Citation Nr: 21062417 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-35 947 DATE: October 7, 2021 ORDER A VA Form 9 (substantive appeal) having been timely filed as to a November 9, 2015 Statement of the Case (SOC), reinstatement of the underlying appeal is granted. FINDING OF FACT The evidence of record is sufficient to rebut the presumption of regularity in the mailing of the November 9, 2015 SOC and the March 4, 2016 substantive appeal is considered to be timely filed. CONCLUSION OF LAW The criteria for a timely filed VA Form 9 (substantive appeal) as to the November 9, 2015 SOC have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1972 to February 1980, and then again from March 11 to March 26, 1995. This matter is on appeal from a March 31, 2016 administrative decision finding that a March 4, 2016 correspondence requesting to perfect an appeal was not timely filed in response to a November 9, 2015 SOC. By way of procedural background, the Veteran first filed a claim for service connection that was denied in a December 10, 2013 rating decision. The Veteran returned a timely Notice of Disagreement to the first rating decision on December 15, 2014. While a SOC appears to have been produced for mailing on November 9, 2015, the Veteran states that this was not received. A March 4, 2016 correspondence confirms that the Veteran inquired by telephone as to the status of the November 9, 2015 SOC that he never received, and he was told that his appeal was not preserved. Accordingly, the Veteran requested that a new SOC be mailed to him. An administrative decision dated March 31, 2016 stated that the underlying December 2013 rating decision was final due to the failure to perfect appeal within 60 days of the November 9, 2015 SOC. Thereafter, the Veteran filed a NOD to the March 31, 2016 administrative decision, and this was received on June 26, 2016. A SOC governing the timeliness of the underlying appeal was issued on June 8, 2017, and the Veteran perfected this appeal upon receipt of a VA Form 9 dated July 10, 2017. The Veteran testified before the undersigned Veterans Law Judge on July 7, 2021, with his attorney present. Testimony was taken about the chronology of the underlying appeal and the Veteran and his attorney's contention that it should be properly preserved and adjudicated as continuously prosecuted since the December 10, 2013 rating decision. A transcript of the July 7, 2021 hearing was produced and associated with the claims file for Board review. For the reasons to be more fully recounted below, the Board grants the Veteran's claim to accept his correspondence from March 2016 as timely as to the November 9, 2015 SOC. A VA Form 9 (substantive appeal) having been timely filed as to a November 9, 2015 SOC, reinstatement of the underlying appeal is granted. 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 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). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The time to appeal a VA decision does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his appellate rights. See Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Moreover, 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 about a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A "presumption of regularity 'supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926)).; Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also 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). By way of procedural background, the Veteran first filed a claim for service connection that was denied in a December 10, 2013 rating decision. See Rating Decision ( Dec. 10, 2013 ). The Veteran returned a Notice of Disagreement to the first rating decision on December 15, 2014. See NOD ( Dec. 15, 2014 ). While a SOC appears to have been produced for mailing on November 9, 2015, the Veteran states that this was not received. Meanwhile, to the extent that a SOC appears to have been produced, the Board concludes that any errors in timeliness as to the NOD having been received more than one year after the rating decision have been waived. The Veteran testified that he contacted the VA by telephone in about October 2015 (shortly before the SOC would have been sent), and the clerk stated that no decision would likely be made until the new year. See Hearing Tr. (July 7, 2021), at Page 3 ("Well, in October of 2015 I had called the VA...but anyway he told me that they probably would not make a decision on my case until after the first of the year. So I accepted him at his word. [...] I waited until the mid-February before I called them again...she'd told me that the case had been closed that the decision was made in late November early December and that the time line of to appeal it was pastand I told her but I haven't received anything notifying me of, you know, of anything going on."). The Board has reviewed the Veteran's claims file, and confirms that a March 4, 2016 correspondence sent to the Newnan, Georgia Regional Office memorializes the Veteran's inquiry by telephone (as consistent with sworn testimony) as to the status of the November 9, 2015 SOC that he never received, at which time he was told that his appeal was not preserved and that the Veteran should make contact with the Atlanta office. See id. Accordingly, the Veteran requested that a copy of the SOC be mailed to him. See Correspondence (rec'd Mar. 4, 2016 ). The Board notes that the Veteran has resided at the same address throughout the period on appeal and he had been responsive and timely in prosecuting his claim at all times except for about the time of the SOC that he claims he did not receive. The Veteran's testimony is highly credible, in that he testified to a letter by an accurate portrayal of its contents and by accurate date sent, contemporaneous to the issue of timeliness on appeal. This suggests that the Veteran (who has, as indicated above, been proactive in pursuing his claims) and his attorney (who was retained once the Veteran learned the December 2013 rating decision may have been rendered final without responding to the SOC never received by him, and who has also been proactive in pursuing the Veteran's claims), would have likely already filed a substantive VA Form 9 if they had received the November 9, 2015 SOC. Moreover, it is unlikely that the Veteran would have made an inquiry as to the status of the November 9, 2016 SOC if it had already been received. Taken together, this information is sufficient to rebut the presumption of mailing. See Chute v. Derwinski, 1 Vet. App. 352, 353 (1991) (evidence may be sufficient to rebut the presumption of regularity where the appellant wrote to his representative indicating that he did not receive the mailing, such as by asking for information about the status of his appeal). Because the presumption of mailing has been rebutted, the burden of proof is on VA to show that the SOC was actually placed into the United States Postal Service system. See Rios v. Mansfield, 21 Vet. App. 481, 482-83 (2007). To this extent, there is no evidence, such as an independent proof of a postmark, a dated receipt, or like evidence, establishing the mailing back in November 2015. The address of the attorney is not listed as the attorney was retained to assist the Veteran in ensuring that the November 9, 2015 SOC was timely responded to, and that the December 2013 rating decision should not be deemed final. The Veteran's attorney attached a transcript of testimony before the United States House of Representatives as to the management and oversight of mail operations at the VA, and how it could be improved. See U.S. Government Accountability Office Testimony (Sept. 12, 2017) (rec'd Aug. 25, 2021). In light of this evidence, the Board once more recounts the facts as stated above: the Veteran filed a timely and valid NOD in December 2014, inquired by telephone about a SOC in October 2015, then inquired by telephone again about the same SOC in February 2016, at which time the Veteran was informed that that SOC was mailed in November 2015, so he promptly wrote to the Newnan, Georgia RO that no SOC was received, and has continuously prosecuted this claim for a timely appeal of the November 9, 2015 SOC allegedly never received. (Continued on the next page) On the basis of these unique facts, the Board finds the substantive appeal filed on March 4, 2016 should be treated as timely filed as to the November 9, 2015 SOC. As such, the appeal of the timeliness issue is granted. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.