Citation Nr: 21004520 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-52 934 DATE: January 27, 2021 ORDER The VA Form 9 received June 20, 2017 was not timely received, and the appeal is denied. FINDINGS OF FACT 1. The June 20, 2017 substantive appeal was received more than 60 days after the November 8, 2016 statement of the case (SOC) and more than one year after the November 26, 2013 notification letter of the rating decision denying the Veteran’s claim. 2. The presumption of regularity in the mailing of the SOC has not been rebutted by the evidence. CONCLUSION OF LAW The October 19, 2018, substantive appeal was not timely filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52(b), 19.53. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1963 to December 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Whether June 20, 2017 VA Form 9 Was Timely Background and Legal Criteria Appellate review in the legacy appeals system is initiated by the filing of a notice of disagreement and completed by the filing of a VA Form 9 after an SOC has been issued. A VA Form 9 must be filed within 60 days from the date that the RO mails the SOC to the Veteran, or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. See 38 U.S.C. § 7105 (effective prior to February 19, 2019); 38 C.F.R. §§ 19.20-22 (2019). An extension of the 60-day period for filing a VA Form 9 may be granted for good cause, but such extension request must be made prior to the expiration of the time limit for filing a substantive appeal. See 38 C.F.R. § 19.53. The following facts are not in dispute. The Veteran’s claim for increased ratings for peripheral neuropathy of the lower extremities and carpal tunnel syndrome of the upper extremities and entitlement to TDIU were denied in a November 2013 rating decision and the Veteran submitted a timely notice of disagreement (NOD) in November 2014. The RO issued a SOC on November 8, 2016. Following a telephone call with the Veteran’s representative, the RO mailed a second copy of the SOC on June 15, 2017. See June 15, 2017, Report of General Information; see also June 15, 2017, correspondence. The Veteran filed a substantive appeal, VA Form 9, on June 20, 2017. The RO rejected the June 2017 filing as untimely. The July 2017 decision indicated that the period to file a substantive appeal ended on January 9, 2017. The Veteran disputes the regularity of the mailing of the SOC in November 2016, which would extend the time to file a substantive appeal. In a December 2020 brief, the Veteran’s representative reported that on June 15, 2017 he was informed by a representative from the VA National Status line that the Veteran had not appealed the November 8, 2016 SOC. The VA then sent a copy of the SOC to the Veteran’s representative. A substantive appeal was submitted by the Veteran’s representative on June 20, 2017. He argued that his substantive appeal should be considered timely, as the Veteran’s representative submitted it as soon as he was informed that the November 8, 2016 SOC had been issued. There is a rebuttable presumption of regularity under which it is presumed that the Secretary properly discharged his official duties by mailing a copy of a VA decision to the last known address of a claimant on the date that the decision was issued. See Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). In general, the mere allegation of non-receipt is not sufficient to rebut the presumption. Id. To rebut the presumption, the appellant must establish both that the mailing was returned as undeliverable and was not mailed to the Veteran’s latest address of record at the time of the mailing. Id. The November 2016 SOC was mailed to the latest addresses for both the Veteran and his representative. Cf. February 2015 correspondence. The mailings were not returned as undeliverable. The Veteran asserts that the presumption of regularity should be rebutted in this case relying in large part on Romero v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2104 (Nov. 20, 2020). In Romero, the Veteran’s attorney alleged that he had not received a copy of the Veteran’s SOC and attributed this to mailing inconsistencies at the VA. In support of his argument that the Veteran’s substantive appeal should be considered timely, he submitted three pieces of evidence to the Board and then later to the Court. First, he submitted the 2017 U.S. Government Accountability Office (GAO) report entitled “Actions Needed to More Effectively Manage Outgoing Mail.” Second, the attorney submitted his own sworn statement stating that he was aware of at least 863 instances between July 2015 and May 2018 where VA failed to mail him a copy of a case-related document. He noted that two VBA employees had “acknowledged VA’s continued failure to consistently mail representatives copies of their claimants’ decisional documents.” Third, the attorney submitted a sworn statement by the Executive Director of the National Organization of Veterans’ Advocates, Inc. (NOVA), noting that through communications with representatives accredited to represent claimants before VA, in late 2017 she became aware of 272 examples of VA mailing failures. Based on these submissions, in the Romero decision, the Board indicated there was substantial evidence reflecting a widespread problem with VA not mailing correspondence. The Board ultimately denied the Veteran’s claim, and the Veteran appealed to the Court. The Court held that the presumption of regularity in the VA mailing the Veteran’s SOC to her was rebutted based upon the Board’s finding that the Veteran had provided “substantial evidence…that reflects a widespread problem with VA not mailing correspondence,” along with the attorney’s statement of nonreceipt. The Court found that, while a statement of non-receipt alone is not enough to rebut the presumption, a statement of non-receipt along with other evidence could be. Additional evidence could include clear evidence to the effect that VA’s regular mailing practices were not regular or that they were not followed. In addition, the Court found that while clear evidence of irregularity specific to a particular case may be sufficient to rebut the presumption of irregularity, it is not necessary that the evidence of irregularity be specific to a particular case. While the Veteran in this case has argued that this case is the same as the Romero case, the Board finds that Romero is distinguishable from the current case. The Veteran has submitted a copy of the 2017 GAO report that was also submitted in Romero. However, the Veteran and his representative have not submitted the other evidence mentioned in Romero, in particular, the sworn statements submitted by the Romero attorney and NOVA. These statements were made by attorneys or agents who had themselves experienced mailing issues—not claimant specific, but specific to their own experiences and methods for receiving mail from the VA. In the present case, the Veteran’s representative has offered no such statement. In support of his claim, he submitted a copy of GAO report and affidavits stating that he had not received the November 2016 SOC and neither had the Veteran. He argues that, during the timeframe when the relevant SOC was issued, the evidence shows that there were issues with VA mailing documents to claimants. However, the Veteran’s representative has made no contentions that he himself has experienced difficulties receiving mail from the VA. In this case, in addition to the affidavits of nonreceipt, the only other evidence submitted by this Veteran is the GAO report, which is far too general in scope and insufficient to rebut the presumption. While evidence submitted in addition to a statement of nonreceipt does not need to be claimant-specific, it must provide some “clear evidence” that is factually relevant to the mailing practices applicable to this case. Merely relying on the attestations of other representative’s problems receiving mail from the VA is not sufficient. In this case, there are no indications of irregularities with the VA’s mailing. The record reflects that the SOC was sent to the Veteran at his last known address. Further, a copy of the SOC was mailed to the Veteran’s attorney at the correct address. Notably, the claims file does not include any indication that VA’s November 8, 2016 SOC or correspondence was returned to VA as undeliverable. The addresses were the same addresses to which VA had previously mailed correspondence to the Veteran and his representative; there is no suggestion that any of these correspondences were returned as undeliverable to the Veteran or his representative. Thus, the November 8, 2016 SOC was presumed mailed at that time, and the Veteran had until 60 days from the date of the notice to perfect his appeal. He has not presented evidence sufficient to rebut the presumption of regularity with regard to the mailing of the SOC. The Veteran has also not argued or presented evidence of extraordinary circumstances preventing him from filing his substantive appeal in a timely manner. In reaching this conclusion, the Board has considered the case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the Court found 38 U.S.C. § 7105 was not intended to foreclose the Board’s exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. In the present case, the RO has not taken any action to indicate to the Veteran such issues remain on appeal from the November 2013 rating decision. In this case, the Veteran’s representative was informed by the VA that the Veteran did not appeal the November 2016 SOC. The Veteran’s representative submitted a form 9 following the conversation with VA. Thus, the requirement that there be a substantive appeal was not waived. The facts of this case are distinguished from Percy because in this appeal the Veteran was not misled by actions on the part of VA into believing that he had perfected an appeal as to these issues. Additionally, the deadline for filing a substantive appeal may be (1) extended for good cause if the claimant files a request in writing during the appeal period, 38 C.F.R. § 20.303; or (2) equitably tolled, Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Equitable tolling is justified in “extraordinary circumstances.” McCreary v. Nicholson, 19 Vet. App. 324 (2005). The following three requirements must be met: (1) the extraordinary circumstance must be beyond the claimant’s control, (2) the claimant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the claimant must exercise “due diligence” in preserving his or her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id.; see also Checo v. Shinseki, 26 Vet. App. 130 (2013). There are no allegations of any extraordinary circumstances. The Veteran has only alleged defective mailing on the part of VA and not any extraordinary circumstances. As a result, equitable tolling is not warranted in this case. In summary, the Veteran did not file a substantive appeal following the November 8, 2016 SOC until June 20, 2017, more than 60 days after the issuance of the SOC and more than one year after the issuance of the original rating decision. There are no grounds for equitable tolling in this case. The Board finds that, because the substantive appeal following the SOC was not timely, the June 2017 rating decision is final, and the appeal is denied. 38 U.S.C. §§ 5107, 7105; 38 C.F.R. §§ 3.102, 19.20-22. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.