Citation Nr: 20011684 Decision Date: 02/12/20 Archive Date: 02/12/20 DOCKET NO. 19-00 740 DATE: February 12, 2020 ORDER A timely substantive appeal, or its equivalent, not having been received following the issuance of a Statement of the Case (SOC) on April 26, 2016, the appeal is denied. FINDING OF FACT The substantive appeal received by VA on August 26, 2016 was received more than 60 days following the April 26, 2016 SOC and more than one year following the July 2015 notification of the determination being appealed in this case. CONCLUSION OF LAW A timely substantive appeal was not received following the issuance of the April 26, 2016 SOC. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1959 to September 1961 and from January 1962 to August 1962. In May 2019, a Board videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The Board notes that, although additional VA treatment records were received subsequent to the October 2018 statement of the case (SOC), such evidence is not pertinent to the issue decided herein. Accordingly, remand for initial Agency of Original Jurisdiction consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). Whether the substantive appeal received on August 26, 2016 was timely. An appeal consists of a timely filed notice of disagreement in writing that can be reasonably construed as a disagreement and, after a statement of the case has been furnished, a timely filed substantive appeal (VA Form 9). 38 U.S.C. § 7105; 38 C.F.R. § 20.200. 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 1-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 C.F.R. § 3.302(b)(1). Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within 1 year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with §19.31 of this title, that the claimant be furnished a Supplemental Statement of the Case, then the time to submit a substantive appeal shall end not sooner than 60 days after such Supplemental Statement of the Case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the 1-year appeal period. 38 C.F.R. § 3.302(b)(2). By way of background, the Veteran was notified on July 9, 2015 of the denial of his claim for an increased rating for his low back disorder. He initiated a timely appeal of this decision and, as a result, a SOC was issued on April 26, 2016. Thereafter, his VA Form 9, substantive appeal, was received on August 26, 2016. As the above-cited regulations make clear, and as was explained in the SOC issued on April 26, 2016, the Veteran had 60 days from the date of the April 2016 SOC to file an appeal. He also had “the remainder, if any, of the one-year period from the date of the letter notifying [him] of the action that [he had] appealed.” Nevertheless, the Veteran’s August 26, 2016 substantive appeal was received four months after the SOC and over 13 months after notification of the decision to deny his claim. No additional evidence was received by VA within one year of the notice provided that required a Supplemental Statement of the Case. Notably, the Veteran has not presented evidence that he attempted to file the August 26, 2016 substantive appeal prior to the expiration of the time period. In fact, during the May 2019 Board hearing, he recognized it was untimely. Rather, it is his contention that he was unable to file a timely substantive appeal because he was homeless and had problems with the timeliness of his mail. See May 2019 Board Hearing Transcript. While the Board is sympathetic and certainly understands the hardship that the Veteran has endured as a result of homelessness, it is bound by governing legal authority. In that regard, there is a well-established presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). VA is required only to mail notice to the latest address of record in order for the presumption of regularity to attach. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The record reflects that the Regional Office (RO) mailed a copy of the April 26, 2016 SOC to the Veteran’s address of record, the same address he has continued to use as his most recent address of record (and as was also confirmed at the May 2019 Board hearing). There is no indication in the claims file that the April 26, 2016 SOC was returned as undeliverable. As such, the Board finds that the Veteran has not rebutted the presumption of regularity and he received notification of the April 26, 2016 SOC. Therefore, the Board finds a timely substantive appeal was not received and preponderance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.