Citation Nr: 21062183 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-45 248 DATE: October 6, 2021 ORDER A timely substantive appeal to the Board of a November 2014 rating decision was not received; the appeal is denied. FINDING OF FACT 1. In a November 8, 2014, rating decision, the RO continued 30 percent ratings for left total knee arthroplasty and right total knee replacement each and denied entitlement to individual unemployability. 2. VA received a timely Notice of Disagreement (NOD) as to the above stated issues in January 2015; a Statement of the Case (SOC) addressing these issues was issued on August 31, 2015. 3. In March 2016 and June 2017, the Veteran's attorney was provided with copies of the Veteran's claims file. 4. The Veteran's VA Form 9 substantive appeal as to these issues was received at the RO on April 10, 2018, well over 60 days from the mailing of the SOC on August 31, 2015, and over a year from the mailing of the November 8, 2014, rating decision. CONCLUSION OF LAW A timely substantive appeal was not received by VA in response to a November 2014 rating decision; a waiver is not warranted. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302 (b), 20.303, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran and his attorney testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Timeliness of Appeal The Veteran and his attorney assert that neither one of them received a copy of the August 2015 SOC, and that the April 10, 2018, VA Form 9 should be accepted as timely. An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A NOD must be filed within one year from the date that that the RO mailed notice of the rating decision. Otherwise, that determination becomes final. See 38 C.F.R. § 20.302 (a). A timely filed NOD places the issue(s) into appellate status, which requires the issuance of a SOC. See 38 C.F.R. §§ 3.103 (f), 19.26; see also, e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A substantive appeal must be filed within 60 days from the date the 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, whichever period ends later). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. However, the filing of a timely substantive appeal, as opposed to a NOD, is not a jurisdictional bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy, 23 Vet. App. 37, 45. 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 for equitable tolling: (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/her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id. Here, this matter stems from a November 2014 rating decision which continued 30 percent ratings for left total knee arthroplasty and right total knee replacement each and denied entitlement to individual unemployability. The Veteran, through his attorney, disagreed with the November 2014 rating decision in a January 2015 NOD, and a SOC was issued in August 2015. The letter that accompanied the August 2015 SOC advised the Veteran that in order to complete his appeal, he was required to return a VA Form 9 within 60 days of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that he appealed. The Veteran's attorney was copied on this letter. In March 2016 and June 2017, the Veteran's attorney was provided with copies of the Veteran's claims file. In April 2018, the Veteran's attorney filed a VA Form 9 relating to the August 2015 SOC. The RO notified the Veteran that the VA Form 9 was not timely in an April 27, 2018, letter. A review of the record reveals that no document that may be construed as a substantive appeal was received within 60 days from the mailing of the SOC on August 31, 2015, nor was any such document received within the one-year period from the mailing of the November 2014 rating decision. In this case, the substantive appeal should have been received by November 12, 2015, at the latest (calculated based on the date of mailing of the November 2014 rating decision). However, the substantive appeal was not received until April 2018; thus, it was not timely. The Veteran did not file a request for an extension of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. In addition, the Veteran has not asserted that he is entitled to an equitable tolling of his substantive appeal filing deadline, nor has he reported any extraordinary circumstances that would have precluded him from timely filing his VA Form 9. The Board has considered the Veteran's assertion that he and his attorney did not receive a copy of the Veteran's August 2015 Statement of the Case. As noted above, a letter notifying the Veteran that his claim was denied was sent to his address of record in August 2015. A copy of this denial was also sent to the Veteran's counsel. The Board notes that the Veteran's attorney pointed out that he was not listed on the SOC in the Power of Attorney (POA) box, and that only his name, and not his complete address was listed in the CC block. He also argued that the claims file did not contain two copies of the August 2015 SOC, which he claimed was evidence that only one copy was mailed. The presumption of regularity is applicable here, under which it is presumed that government officials have properly discharged their official duties, including in dispersing evidence. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). However, "[t]he presumption of regularity is not absolute; it may be rebutted by the submission of 'clear evidence to the contrary.' "Ashley II, 2 Vet. App. at 309 (citing Rosler v. Derwinski, 1 Vet. App. 241, 242 (1991)); see also YT v. Brown, 9 Vet. App. 195, 199 (1996). Notably, the presumption of regularity dictates that had the letter notifying the Veteran that his claim had been denied failed to reach its destination, there would be some objective evidence in the record such as returned mail. Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). Here, the record does not reflect that the August 2015 SOC was returned as undeliverable. And though the attorney was not listed as the POA on the SOC and only his name, and not his complete address was copied in the CC box, the Board finds that such does not amount to proof that he did not receive a copy of the August 2015 SOC. The Board notes that the RO corresponded with the attorney in July 2015, implicitly acknowledging that he was the Veteran's representative and evidencing that they had his current address of record. In this regard, the Veteran's attorney testified that the record did not reflect that he was the Veteran's representative of record until 2018. This is not so. Indeed, the record reflects that the VA Form 21-22a appointing him as the Veteran's representative was added to the record in early January 2015. However, the Veteran's attorney was revoked as his POA in May 2019, when the Veteran appointed the Texas Veterans Commission (TVC). Subsequently, in January 2021, the Veteran's attorney was reappointed as his POA. During the hearing and in a support brief, the Veteran's attorney proclaimed that it is well known that the VA has had extensive problems issuing mail to Veterans and their attorneys. Relevant to this case, he asserted that neither he, nor the Veteran, was notified of the hearing, and that instead the Veteran's former rep, TVC, informed the Veteran of the hearing. In this regard, the Board notes that the hearing notification letter sent to the Veteran was returned as undeliverable, as his apartment number was omitted from the address. The Board regrets this error. However, the record shows that a hearing notification letter was sent to the Veteran's attorney at the address of record and was not returned as undeliverable. Further, such does not demonstrate that the Veteran or his attorney did not receive the August 2015 SOC, the matter at hand. The United States Court of Appeals for Veterans Claims (Court) has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). To overcome the presumption of regularity and shift the burden to VA to prove that postal employees, as government officials, did not timely deliver the SOC, the Veteran must submit "clear evidence" indicating that the postal employees erred in their handling of his mail. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presumption of regularity allows courts to presume that what appears regular is regular, the burden shifts to the claimant to show the contrary). In this case, based on the record currently before the Board, the Board finds that there is not ample supporting evidence to rebut the presumption of regularity. The Board finds that the Veteran nor his attorney have provided clear evidence indicating untimely delivery of the mailed August 2015 SOC, and therefore, the presumption of regularity is not rebutted in this instance. See also Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). The Veteran's statements and those of his attorney alone are insufficient to rebut the presumption of regularity. Id. They amount to nothing more than anecdotal evidence at best and are more in the realm of argument versus evidence. In any event, it is not clear evidence. Consequently, the Board presumes that the August 2015 SOC was sent to the Veteran and his counsel, and that the November 2014 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Moreover, the Veteran's attorney was provided with a complete copy of the Veteran's claims file in March 2016 and June 2017. Such clearly refutes his argument that he never received a copy of the August 2015 SOC. See Sellers v. Shinseki, 25 Vet. App. 265 (2012) (describing requirements for promulgation and possible curing of defects of decisional notice by actual receipt of notice by claimant and representative). Notable here, the Veteran's attorney also argued that, because he submitted a brief in support of the NOD in January 2017, such demonstrates that he was unaware that a SOC had already been issued. Given that he was supplied with the complete claims file in March 2016, the Board is unpersuaded by such argument. Additionally, the Board finds it curious that, though the Veteran's attorney was provided a complete copy of the claims file as early as March 2016, no VA Form 9 was filed until April 2018, over two years later. The Board also recognizes that the Court has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy, 23 Vet. App. at 45. After a review of all the evidence of record, the Board finds that VA has not waived the requirement to file a substantive appeal, and the Board declines to do so. In Percy, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Id. In this case, unlike in Percy, the RO did not treat the Veteran's substantive appeal (or any document purporting to act as a substantive appeal) as if it were timely. To the contrary, after receiving the Veteran's April 2018 VA Form 9, the RO promptly notified the Veteran that the VA Form 9 could not be accepted as a timely substantive appeal, listing the pertinent procedural dates of record and providing the appeal procedure. Since that time, the RO has not treated the claim as timely appealed, but rather certified the issue of timeliness to the Board. As such, the Board finds that the issue of timeliness of the substantive appeal as to the November 2014 rating decision has not been waived by VA at any time, either explicitly or implicitly, and the Board does not waive the timely substantive appeal requirement at this time. See Percy, 23 Vet. App. at 45 (Board may decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed). In conclusion, the record before the Board reflects that the Veteran's VA Form 9 regarding the November 2014 rating decision was not received within 60 days from the mailing of the SOC on August 31, 2015, nor within the one-year period from the mailing of the November 2014 rating decision. Based on this evidence, the Board finds that the Veteran's VA Form 9 was not timely filed. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.