Citation Nr: 20037533 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-27 256 DATE: June 2, 2020 ORDER A timely substantive appeal was filed in response to a February 2012 statement of the case (SOC) and the appeal is granted. FINDINGS OF FACT 1. The February 2012 SOC was sent to the incorrect representative. 2. A copy of the February 2012 SOC was sent to the Veteran’s representative no earlier than March 18, 2016. 3. Within 60 days of receiving the February 2012 SOC, the Veteran’s representative filed a substantive appeal on the Veteran’s behalf. CONCLUSION OF LAW A timely substantive appeal was filed to the February 2012 SOC. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.30, 19.32, 20.200, 20.202, 20.302, 20.303 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1976 to October 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 determination of a Department of Veterans Affairs (VA) Regional Office (RO). The decision found that the Veteran’s substantive appeal to a February 2012 SOC, which denied an increased rating for hypertension and service connection for an acquired psychiatric disorder, was untimely. The Board notes that the Veteran did not request a hearing with regard to this appeal, but in the May 2016 substantive appeal for the underlying issues of entitlement to an increased rating for hypertension and service connection for an acquired psychiatric disorder, a hearing before the Board was requested. This matter will be addressed, when appropriate, after the issuance of this decision. Whether a substantive appeal was timely filed in response to a February 2012 SOC. The Veteran contends that the substantive appeal filed in May 2016 to the February 2012 SOC should be considered timely filed. For the reasons that follow, the Board finds that the Veteran’s substantive appeal was timely filed. An appeal consists of a timely filed written notice of disagreement (NOD) and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. The SOC will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative. 38 C.F.R. § 19.30(a). 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. Proper completion and filing of a substantive appeal are the last actions an appellant needs to take to perfect an appeal. Id. The substantive appeal must be filed within 60 days from the date that notification of an SOC is sent to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014). This presumption may only be rebutted with “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307, 310 (1999). Such evidence includes “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Boyd, 27 Vet. App. at 72. The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. Id. However, the presumption of regularity may be rebutted where there is evidence that (a) VA used an incorrect address on the mailing in question or (b) the mailing was returned as undeliverable and “there were other possible and plausible addresses available to VA” at the time. Id. at 72. Turning to the evidence of record, the Veteran filed a claim for an increased rating for his hypertension and service connection for a psychiatric condition in April 2009. In response, the RO issued a September 2009 rating decision denying both claims, and the Veteran subsequently filed a timely notice of disagreement to the September 2009 rating decision. At this time, the Veteran was represented by a state service organization. In November 2010, a valid VA 21-22a was filed that appointed a private attorney from the law firm F.P. as the Veteran’s representative. In February 2012, the RO issued an SOC to the September 2009 rating decision continuing the denials of an increased rating for hypertension and service connection for a psychiatric disorder. The accompanying notification letter shows a date of February 1, 2012, and the Veteran’s latest address of record. However, the letter shows that a carbon copy of the SOC was sent to the state service organization that initially represented the Veteran rather than his then-current representative, a private attorney. A review of the record shows that from 2012-2013, the Veteran’s then-current representative submitted multiple requests for additional development, to include asking the RO to obtain in-service hospital records in support of the Veteran’s claims. In August 2014, a new VA 21-22a was filed appointing another private attorney, also from F.P. A review of the record shows that from 2014 to 2016 the representative submitted multiple requests for a copy of the Veteran’s claims file. A copy of the claims file was finally provided to the representative on March 18, 2016. See March 2016 privacy act response. On May 10, 2016, the representative filed a substantive appeal to the February 2012 SOC, explaining that she did not receive a copy of the SOC until the March 2016 privacy act response and that the Veteran’s prior representative had never received a copy. The RO declined to accept the substantive appeal as timely, and this appeal ensued. Based on the foregoing, the Board finds that the May 2016 substantive appeal should be accepted as a timely appeal to the February 2012 SOC. In essence, the Veteran and his representative contend that they did not receive a copy of the SOC until March 2016; any presumptions as to regularity of governmental operations (e.g., mailing) have been rebutted; that the time for the filing the appeal did not start to toll until March 2016; and thus the May 2016 substantive appeal was timely. As noted above, pursuant to 38 C.F.R. § 19.30(a), the Veteran’s representative must receive a copy of the SOC. Ordinarily, the presumption of regularity would allow the Board to presume that a copy of the SOC was sent to the Veteran’s then-current representative. However, the Board finds there is clear evidence to rebut such presumption. First, the notification letter that accompanied the February 2012 SOC clearly states that a copy was sent to the incorrect representative. At the time of the issuance of the February 2012 SOC, the Veteran’s accredited representative was a private attorney, yet, the notification letter lists a state service organization as receiving the copy. Moreover, correspondence from the Veteran’s then-current representative following issuance of the February 2012 SOC further indicates that he did not receive a copy of the SOC. Specifically, the attorney continued to request that additional development be completed. Had the attorney received a copy of the SOC, he presumably would have submitted a substantive appeal in addition to/rather than requesting additional development. The fact that the attorney continued to request that development be undertaken indicates that he still believed the RO was developing the Veteran’s claims. Furthermore, the evidence of record supports the assertion that the Veteran’s representative did not receive a copy of the SOC until a copy of the claims file was provided to her on March 18, 2016. Upon receiving notification of the SOC in March 2016, the representative filed a substantive appeal in May 2016, within 60 days of the date of the privacy act response. The Board notes that the May 2018 SOC from which this appeal regarding timeliness stems also notes that a copy was sent to the state service organization and not the proper representative. Yet, the Veteran’s representative clearly received a copy of that SOC. However, as the substantive appeal was filed within one day of the issuance of the May 2018 SOC, it is reasonable to assume that the Veteran’s representative received notification of the SOC through VBMS or other electronic means and not via U.S. mail. Thus, even though the Veteran’s representative received a copy of the May 2018 SOC despite it listing the incorrect representative, such is not enough to conclude that the same is true for the February 2012 SOC. The Board also acknowledges that the Veteran has contended that he himself did not receive a copy of the February 2012 SOC. However, as the Board finds that a timely substantive appeal was filed based on other grounds, the Board will not address the Veteran’s contention. In sum, the Board concludes that the evidence noted above constitutes clear evidence that rebuts the presumption of regularity as to notifying the Veteran’s representative of the February 2012 SOC at time it was mailed. The evidence supports the contention that the Veteran’s representative did not receive a copy of the SOC until March 18, 2016. The RO received a substantive appeal on May 10, 2016, within 60 days of the Veteran’s representative receiving a copy of the SOC. Accordingly, the Board finds that the Veteran’s May 2016 substantive appeal was timely filed and the appeal is granted. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.