Citation Nr: 19145131 Decision Date: 06/11/19 Archive Date: 06/11/19 DOCKET NO. 18-15 184 DATE: June 11, 2019 ORDER A VA Form 9 (substantive appeal) having been timely filed as to a September 2015 Statement of the Case (SOC), reinstatement of the underlying appeal is granted. FINDING OF FACT The record is adequate to rebut the presumption of regularity in the mailing of the September 2015 SOC, where the Veteran, by way of his attorney, sent letters before and after the RO issued the September 2015 SOC, inquiring when the RO would be mailing the SOC to the Veteran and his attorney. CONCLUSION OF LAW The criteria for a timely filed VA Form 9 (substantive appeal) as to the September 2015 SOC have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from May 1985 to June 1989 and from January 1991 to April 1991. This matter is on appeal from an April 2016 RO decision finding that the Veteran’s VA Form 9, received on April 7, 2016, was not timely filed in response to a September 2015 SOC. 1. Whether a VA Form 9 (substantive appeal) was timely filed as to a September 2015 SOC. An appeal consists of a timely filed notice of disagreement (NOD) in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date the 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, whichever period ends). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The time to appeal a VA decision does not does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his appellate rights. See Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Moreover, the filing of a timely substantive appeal, as opposed to a NOD, is not a jurisdictional bar to the Board’s jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness about a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A “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.’ Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926)).” Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by “clear evidence” that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed.Cir.2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (holding that an appellant bears burden of demonstrating error on appeal). Analysis By way of background, the Veteran filed requests for findings of clear and unmistakable error (CUE) in the rating decision dated February 2, 2000 with respect to the Veteran’s claims for service connection for hysterectomy, endometriosis, mitral valve prolapse (CDA), and special monthly compensation based on anatomical loss from hysterectomy. The RO denied the claims in a February 2014 rating decision. In March 2014, the Veteran filed a timely NOD with the rating decision. An SOC was apparently prepared in September 2015. The Veteran’s substantive appeal was then received in April 2016. The question for the Board is whether the Veteran timely filed his substantive appeal or, if not, whether his substantive appeal should be accepted as timely filed. The claims file shows that the RO prepared the SOC in September 2015. At this point, the presumption of regularity would normally dictate that the RO staff properly mail the letter to the Veteran and his attorney. However, the attorney has asserted that he or the Veteran did not actually receive a copy of the SOC. See, e.g., April 2016 Attorney Correspondence. His statement, alone, is not sufficient by itself to overcome the presumption of regularity. However, other indicators in the file support his statement. First, the SOC does not copy the attorney’s name or the address on the form. Instead, the form states: AGENT OR PRVT ATTY-EXCLUSIVE CONTACT NOT REQUESTED. Moreover, after the Veteran timely filed the NOD, his attorney sent letters before and after the RO issued the September 2015 SOC, inquiring when the RO would be mailing the SOC to him and the Veteran. See August 2015 Attorney Correspondence (attorney following up on the NOD and requesting issuance of an SOC); January 2016 Attorney Correspondence (inquiring about and requesting issuance of an SOC); April 6, 2016 Attorney Correspondence (inquiring about and requesting issuance of an SOC). This indicates that neither the Veteran nor his attorney was aware that the SOC had been prepared. Additionally, the claims file includes an April 7, 2016 Attorney Correspondence, in which the Veteran’s attorney states that he contacted the Atlanta Regional Office and was informed that an SOC was prepared back in September 2015. He reiterated in the letter that he did not receive a copy of the SOC that had been prepared. Again, here, the attorney’s letter indicates that he and the Veteran had not received a copy of the SOC, as he would not likely have communicated and asked for the status of the appeal if he had known the SOC had already been issued. Moreover, the attorney immediately submitted the VA Form 9 substantive appeal the same day he learned from the Atlanta Regional Office that one had been issued back in September 2015. This indicates that the Veteran and his attorney, who were being proactive in pursuing the claims, would have likely already filed the substantive if they had received the SOC. Taken together, this information is sufficient to rebut the presumption of mailing. See Chute v. Derwinski, 1 Vet. App. 352, 353 (1991) (evidence may be sufficient to rebut the presumption of regularity where the appellant wrote to his representative indicating that he did not receive the mailing, such as by asking for information about the status of his appeal). Because the presumption of mailing has been rebutted, the burden of proof is on VA to show that the SOC was actually placed into the U.S. Postal Service system. See Rios v. Mansfield, 21 Vet. App. 481, 482-83 (2007). To this extent, there is no evidence, such as an independent proof of a postmark, a dated receipt, or like evidence, establishing the mailing back in September 2015. Indeed, the address of the attorney was not on the SOC form; instead, the form states: AGENT OR PRVT ATTY-EXCLUSIVE CONTACT NOT REQUESTED. As such, there is no evidence to find actual proof of mailing in September 2015. See id. The record only indicates, by way of a May 2016 letter from the Veteran’s attorney, that a copy of the SOC was finally mailed to him in May 2016, after his April 2016 communication with the Atlanta RO. See May 2016 Attorney Correspondence (“only now did the Atlanta Regional Office forward a copy of the September 7, 2015 SOC to me.”). On the basis of these unique facts, the Board finds the current substantive appeal should be treated as timely filed. As such, the appeal of the timeliness issue is granted, and the appeal of the underlying claims should be reinstated. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, 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.