Citation Nr: 21005234 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 18-31 155 DATE: January 29, 2021 ORDER The appeal as to whether a VA Form 9, received February 2, 2018, was timely filed as a substantive appeal is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2017, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. A September 2017 SOC is presumed have been sent to the Veteran and his attorney, and the Veteran has not submitted clear evidence to the effect that VA’s “regular” mailing practices are not regular or that they were not followed. 2. No document that may be construed as a substantive appeal was received within 60 days from the mailing of the September 2017 SOC, nor was any such document received within the one-year period from the mailing of the June 2016 rating decision. CONCLUSION OF LAW A substantive appeal to a June 2016 rating decision was not timely received. 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.103, 19.32, 20.200, 20.300, 20.302, 20.303, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1980 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2018 administrative decision. 1. Whether a VA Form 9, received February 2, 2018, was timely filed as a substantive appeal. In the May 2018 administrative decision, the VA regional office (RO) determined that a VA Form 9, received February 2, 2018, was not timely. 05/01/2018, Correspondence. The Veteran is appealing this decision. 05/30/2018, NOD. Under the relevant regulations, a substantive appeal must be filed within 60 days from the date the regional office (RO) mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed. 38 C.F.R. §§ 20.200, 20.300, 20.302 (2017). Otherwise, the rating decision on appeal becomes final. See 38 C.F.R. § 20.1103 (2017). In this case, the record reflects that VA issued an SOC in September 2017. 09/18/2017, SOC. A Form 9, however, was not received within 60 days after issuance of the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed (dated June 2016). Rather, the Veteran’s Form 9 was received in February 2018, 02/02/2018, Form 9. The Veteran’s attorney asserts that the Veteran’s Form 9 was submitted in February 2018 due to “VA’s irregular and inadequate mailing practices.” In this regard, the attorney has indicated that neither he nor the Veteran were notified of the September 2017 SOC, and that he only became aware of the SOC on January 30, 2018, upon searching the Veterans Benefits Management System (VBMS). The attorney argues that the presumption of regularity should not attach to VA mailing, as the United States Government Accountability Office (GAO) has acknowledged a widespread problem with VA’s failure to properly mail correspondence, and asserts that, even if the presumption does attach, the Veteran has submitted enough evidence to rebut the presumption. Alternatively, the attorney asserts that evidence received within 60 days of the September 2017 SOC constituted new and material evidence received within the applicable appeal period, such that 38 C.F.R. § 3.156(b) (2017) applied and finality did not attach to the September 2017 SOC until the RO considered such evidence. 11/19/2020, Third Party Correspondence. *** 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. 307, 308-309 (1992). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the AOJ level. The presumption of regularity is not absolute; it may be rebutted by the 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. However, where an appellant submits clear evidence to the effect that VA’s “regular” mailing practices are not regular or that they were not followed, the Secretary is no longer entitled to the benefit of the presumption and the burden shifts to the Secretary to establish that the VA decision was mailed to the veteran and the veteran’s representative, if any, as required by 38 U.S.C. § 7104(e). Ashley, 2 Vet. App. at 308-309. As mentioned, the Veteran’s attorney argues that the presumption of regularity should not attach to VA mailing, and asserts that, even if the presumption does attach, the Veteran has submitted enough evidence to rebut the presumption. In this regard, the Veteran’s attorney has indicated that “VA’s failure to notify my office of decisional documents has been an ongoing and growing problem” and that he has repeatedly expressed to VA officials his concern that VA’s mailing system is no longer regular, adding that he has been sending updated lists of cares when this occurs to VA’s Director at the Office of Business Integration. 01/31/2018, Third Party Correspondence; 02/02/2018, Affidavit. He has also submitted e-mail correspondence between himself and VA officials, regarding these mail issues. 02/02/2018, Third Party Correspondence; 05/30/2018, Email Correspondence. In May 2018, he submitted a six-page affidavit detailing both his office’s history of issues with VA mailings and his communications with VA officials to try to resolve these issues. Notably, he stated that, in July 2015, his office began to track instances of VA’s failures to mail case-related documents to him, identifying (as of May 23, 2018) at least 863 instances where VA failed to mail him a copy of a case-related document. 05/30/2018, Correspondence. Furthermore, the Veteran’s attorney has submitted a copy of a July 2017 GAO report to the Chairman of the Committee on Veterans’ Affairs of the House of Representatives, regarding VA’s management of its mail program. 02/02/2018, Third Party Correspondence, at 2-24. The report examined “the extent to which VA manages its outgoing mail effectively.” As explained in the report’s executive summary, GAO identified key elements of an effective mail management program from federal regular and internal control standards, reviewed VA-reported mail expenditure and volume data for fiscal years 2015 and 2016, collected information on mailing practices at 10 VA facilities with the highest mail volume in fiscal year 2015; and interviewed representatives of VA, GSA, the U.S. Postal Service, VA’s two primary mailing equipment vendors, and two of the nation’s largest veterans service organization. Id. at 3. The report concluded the following: VA faces challenges in ensuring that its resources are effectively allocated across the agency. Because it lacks key elements of an effective mail management program, VA cannot provide assurance that facilities are managing their mail efficiently. First, because VA lacks a plan for how to source mailing equipment strategically, it cannot track mail costs accurately and may be losing opportunities for cost savings and efficiencies. Second, because VA has not updated its mail policy to establish agency-wide performance measures for mail operations, its ability to evaluate the mail program is limited. Setting goals and measuring performance allows organizations to track progress and provides managers with the crucial performance data needed to make management decisions. Finally, VA has not provided its mail managers with appropriate authority and responsibilities to oversee mail operations across the agency. As a result, these officials play a limited role in overseeing the program and coordinating consistent mail management practices across administrations and facilities. By working to address these issues, VA could help assure the effective allocation of resources, thereby possibly allowing the reallocation of some resources to serve veterans in other ways. Id. at 19. The Veteran’s attorney has also submitted an affidavit from D.B.R., executive director for the National Organization of Veterans’ Advocate (NOVA). In her affidavit, D.B.R. stated that, when she began her employment with NOVA in September 2015, she was made aware of their members’ complaints regarding VA’s failure to regularly mail copies of decisional documents. She recounted several meetings and communications between NOVA leaders and VA officials regarding this issue, to include a January 2018 email with information regarding VA’s plans to centralize the printing, mailing, and electronic delivery of outbound communications generated by VBA staff who process claims in VBMS. She also indicated that, since September 2015, she had been in regular communication with numerous representatives accredited to represent claimants before VA, and that these communications had revealed that VA is not regularly mailing copies of decisional documents to claimants’ representatives in accordance with 38 U.S.C. § 5104. Additionally, she reported that some representatives had described their efforts to notify VA in cases where VA fails to mail a claimant’s decisional document to the representative of record. In this regard, she indicated her communications with such representatives had revealed that, on some occasions, VA staff concludes that the representative access to VBMS was sufficient to put the representative on notice of decisional documents affecting their claimants. 06/18/2019, Affidavit. *** The cover letter for the September 2017 SOC indicates that a copy was to be sent to the law firm of the Veteran’s attorney. 09/18/2017, SOC at 2. As detailed above, the Veteran’s attorney asserts that his law firm never received copy of the SOC. Furthermore, he asserts that VA is not entitled to the presumption of regularity. The inquiry here is whether appellant has produced clear evidence sufficient to rebut that VA did its duty or instead should VA be required to prove that it did its duty in this case. The Board finds that the evidence is not sufficient in this matter to rebut the presumption of regularity. The evidence submitted by the Veteran establishes that VA experiences challenges regarding the mailing of decisional documents to some Veteran’s representatives, to include the law firm of the Veteran’s attorney. Nevertheless, in the Board’s estimation, this evidence does not amount to clear evidence to the effect that VA’s “regular” mailing practices are not regular or that they were not followed, as required to rebut the presumption of regularity. Regarding the July 2017 GAO report, the Board finds that, while it identifies inefficiencies in the ways VA manages outgoing mail, it does not really address the issue of regularity or, more specifically, the failure to send decisional documents to Veteran’s representatives. Rather, the report focuses on the efficient allocation of resources across the entire VA system. The Board acknowledges the reports of mailing issues experienced by the law firm of the Veteran’s attorney as well as other Veterans’ representatives. In the Board’s view of the totality of relevant evidence, these reports do not constitute clear evidence to the effect that VA’s “regular” mailing practices are not regular or that they were not followed. As mentioned above, 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. The Board acknowledges that these collected reports of mailing issues, which have been brought to VA’s attention, suggest deficiencies that must be addressed, but finds that they do not rise to the standard needed for rebutting the presumption of regularity. Ultimately, the Board finds no clear evidence to the effect that the regular mailing procedures were not followed in this case. As mentioned, the cover letter for the September 2017 SOC clearly indicates that a copy was to be mailed to the law firm of the Veteran’s attorney. Furthermore, there is no indication that the SOC (as mailed to either to the Veteran or to his attorney) was returned as undelivered. It has not been indicated that the Veteran’s mailing address was incorrect. Under these circumstances and applying the presumption of regularity, the SOC is presumed to have been sent to both the Veteran and his attorney. Finally, as explained above, the Board finds no clear evidence to rebut the presumption of regularity, as argued by the Veteran’s attorney. The Board acknowledges the reports of deficiencies in VA’s mailing of decisional documents to Veteran’s representative but finds that these reported issues do not rise to the level required to rebut the presumption of regularity. To conclude, based on a collection of reports of nonreceipt, that VA is not entitled to the presumption of regularity would practically do away with regulations relating to the timely submission of notices of disagreements and substantive appeals. To summarize, the Board finds that the evidence of record does not meet the evidentiary standard to reach such a grave conclusion for an issue that is best addressed at the agency operational level. *** Notwithstanding the above, the Board finds that the Veteran is not without remedy. As mentioned above, the Veteran’s attorney has asserted that evidence received within 60 days of the September 2017 SOC constituted new and material evidence received within the applicable appeal period, such that 38 C.F.R. § 3.156(b) (2017) applied and finality did not attach to the September 2017 SOC (and therefore a June 2016 rating decision) until the RO considered such evidence. 11/19/2020, Third Party Correspondence. The evidence of record supports such a finding. The September 2017 SOC denied entitlement to a TDIU (as part and parcel of the appeal for a higher rating for tinnitus), among other issues from the June 2016 rating decision. Within 60 days of the SOC, VA provided the Veteran with an October 2017 VA examination in which a VA examiner opined that the his service-connected lumbar spine disability completely precluded all occupational function of any nature, as the Veteran was unable to tolerate weightbearing activities for any extended period of time and has frequent episodes of incapacitation, such that if employment were obtained he would be unlikely to maintain it. Under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. In this case, the October 2017 VA examination was relevant to the issue of entitlement to a TDIU and was received within 60 days of the September 2017 SOC. As such, it was related to the appeal for the issue of entitlement to a TDIU, as addressed in the September 2017 SOC. The record further shows that the new and relevant evidence was not directly addressed by VA until an April 2018 SOC (related to a separate appeal stream), for which the Veteran filed a timely Form 9. Based on these events, the Board concludes that the appeal for entitlement to a TDIU, as addressed in the September 2017 SOC, is still pending. As a TDIU is already in effect for the period since June 1, 2017, the pending appeal is for the issue of the entitlement to a TDIU prior to June 1, 2017. As this issue was addressed in the September 2017 SOC and an appeal has been perfected (05/30/2018, Form 9), it is properly before the Board for adjudication. As explained below, this issue is remanded for additional action by the AOJ. REASONS FOR REMAND Entitlement to a TDIU prior to June 1, 2017, to include on an extraschedular basis. A TDIU is already in already effect for the period since June 1, 2017. The Veteran seeks a TDIU for the period prior to June 1, 2017. Specifically, he seeks a TDIU, effective January 14, 2016. 11/19/2020, Third Party Correspondence. Prior to June 1, 2017, the Veteran does not meet the schedular percentage threshold for a TDIU. See 38 C.F.R. § 4.16(a). There is, however, evidence of unemployability prior to that date. Accordingly, the case must be remanded for referral to the Director, Compensation Service, for a consideration of whether a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: Submit the Veteran’s claim to the Director, Compensation Service, for extraschedular consideration of a TDIU per 38 C.F.R. § 4.16(b) due to his service-connected disabilities prior to June 1, 2017, i.e., a statement as to whether his service-connected disabilities precluded him from securing and following gainful employment prior to June 1, 2017. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López 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.