Citation Nr: 19167478 Decision Date: 08/29/19 Archive Date: 08/29/19 DOCKET NO. 16-13 503 DATE: August 29, 2019 ORDER The appeal as to whether an August 11, 2015 substantive appeal (VA Form 9) was timely filed is denied. FINDINGS OF FACT 1. In June 2014, the Veteran filed a timely notice of disagreement (NOD) appealing all issues adjudicated in a July 2013 rating decision. 2. On April 23, 2015, the Department of Veterans Affairs (VA) mailed a statement of the case (SOC) addressing the issues listed in the Veteran’s June 2014 NOD to the Veteran and his representative. The April 23, 2015 SOC was addressed to the Veteran’s correct mailing address of record and was copied to the Veteran’s representative. 3. VA received the Veteran’s VA Form 9 to the April 23, 2015 SOC on August 11, 2015. 4. The evidence submitted by the Veteran, such as lay statements and his testimony at the March 2019 Board of Veterans’ Appeals (Board) hearing, is not clear evidence sufficient to rebut the presumption that the April 23, 2015 SOC was mailed to the Veteran. CONCLUSION OF LAW The August 11, 2015 VA Form 9 was not received in a timely manner. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1983 to September 1991. This matter comes before the Board on appeal from an August 2015 administrative decision by VA. In March 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At such time, the Veteran requested to hold the record open until June 2019. The Board observes that, following the issuance of the February 2016 SOC, additional evidence, to include treatment records and buddy statements, was associated with the record. While the Veteran has not waived AOJ consideration of such evidence, the Board finds that there is no prejudice to his in proceeding with a decision at this time as such evidence is either duplicative or irrelevant to instant matter. 38 C.F.R. § 20.1304 (c). Whether a VA Form 9 received on August 11, 2015 was timely filed. The Board’s authority to review an adverse AOJ decision is initiated upon a claimant’s submission of a NOD and completed by a substantive appeal after a SOC has been furnished. 38 U.S.C. § 7105 (a); 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 when the AOJ mails the SOC to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 C.F.R. § 20.302 (b)(1). In determining its jurisdiction, the Board recognizes that the VA adjudicative system is non-adversarial and pro-claimant in nature, wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). 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 SOC (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101 (d). There is a presumption of regularity that VA properly discharged official duties by mailing a copy of a VA decision to the last known address of the claimant and the claimant’s representative, if any, on the date that the decision is issued. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (applying the presumption of regularity to official duties of the RO). The claimant may rebut that presumption by submitting “clear evidence to the effect that VA’s regular mailing practices are not regular or that they were not followed. See generally, Crumlich v. Wilkie, No. 17-2630 (June 6, 2019). The burden then shifts to the Secretary to establish that the VA decision was mailed to the claimant.” See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Absent evidence that the claimant notified VA of a change of address, VA failed to properly discharge its duties, and absent evidence that any notice sent to the claimant at his last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996); Crumlich, supra. By way of background, in June 2014, the Veteran filed a timely NOD appealing all issues adjudicated in a July 2013 rating decision. After receipt of a June 2014 NOD, the AOJ issued an April 23, 2015 SOC addressing the issues listed in the Veteran’s June 2014 NOD to the Veteran. On August 11, 2015, the Veteran filed a VA Form 9, and later that same month, the AOJ notified the Veteran that the VA Form 9 was untimely. This appeal followed. After a full review of the record, the Board finds that the Veteran did not perfect a timely substantive appeal. He had until one year after the July 10, 2013 rating decision, or until 60 days after the April 23, 2015 SOC (i.e., June 22, 2015) to perfect a timely VA Form 9. Moreover, the Veteran’s August 11, 2015 VA Form 9 was received almost two months after the deadline. The Board recognizes that VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The Board cannot raise a timeliness objection if the appellant filed an untimely substantive appeal and the AOJ nonetheless treated the claim as timely appealed for more than five years and certified the issue to the Board, and after the Board identified the issue at a hearing and took testimony on that issue. See Percy, 23 Vet. App. at 45. In this case, however, there is no indication in the record that VA explicitly or implicitly waived timely receipt of a substantive appeal in the scenarios contemplated by Percy. In fact, the RO did the opposite by promptly notifying the Veteran his appeal was not timely filed and then giving him an opportunity to appeal that adverse determination. As such, the Board finds VA has not waived the issue of the timeliness of the August 11, 2015 VA Form 9. Moreover, a response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the day of receipt of the document by VA. However, this provision would not help the Veteran here because the August 11, 2015 VA Form 9 was received almost two months after the deadline. The Board has considered the Veteran’s argument that his August 11, 2015 VA Form 9 should be considered timely because there were procedural or due process issues, and he did not receive the April 2015 SOC in order to file a timely substantive appeal. See March 2019 Board hearing transcript. He further reports that he had to re-file his NOD and he continued to check to make sure his case was moving forward. Additionally, in an August 2015 statement from the Veteran, he contends that had not been receiving correspondences from the VA and that is why his VA Form 9 was not filed. He also submitted his new mailing address to ensure VA had his correct address. However, the Board rejects those arguments and finds that the Veteran has failed to rebut the presumption of regularity that the AOJ properly discharged its official duties by mailing a copy of the April 23, 2015 SOC to the Veteran’s prior last known addresses. See Woods, 14 Vet. App. 220-21; see also Mindenhall, 7 Vet. App. at 274. At that time the Veteran’s last address of record was used. See also the July 2015 Report of Contact, which contains the same address. It was not until later in July 2015 that the Veteran informed VA of his new address. Moreover, the Veteran’s representative was copied on the April 2015 SOC. However, neither the Veteran nor his representative have shown that the Veteran notified VA of a change of address prior to April 2015. Furthermore, there is no indication that the April 2015 SOC was returned as undeliverable; thus, the AOJ was entitled to rely on the Veteran’s prior last known address. Cross, 9 Vet. App. at 19. In conclusion, given there has been no clear evidence to rebut that the April 2015 SOC was mailed to the Veteran at his correct address, the presumption that VA mailed the SOC remains applicable. Thus, the Board finds that VA submitted the April 2015 SOC to the Veteran as required by statute, and the August 11, 2015 VA Form 9 is not timely. The appeal must be denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.