the presumption of regularity. This is because such evidence goes to the question of receipt, rather than the question of mailing. When the presumption of regularity has been rebutted, the burden shifts to VA to establish that it was compliant with statute. Id. at 65. In July 2017, the Veteran filed a timely NOD appealing all issues adjudicated in an August 2016 rating decision. See July 2017 NOD. On August 16, 2017, VA issued an SOC addressing all issues noted in the Veteran’s July 2017 NOD. The SOC was addressed to the Veteran at her address of record. The Board notes that the SOC included an apartment number in the Veteran’s address. The Veteran’s most recent correspondence prior to the SOC—her July 2017 NOD—did not contain an apartment number as part of her address. See July 2017 NOD. However, plentiful other correspondence, such as the May 2017 VA 21-22 appointing her representative and her June 2016 claim for benefits, notes that she lived in an apartment—the same one as listed on the SOC. Thus, the Board finds that the SOC was addressed to the Veteran at her correct address of record. The August 16, 2017 SOC also denotes that a copy was being sent to the Veteran’s representative and included an address for the representative. The address on the SOC was the representative’s correct address of record, as indicated in correspondence from the Veteran’s representative in July 2017. See July 2017 NOD attachment. On November 6, 2017, the Veteran’s representative submitted a VA Form 9 appealing all issues in the August 2017 SOC. See November 2017 VA Form 9. He reported that VA filed to send him the August 2017 SOC, and he only first received it on November 2, 2017 because he looked at the electronic claim file. He reported that this has been a recurrent problem that he has notified VA about in the past. He provided a Government Accountability Office (GAO) Report that he states highlights the deficiencies in VA’s management of its mailing operations, stating that “VA is not managing its mail program effectively, as it lacks key elements of an effective mail management program,” and that without “agency-wide…performance measures for mail operations…VA is unable to determine the extent to which its mail operations are efficient and effective.” See November 2017 correspondence (quoting GAO Report). In a December 2017 administrative decision, the Agency of Original Jurisdiction (AOJ) deemed the November 2017 VA Form 9 untimely. See December 2017 administrative decision. The Veteran’s representative has submitted substantial correspondence between him and VA representatives dated prior to the August 2017 SOC explaining that he was not receiving mail from VA, including redacted lists of clients for whom he had not received VA mail. See, e.g., March 2017 email correspondence (received May 2018). In May 2018, he provided an affidavit again detailing that there had been hundreds of instances where his office did not receive case-related documents and that he has missed appeal deadlines as a result. In every case which he filed a substantive appeal beyond the sixty-day appeal deadline, he has notified VA that he did not receive a mailed copy of the decision. In cases that he says VA wrongly rejects an NOD or VA Form 9, the claimant must expend precious time and resources to exhaust the appellate process on the timeliness issue. See May 2018 affidavit. In addition to written correspondence to VA personnel, the Veteran’s representative participated in conference calls with VA personnel, during one of which “we discussed the issues that I had previously communicated to VA staff regarding VA’s failure to mail decision documents affecting my clients to me.” During another conference, VA personnel “acknowledged VA’s continued failure to consistently mail representatives copies of their claimants’ decisional documents….” He also submitted an affidavit by another veteran representative who also described widespread mailing issues at VA. Id. The pivotal issue at hand is whether the August 2017 SOC was mailed to the Veteran and her attorney, and, if so, whether the presumption of regularity is rebutted. In this regard, the Board notes that despite the substantial evidence that the Veteran’s representative has provided that reflects a widespread problem with VA not mailing correspondence, there is no clear evidence that VA did not mail the actual August 2017 SOC to the Veteran or her representative to the addresses listed on the SOC. Further, any statement provided by the Veteran’s representative that he did not receive the August 16, 2017 SOC is not sufficient to rebut the presumption of regularity because the Court has made clear that evidence of non-receipt alone is not relevant to the issue of whether a document was mailed. See Ashley v. Derwinski (Ashley I), 2 Vet. App. 62, 65 (1992). The Board notes that the Court in Ashley I found that a statement from a VA employee who specifically reviewed that Veteran’s claim file and specifically discussed the Board’s regular mailing practices as applicable to the Veteran’s case file constituted clear evidence to rebut the presumption that the Board mailed a copy of its decision to the Veteran’s representative. See Ashley I, 2 Vet. App. at 66-67. The Court has also consistently indicated that evidence that clearly rebuts the presumption should be specific to the facts of the case at hand. See Clarke v. Nicholson, 21 Vet. App. 130, 135 (2007) (discussing clear evidence in the context of an addressing error); YT v. Brown, 9 Vet. App. 195, 199 (1996) (discussing that there was no evidence an SOC was returned as undeliverable); Chute v. Derwinski, 1 Vet. App. 352, 353 (1991) (finding clear evidence when VA was unable to produce a copy of the decision coversheet demonstrating the decision was mailed); cf. Schoolman v. West, 12 Vet. App. 307, 311 (1999) (holding that benefit of the doubt doctrine does not apply to rebut presumption of regularity of mailing). Although the Court later ruled on a motion for reconsideration in Ashley brought about due to new evidence and the disavowal of the original statement, the reasoning behind the initial finding by the Court remained undisturbed. See Ashely v. Derwinski (Ashley II), 2 Vet. App. 307, 309-11. Here, the Veteran has not submitted any evidence specific to this Veteran’s file or the mailing practices as applicable to the handling of this Veteran’s case. All of the evidence submitted discusses general VA mailing deficiencies and does not directly discuss the August 16, 2017 SOC that is at the heart of this matter. The Board notes that in the numerous communications the Veteran’s representative provided, there is no evidence or admission by VA indicating that the actual August 16, 2017 SOC was not mailed. At most VA acknowledged—not in the context of discussing this Veteran’s case—a widespread problem with mailing, which is not any more specific than the information contained in the GAO Report. Because there is little, if any, evidence that the August 16, 2017 SOC in this case was not mailed to the Veteran and her representative at the correct addresses of record, the evidence provided does not clearly rebut the presumption that the August 16, 2017 SOC was mailed. Because there has been no clear evidence to rebut that the August 16, 2017 SOC was mailed to the Veteran and her representative at their correct addresses, the presumption that VA mailed the SOC remains applicable. Thus, the Board finds that VA submitted the August 16, 2017 SOC to the Veteran and her representative as required by statute, and the November 2017 VA Form 9 is not timely. Consequently, the issue must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.