Citation Nr: 21002165 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-38 990 DATE: January 12, 2021 ORDER As the Agency of Original Jurisdiction (AOJ) received a timely notice of disagreement regarding the March 2011 rating decision, the appeal is granted. FINDING OF FACT 1. On March 7, 2011, the AOJ notified the Veteran of the March 2011 rating decision. 2. The evidence is evenly balanced as to whether the RO received the Veteran’s notice of disagreement on March 2, 2012. CONCLUSION OF LAW The criteria for a timely notice of disagreement regarding the March 2011 rating decision are met. 8 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 19.21, 19.52, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1974 to June 1979 and from January 1981 to January 1984. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 administrative decision issued by the Department of Veterans Affairs (VA) which determined that the NOD received on March 30, 2012 to a March 2011 rating decision was untimely. The Veteran’s notice of disagreement (NOD) was received in May 2015. The RO issued a statement of the case (SOC) in October 2015. The Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2015. In August 2018, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In an August 2020 Order, the Court vacated the Board’s August 2018 decision and remanded the matter pursuant to an August 2020 Joint Motion for Remand (JMR). The Veteran’s contends that his NOD should be considered timely as to the March 2011 rating decision. Specifically, he asserts that evidence shows that he submitted his letter of disagreement to his representative in February 2012. His representative submitted the letter of disagreement to the VA on March 1, 2012, six days before the stated deadline. See April 2015 NOD. Under VA regulations, a legacy appeal consists of a timely filed written NOD and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal.  38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.22, 19.29, 19.51, 19.52. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal.  38 C.F.R. § 19.22. With respect to a NOD, prior to March 24 ,2015 a NOD consists of a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. 38 C.F.R. 20.201 (2014). A claimant or his representative must file a NOD within one year from the date that the AOJ mailed notice of a decision. 38 C.F.R. § 19.52. If a NOD is not filed within the one-year time period, the decision becomes final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 19.52, 20.1103. An untimely NOD deprives the Board of jurisdiction to consider the merits of an appeal.  38 U.S.C. § 7105(c). The issue of whether a NOD has been filed on time is appealable. 38 C.F.R. § 19.34. While the Board may waive the issue of the timeliness of a substantive appeal, an untimely NOD is a jurisdictional bar to appellate consideration, and the issue may not be waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). In a March 2011 rating decision, the RO, inter alia, granted service connection for bilateral hearing loss assigning a noncompensable disability rating and denied entitlement to service connection for major depressive disorder. The RO notified the Veteran of this decision in a March 7, 2011 correspondence at his correct, current address of record. A NOD letter dated March 1, 2012 from the Veteran’s representative has two date stamps. One is dated March 2, 2013 at the VARO Houston mailroom and the other is dated March 30, 2012 at the VARO New Orleans mailroom. The Veteran indicated he disagreed with the March 2011 rating decision in a Statement in Support of Claim form dated February 23, 2012. This form also contains two date stamps. One is dated March 2, 2013 at the VARO Houston mailroom and the other is dated March 30, 2012 at the VARO New Orleans mailroom. The claims file also contains the same March 1, 2012 letter from the representative and the February 24, 2012 Statement in Support of Claim form with only the date stamp of March 2, 2013 from the VARO Houston mailroom. The date stamps are confusing as it appears that the NOD was first date stamped on March 2, 2013 and afterwards was date stamped on the earlier date of March 30, 2012. Thus, there is an indication that the March 2, 2013 date stamp is incorrect as it is not possible for the NOD to be first date stamped in 2013 and then in 2012. The United States Court of Appeals for Veterans Claims (Court) has held that there is a “presumption of regularity” under which it is presumed that government officials have properly discharged their official duties. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)); Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by “clear evidence” that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (holding that an appellant bears burden of demonstrating error on appeal). In this case, the evidence clearly rebuts that presumption of regularity as it is not possible for the NOD to be date stamped March 2, 2013 prior to the NOD being date stamped March 30, 2012. As such, the Board finds beyond any reasonable dispute that the NOD date stamped March 2, 2013 was received by the RO in Houston, Texas prior to the second date stamp of March 30, 2012 by the RO in New Orleans, Louisiana. While the precise date the RO initially received the Veteran’s NOD is unknown, it is most likely that there was a clerical error in the selection of the year on the date stamp and the NOD was received by the RO on March 2, 2012, rather than March 2, 2013 date shown on the NOD, which is within one year of the March 8, 2011 notification letter of the March 2011 rating decision. This would be consistent with lay statements provided by the Veteran and his representative as to when they submitted the NOD to the March 2011 rating decision, as well as, date provided by the Veteran’s representative on the NOD letter. See, e.g., Romero v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2104. (Continued on the next page)   In light of the definite irregularity of the RO with respect to the date stamp of the NOD and affording the Veteran all reasonable doubt, the Board finds that the NOD was received within one year from the date of the letter notifying the Veteran of the March 2011 rating decision and therefore, the Veteran timely filed the NOD. Accordingly, the appeal of the timeliness of the NOD is granted and the legacy appeal as to the issues of entitlement to service connection for major depression and entitlement to an initial compensable rating for bilateral hearing loss in the March 2012 NOD should be reinstated. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.