Citation Nr: 20005180 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 14-09 226A DATE: January 24, 2020 REMANDED The issue of whether a timely notice of disagreement (NOD) was filed as to an August 2015 decision that found that the Veteran’s March 2014 substantive appeal was not timely is remanded. REASONS FOR REMAND The Veteran had active service from October 1973 to January 1982. Whether a timely NOD was filed as to an August 2015 decision that found that the Veteran’s March 2014 substantive appeal was not timely, is remanded. At issue is whether the Veteran, through his representative, filed a timely NOD as to an August 2015 decision that found that the Veteran’s March 2014 substantive appeal was not timely. The Veteran’s due process rights have not been fully accorded to him and the Board will remand the claim. An appeal to the Board begins with the NOD contesting the RO's denial of a benefit sought by the claimant. The claimant, or his or her representative, must file the NOD within one year from the date that that agency mails notice of the determination. The date of the mailing of this letter 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. Both the claimant and the representative are entitled to notice of such decisions. 38 C.F.R. § 3.103(b). As for representation, the Board notes that the claims file includes an October 2004 power of attorney (POA) in favor of American Legion. In August 2012, the Veteran executed a POA in favor of claims agent Christopher Loiacono. The Board recognizes Mr. Loiacono as the Veteran's current representative in connection with this claim. The Veteran was notified in August 2015 that his March 2014 substantive appeal was not timely. The Board notes that the Veteran’s representative at that time was Mr. Loiacono. However, the August 2015 decision letter was not sent to Mr. Loiacono. The NOD forwarded by Mr. Loiacono to the August 2015 letter was received in September 2019, more than one year after the decision notification letter. In this NOD, Mr. Loiacono asserted that he did not receive the notification of the August 2015 decision, and that VA did not provide notice of that decision to him. Mr. Loiacono stated that he instead learned of the decision during a September 2019 conversation with the Regional Office. The Veteran has not been accorded due process. 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. Evidence of nonreceipt by either a veteran or a veteran's representative, standing alone, is not the type of clear evidence to the contrary that would be enough to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992). This presumption applies to VA regional offices. Mindenhall v. Brown, 7 Vet. App. 271 (1994). However, the presumption of administrative regularity has been rebutted in this case. While the January 2014 statement of the case specifically lists Mr. Loiacono as the Veteran’s representative, the August 2015 notification letter regarding the untimely March 2014 substantive appeal does not. In fact, the record contains correspondence dated after the August 2015 notification letter from Mr. Loiacono, on behalf of the Veteran, in which Mr. Loiacono requests notification advising of the status of the Veteran’s case. This evidence, and the other evidence of record indicate that the August 2015 decision notification letter was neither sent to nor received by Mr. Loiacono. Thus, the presumption of regularity is rebutted. Therefore, the Board must remand for the issuance of a SOC. This matter is REMANDED for the following action: Provide the Veteran and his current representative (Mr. Loiacono) with a statement of the case (SOC) with respect to the issue of whether a timely NOD was filed as to an August 2015 decision that found that the Veteran’s March 2014 substantive appeal was not timely. Inform the Veteran of the requirements to perfect an appeal with respect to this issue. If the Veteran perfects an appeal with respect to this issue, ensure that all indicated development is completed before the case is returned to the Board for further appellate action. (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.