Citation Nr: 20021273 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-51 459 DATE: March 25, 2020 ORDER The December 2016 Notice of Disagreement (NOD) was timely received. FINDING OF FACT The Veteran was sent a rating decision in November 2015. However, the Veteran’s representative did not receive the rating decision until November 2016. The Veteran’s December 2016 NOD in response to the October 2015 rating decision is considered timely. CONCLUSION OF LAW The notice of disagreement received on December 2016 was timely received. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.109, 19.32, 20.202, 20.302, 20.303, 20.305, 20.1103 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to July 1969. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Saint Petersburg, Florida. The December 2016 Notice of Disagreement (NOD) was timely received. A notice of disagreement (NOD) is to be filed within one year from the date of mailing of notice of the result of initial review or determination. 38 U.S.C. § 7105; 38 C.F.R. § 20.302; see also Sims v. Shinseki, 578 F.3d 1332 (2009). As applicable to this appeal, a NOD is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (2009). The filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination. 38 C.F.R. § 20.304. The question before the Board is limited to whether a timely NOD was received for the October 2015 rating decision. The Board finds that a timely NOD was received. It is important to note that the issue before the Board is narrow. This decision does not address the finality of the October 2015 rating decision and instead is focused solely on whether a timely notice of disagreement was received. Here, in October 2015, the RO granted service connection for peripheral neuropathy, left and right lower extremity with an evaluation of 10 percent effective August 5, 2015, peripheral neuropathy of left and right upper extremity with an evaluation of 20 percent effective August 5, 2015, individual employability, and basic eligibility to Dependents’ Educational Assistance established from May 19, 2015. The RO further denied service connection for claustrophobia, and insomnia with nightmares. Notice of that decision was mailed to the Veteran November 2015. In January 2016, the Veteran’s representative submitted a letter requesting a copy of the VA decision concerning the aforementioned claims, as he reported neither he nor the Veteran had received the decision. In February 2016, a Privacy Act Request notice was provided for the Veteran’s representative concerning the assigned case number for the VA decision request. In May 2016, the Veteran, by way of his representative, resubmitted his Application for Increased Compensation Based on Unemployability. In June 2016, the VA informed the Veteran’s representative that the Veteran’s claim for individual unemployability had been previously granted with an effective date of May 2015. Again, in November 2016, the Veteran’s representative notified the VA that he had yet to receive notification of the RO’s decision concerning the aforementioned claims. In November 2016, the Veteran’s privacy act request was granted, and the October 2015 rating decision was mailed to the Veteran’s representative. A NOD dated December 2016 was submitted in connection with the October 2015 rating decision, noting that the doctrine of equitable tolling applies to the appeal, as neither the representative nor the Veteran received the October 2015 rating decision. VA issued a letter in December 2016, indicating that the NOD was untimely. A NOD with this timeliness decision was received by the VA in February 2017. After a review of the record, the Board finds the December 2016 NOD to be timely. The Veteran argues that VA failed to provide him and his representative notice of the October 2015 rating decision. The Board has no reason to disbelieve the Veteran’s or his representatives’ statements. The Veteran was sent notification of the October 2015 rating decision in November 2015. No mail was returned to VA as undeliverable after the notification letter was issued in November 2015. However, there is nothing of record indicating notification was sent to the Veteran’s representative. Twice the Veteran’s representative requested a copy of the decision. See January and November 2016 Third-Party Correspondence. The record reveals a copy was finally mailed to the representative in November 2016, by way of a privacy act request. Once the RO makes a decision, the rating decision must be sent to the Veteran and his representative. The Veteran then has one year to file a timely notice of disagreement. VA’s failure to mail the rating decision to both the Veteran and the Veteran’s representative tolls the filing period until such error is cured. See Chadwick v. Derwinski, 1 Vet. App. 74, 76 (1990) (holding that the time to file an appeal was tolled because the statute requiring the Board to mail a decision to both the Veteran and the Veteran’s representative was “written in the conjunctive, and a mailing made only to the claimant’s authorized representative violates this statutory requirement.”) (Continued on the next page)   There is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 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 which would be 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. See id. at 64-66 (discussing the presumption of regularity in the context of the Board’s duty to mail copies of a Board decision to a Veteran’s representative). In this instance, and with affording the Veteran the benefit of the doubt, the Board finds that the most probative evidence of record are the Veteran’s representative’s statements to VA in which he reported that he was not provided with notice of the October 2015 rating decision prior to November 2016. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.158, 3.655; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). There is no contradictory evidence to show the October 2015 rating decision was mailed to the Veteran’s representative prior to November 2016. Thus, the time to file a notice of disagreement was tolled until November 2016. Because the December 2016 NOD was received within one year of that date, the notice of disagreement is timely, and the appeal is granted. See 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.109, 19.32, 20.202, 20.302, 20.303, 20.305, 20.1103 (2018). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.