Citation Nr: 21064638 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-55 197A DATE: October 21, 2021 ORDER From the date of the reduction, restoration of the 20 percent rating for the sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement is granted. The appeal as to the timeliness of the Veteran's substantive appeal (VA Form 9) in response to the March 2018 and April 2018 statements of the case (SOCs), which denied entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran's sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement did not exhibit improvement in the Veteran's ability to function under the ordinary conditions of life and work. 2. In a February 2016 rating decision, the RO denied the Veteran's claim for entitlement to a TDIU and in response, the Veteran submitted a notice of disagreement (NOD) which was received by VA on February 17, 2016. 3. On February 28, 2018 and March 6, 2018, the RO issued SOCs to the Veteran and his representative; however, the March 2018 SOC was inadvertently sent to the wrong mailing address and was returned to VA as undeliverable on April 3, 2018. 4. Due to the notification of the failed delivery, the RO sent a letter enclosing an additional copy of the SOC on April 24, 2018. 5. The Veteran had until June 24, 2018 to submit his substantive appeal (VA Form 9); however, he did not submit a substantive appeal or request for extension of time by June 24, 2018. 6. There is no evidence that the April 24, 2018 SOC was mailed to an incorrect address or returned as undeliverable nor is there any indication that the Veteran's representative at that time did not receive a copy of the March 2018 SOC. 7. In December 2018 correspondence, the RO notified the Veteran that a copy of the March 2018 SOC was being provided to him in response to a Freedom of Information Act (FOIA) request. 8. On December 20, 2018, the submitted an untimely substantive appeal (VA Form 9) for his claim of entitlement to a TDIU. 9. On January 23, 2019, the RO promptly notified the Veteran of its determination that his December 2018 substantive appeal (VA Form 9) was not timely, and the doctrine of equitable tolling is not applicable. CONCLUSIONS OF LAW 1. The criteria for restoration of the 20 percent rating for the sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8720. 2. The December 2018 substantive appeal (VA Form 9) submitted in response to the March and April 2018 SOCs, which denied entitlement to a TDIU, was not timely. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.32, 19.33, 19.34, 19.50, 19.51, 19.52, 19.53. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2016 and June 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2020 Board decision, the Veteran's claims for entitlement to a total disability rating due to individual unemployability was dismissed and entitlement to restoration of a 20 percent disability rating for the Veteran's service-connected sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement was denied. Thereafter, the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court) to the extent it determined that the reduction in disability rating for the service-connected sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement from 20 percent to 10 percent as of September 1, 2018 was proper. By an April 2021 Order, the Court vacated the July 2020 Board decision and remanded the claim back to the Board for compliance with instructions pursuant to an April 2020 Joint Motion for Partial Remand (JMPR). In addition, the July 2020 Board decision remanded the claim for whether the Veteran's substantive appeal (VA Form 9), submitted in December 2018, was timely filed as to the issue of entitlement to a TDIU for the issuance of a SOC. The SOC was issued on October 16, 2020. In response, the Veteran filed a timely substantive appeal in December 2020. As such, the Board will proceed with adjudication of the appeal as to the timeliness of the December 2018 substantive appeal. 1. From the date of the reduction, restoration of the 20 percent rating for the sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement is granted. The parties to the JMPR agreed that the Board failed to provide an adequate statement of reasons and bases when it determined that the March 2018 VA examination was "full and complete," concluded that the record clearly showed material improvement of the Veteran's sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement, and further concluded that because there was no competent medical evidence or reports from the Veteran indicating otherwise, the Board was reasonably certain that the material improvement found will be maintained under the ordinary condition of life. The parties explained that the Board erred by placing the burden on the Veteran to prove that there was not material improvement of his condition that will be maintained under the ordinary condition of life. In addition, the parties noted that when reducing a disability rating that has been in effect for 5 years or more, like the disability at issue in the instant case, the burden falls on VA to show "material improvement" in the Veteran's condition from the time of the previous rating examination that assigned the Veteran's rating. Ternus v. Brown, 6 Vet. App. 370, 376 (1994). The 20 percent rating for the Veteran's sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement was assigned in an October 2007 rating decision and was made effective September 26, 2006, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8720, which provides the rating criteria for neuralgia involving the sciatic nerve. In assigning the 20 percent evaluation, the RO cited incomplete paralysis that is moderate in sensory deficit. A February 2016 rating decision also continued the 20 percent disability rating assigned based on incomplete paralysis below the knee which is moderate. The 20 percent rating assigned for sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement was reduced to 10 percent effective September 1, 2018, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8720, in the June 2018 rating decision that is the subject of this appeal. In assigning the 10 percent evaluation, the RO cited incomplete paralysis that is mild in severity. When reduction in the evaluation of a service-connected disability is contemplated, and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, a final rating action will be taken, and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions must be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the present case, a March 2018 rating decision proposed the reduction of the schedular rating for the Veteran's sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement from 20 percent to 0 percent disabling. The Veteran was notified of the proposed action in a March 29, 2018 letter and was given the required 60 days to present additional evidence before the RO subsequently implemented the rating reduction. The RO then notified the Veteran of the action taken which reduced his sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement from 20 percent to 10 percent, effective from September 1, 2018, as well as his appellate rights in a June 21, 2018 letter. Therefore, VA met the due process requirements under 38 C.F.R. § 3.105(e) and (i). In addition to the procedural actions regarding reductions, 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). If doubt remains, after according due consideration to all the evidence developed, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). 38 C.F.R. § 3.344(c). At the time the reduction became effective on September 1, 2018, the 20 percent rating for the service-connected sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement had been continuously in effect for more than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable in this case. In any rating reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow all reduction cases, "regardless of the rating level or the length of time that the rating has been in effect"). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may also experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Peripheral nerve conditions are rated pursuant to the Diseases of the Peripheral Nerves Rating Schedule and peripheral nerve conditions involving the lower extremities are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Codes 8520 through 8730. There are five nerve branches in the lower extremities. Each branch has its separate and distinct functions. The sciatic branch includes the sciatic nerve, external popliteal nerve (common peroneal), musculocutaneous (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. These nerves affect the foot and leg sensory and motor function of the buttock, leg, knee, muscles below knee, lower leg, fibula, foot, muscles of the sole of the feet, plantar flexion, and toes. The femoral branch includes the anterior crural (femoral) and the internal saphenous nerves and affect the thigh and leg sensory and motor function of the quadriceps muscle, front of thigh; medial calf; and medial malleolus. The obturator, external cutaneous thigh, and ilio-inguinal nerve branches only include one nerve each. At the outset, the Board notes that the Veteran is also in receipt of service connection for radiculopathy of the right lower extremity with femoral nerve involvement pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8526 which evaluates paralysis of the anterior crural nerve (femoral). As such, the Board will not consider evidence pertaining to the femoral branch. As mentioned, the Veteran's condition is currently rated under the criteria pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8720. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720, respectively. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling, moderate incomplete paralysis is rated as 20 percent disabling, moderately severe incomplete paralysis is rated as 40 percent disabling and severe incomplete paralysis with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, where the foot dangles and drops, no active movement possibly of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8521, a 10 percent rating is assigned for mild incomplete paralysis of the external popliteal nerve; a 20 percent rating is assigned for moderate incomplete paralysis; and a 30 percent rating is assigned for severe incomplete paralysis. A 40 percent rating is warranted when there is complete paralysis of the external popliteal nerve demonstrated by foot drop and slight droop of first phalanges of all toes; inability to dorsiflex the foot; loss of extension (dorsal flexion) of proximal phalanges of toes; loss of abduction of foot; weakened adduction; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under Diagnostic Code 8522, which pertains to the musculocutaneous (superficial peroneal) nerve, mild incomplete paralysis warrants a noncompensable rating. Moderate incomplete paralysis warrants a 10 percent rating. Severe incomplete paralysis warrants a 20 percent rating. A maximum 30 percent rating is warranted for complete paralysis, eversion of foot weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8522. Under Diagnostic Code 8523, a 10 percent disability rating is warranted for moderate incomplete paralysis of the deep peroneal nerve. A 20 percent disability rating is warranted for severe incomplete paralysis of the deep peroneal nerve. A maximum 30 percent disability rating is warranted for complete paralysis of the deep peroneal nerve evidenced by loss of dorsal foot flexion. 38 C.F.R. § 4.124a, Diagnostic Code 8523. Under Diagnostic Code 8524, a 10 percent rating is warranted for mild incomplete paralysis of the internal popliteal (tibial) nerve; a 20 percent rating is warranted for moderate incomplete paralysis; a 30 percent rating is warranted for severe incomplete paralysis; and a 40 percent rating is warranted for complete paralysis resulting in loss of plantar flexion, frank adduction of the foot impossible, flexion and separation of toes abolished, no muscle in sole can move, and loss of plantar flexion in lesions of the nerve high in popliteal fossa. 38 C.F.R. § 4.124a, Diagnostic Code 8524. Under Diagnostic Code 8525, a 10 percent rating is warranted for mild or moderate incomplete paralysis of the posterior tibial nerve. A 20 percent evaluation requires severe incomplete paralysis of this nerve. A 30 percent rating is warranted for complete paralysis of the posterior tibial nerve demonstrated by paralysis of all muscles of sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; and impaired plantar flexion. 38 C.F.R. § 4.124a, Diagnostic Code 8525. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated with a maximum equal to severe, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The Veteran underwent VA peripheral nerve examination in December 2015. At that time, he reported severe constant pain and numbness of the right lower extremity. He further reported that his condition had worsened and that he lived with restricted movements and extreme pain. Muscle strength testing was normal for the right lower extremity. Reflex examination at that time was also normal for the right lower extremity; however, sensory examination revealed decreased sensation to light touch in the right thigh/knee (L3/4), right lower leg/ankle (L4/L5/S1), and the right foot/toes (L5). The examiner indicated that the right sciatic nerve was affected, which resulted in incomplete paralysis of mild severity. The examiner diagnosed sensory dysfunction of the bilateral lower extremities. The examiner stated that the for the Veteran's VA established diagnosis of sensory dysfunction involving the right lateral foot, posterior thigh and lateral leg, the diagnosis had changed, and was a progression of the previous diagnosis. VA treatment records dated August 2016 show the Veteran complained of burning pain that starts at his back and radiates to his feet. The assessment included diagnoses of lumbar radiculopathy, peroneal tendonitis, and pain in the limb. A November 2016 VA treatment record shows physical examination of the Veteran's neurological system revealed motor function of 4/5 for right proximal and 4/5 for right distal with mild weakness of dorsiflexion and plantar flexion on the right. Private treatment records dated January 2017 through August 2017 show the Veteran continuously complained of constant pain that radiated from his lower back down to his bilateral hips, legs, and feet. Pain was generally described as sharp, throbbing, aching and dull with spasms and tenderness. During each of his encounters, he indicated pain levels of primarily of 8/10 on the pain scale but at times reported pain at a 9/10 on the pain scale. Upon VA peripheral nerve examination on March 9, 2018, the Veteran reported numbness and tingling of his foot. He also reported right lower extremity paresthesias and/or dysesthesias as well as numbness of mild severity. Muscle strength testing was normal for the right lower extremity. Reflex and sensory examination at that time were also normal for the right lower extremity. The examiner reported that the Veteran's sciatic nerve was affected only on the left side but was normal for the right side. In fact, the examiner determined that all other nerves affecting the lower extremities were normal bilaterally. The examiner referenced a March 2018 VA electromyography (EMG) study which revealed a normal right lower extremity. The examiner diagnosed sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement. The examiner remarked that the Veteran had a quick, short stride and balanced gait, without use of a cane or crutch. She stated that the bilateral dorsalis pedis and posterior tibialis pulse were normal and there was no lower extremity swelling. In addition, she reported that monofilament did not reveal sensory loss of ankles or feet. The examiner reported that nerve conduction and EMG study completed revealed normal peroneal and tibial nerve function bilaterally and stated that this diagnosis had not been confirmed by testing. VA treatment records dated March 14, 2018 show the Veteran reported constant, dull pain in his lumbar spine, 9/10 on the pain scale which radiated into his bilateral posterior lower extremities down to his feet. In December 2019, the Veteran complained of low back pain that ranges from a 6/10 to 9/10 on the pain scale which radiates down to his bilateral lower extremities with paresthesias. Upon VA peripheral nerve examination in March 2020, the Veteran reported pain that radiates to his bilateral lower extremities associated with numbness and tingling/burning sensation. He also reported constant pain, paresthesias/dysesthesias, and numbness in the right lower extremity of moderate severity. Muscle strength testing was normal as well as reflex examination. However, sensory examination revealed decreased sensation to light touch for the right thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). The examiner reported the Veteran with antalgic gait of unknown etiology. The examiner indicated that the right sciatic nerve was affected, which resulted in incomplete paralysis of moderate severity. The examiner diagnosed radiculopathy of the right lower extremity with femoral nerve involvement and sensory dysfunction involving the left lateral foot, posterior thigh, and lateral leg. After careful review of the record, the Board finds that restoration of the 20 percent rating is warranted. As mentioned, the 20 percent rating was based on sciatic nerve involvement resulting in incomplete paralysis that was of moderate severity. During the December 2015 VA examination, the examiner determined that the Veteran's right sciatic nerve was affected but only resulted in mild incomplete paralysis. The March 2018 VA examiner determined that the sciatic nerve of the right side was normal. Indeed, the 2018 VA examiner determined that the only nerve affected was the sciatic nerve on the left side while all other lower extremity nerves were normal. However, the 2018 VA examiner provided a diagnosis of sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement. Although the December 2015 VA examination revealed only mild incomplete paralysis consistent with a 10 percent rating and the 2018 VA examination revealed normal right side sciatic nerve consistent with a 0 percent rating, a review of the Veteran's VA and private treatment records throughout the appeal period shows the Veteran complaining of pain from his lower back radiating down to his right lower extremity at 8/10 on the pain scale. In addition, the 2020 VA examination shows the Veteran with incomplete paralysis of the right sciatic nerve of moderate severity. In addition, per the March 2020 VA peripheral nerve examination, the Veteran was noted to have sciatic nerve involvement of the right side which resulted in incomplete paralysis of moderate severity. Although the Board acknowledges that the 2020 VA examination is outside of the period on appeal as it was not available to the RO at the time the reduction was effectuated, the Board finds that the post-reduction medical evidence shows that the Veteran's condition had not actually improved. Dofflemyer, 2 Vet. App. at 281-282 (1992). Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record indicates that his sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement did not improve such that a reduction to 10 percent was warranted. Accordingly, restoration of the 20 percent rating from the date of the reduction is warranted. 2. The appeal as to the timeliness of the Veteran's substantive appeal (VA Form 9) in response to the March 2018 and April 2018 statements of the case (SOCs), which denied entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, is denied. The Veteran contends that he timely appealed his claim for entitlement to a TDIU which was denied in a February 2016 rating decision. Specifically, he claims that he never received notification of the initial March and April 2018 SOCs which is why he was unable to file a timely response and had he received the SOC, he would have submitted a substantive appeal (VA Form 9) immediately, as opposed to several months later when he contacted the VA and discovered that a decision had been rendered. Therefore, he claims his December 2018 VA Form 9, despite being received after the expiration of appeal period, should be accepted as a valid appeal of the April 2018 SOC. VA regulations provide that a legacy appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.20. A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the statement of the case (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. §§ 19.20, 19.51, 19.52. 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 notice of disagreement, 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). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.104. The AOJ may close a case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), and a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 19.34, 19.52. In determining its jurisdiction, the Board must also be cognizant that the VA adjudicative system is non-adversarial and pro-claimant in nature wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, however, at the time that the pertinent SOC was mailed in March and April 2018, the Veteran was represented by a Veterans Service Organization (VSO) and was not in a pro se or self-represented capacity. By way of history, the Veteran filed a claim for entitlement to a TDIU in October 2015, and the RO denied the Veteran's claim in the February 2016 rating decision. In response to the February 2016 rating decision, the Veteran filed a timely NOD. In the January 2018 Board decision, the Veteran's claim of entitlement to a TDIU was remanded for the issuance of a SOC. In February 2018 and March 2018, the RO issued SOCs to the Veteran and his representative; however, the record shows that the March 2018 SOC was inadvertently sent to the wrong address and was returned in the mail. Due to the notification of the failed delivery, the RO sent a letter enclosing another copy of the SOC on April 24,2018. Then, in December 2018 correspondence, the RO notified the Veteran that a copy of the March 2018 SOC was being provided to him in response to a FOIA request. In December 2018,the Veteran submitted a VA Form 9 for his TDIU claim, stating that he did not receive a decision letter dated March 2018 denying his claim, and requested that it be reopened. However, in response, in January 2019 the RO advised the Veteran that his VA Form 9 could not be accepted as a timely substantive appeal because the time limit to continue his appeal had passed. The letter explained that in order to continue his appeal he would have had to submit his substantive appeal no later than one year following notification of adverse decision, or within 60 days from the date of the SOC. The letter further indicates that his SOC was issued on March 6, 2018 and that he had until May 6, 2018 to submit his substantive appeal. While the letter notified the Veteran that he had until May 6, 2018 to submit his substantive appeal, the record shows that the Veteran did not receive the SOC until April 24, 2018. Thus, he had until June 24, 2018 to file his substantive appeal. That notwithstanding, the Veteran submitted a VA Form 9 on December 20, 2018. In a February 2019 NOD, the Veteran indicated that he did not receive the VA Form 9 and did not receive notification of the SOC on March 6, 2018, and that he was, therefore, unable to submit it in a timely manner and was unaware of the deadline. However, there is no indication that the Veteran's representative at that time (Disabled American Veterans) did not receive a copy of the March 2018 SOC. The presumption of regularity provides that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to the officials at the RO who were responsible for notifying the Veteran and his representative of the March and April 2018 SOCs in connection with his claim for entitlement to a TDIU. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). The Veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA's regular mailing practices were not followed in his case. The Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). However, an "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet. App. 98, 102 (1998). If a claimant alleges non-receipt of a VA notice letter, clear evidence to rebut the presumption of regularity "mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). Neither the Veteran nor his representative contend that the substantive appeal was filed within 60 days of the RO's issuance of the April 24, 2018 SOC, nor do they assert that a timely request for an extension of time was filed. The Board also notes that the RO notified the Veteran of its determination that the substantive appeal was untimely on January 23, 2019. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Here, the Veteran's claim that he did not receive the April 2018 SOC by itself does not establish the "clear evidence" needed to rebut the presumption of regularity of mailing that applies to the April 2018 SOC. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). While the Veteran claims that he was unaware of the deadline to submit his substantive appeal because he did not receive any of the 2018 SOCs, there is no indication that the Veteran's representative did not receive the March 2018 SOC. In addition, the April 2018 SOC is presumed to have been delivered to the Veteran as there is no evidence that the April 24, 2018 SOC was mailed to an incorrect address or returned as undeliverable. In short, there is no credible evidence to suggest that VA failed to follow proper mailing practices with respect to its attempts to notify the Veteran of the April 2018 SOC. Thus, there is insufficient evidence to rebut the presumption of regularity. The Board has also considered whether the facts surrounding the Veteran's substantive appeal constitute "extraordinary circumstances" and possibly warrant equitable tolling. The Court has recognized that the doctrine of equitable tolling is potentially applicable to untimely or improperly filed appeals. See Hunt v. Nicholson, 20 Vet. App. 519, 524-25 (2006). Generally, equitable tolling applies only where circumstances preclude a timely filing despite the exercise of due diligence, such as: (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the RO or the Board. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011). However, the Court has further held that failure by a claimant's representative to timely file an appeal on the claimant's behalf does not rise to the level of "extraordinary" as contemplated by the doctrine of equitable tolling. See McCreary v. Nicholson, 19 Vet. App. 324 (2005). Upon review of the record, the Board finds that the evidence does not demonstrate "extraordinary circumstances" in the present appeal. As stated above, the April 2018 SOC is presumed to have been delivered to the Veteran as there is no evidence that the April 24, 2018 SOC was mailed to an incorrect address or returned as undeliverable. Neither the Veteran nor his representative filed a substantive appeal or requested an extension prior to the expiration of time for filing an appeal (on June 24, 2018). To the extent that error lies in the representative's failure to provide a copy of the SOC or advise the Veteran that his time for filing an appeal was soon approaching, unfortunately, detrimental reliance on a representative does not provide a basis of equitable tolling of a deadline. The Board is cognizant that the U.S. Court of Appeals for the Federal Circuit has applied equitable tolling when a veteran's reliance on a VA employee, the veteran's adversary, resulted in an untimely filed NOA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Here, however, the Veteran relied on his VSO representative who is not an employee of VA or otherwise his adversary. Any untimely filing that can be attributed to action or inaction on the part of the representative would amount to no more than "a garden variety claim of excusable neglect." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). As such, these circumstances do not rise of the level of "extraordinary" as contemplated by the doctrine of equitable tolling. While the Board is sympathetic to the Veteran's situation, the Court's holding in McCreary prevents the Board from finding in his favor under the circumstances of this case. In sum, the Board finds that the Veteran's assertion that he did not receive notice of the April 24, 2018 SOC is not sufficient to rebut the presumption of regularity as to the mailing of the that decision by the RO and Post Office. There is no evidence that the April 24, 2018 SOC was mailed to an incorrect address or returned as undeliverable nor is there any indication that the Veteran's representative at that time did not receive a copy of the March 2018 SOC. No written document that could constitute a valid substantive appeal (VA Form 9) was received within 60 days from the April 24, 2018 date that the SOC was re-mailed to the Veteran. Based on this evidence, the Board finds that the Veteran's December 2018 substantive appeal (VA Form 9) was not timely filed. The Board is grateful for the Veteran's honorable service, and the decision herein is in no way meant to detract from that service. However, given the record before it, the law is dispositive regarding the timeliness of the Veteran's appeal. Therefore, the appeal as to the timeliness of the Veteran's substantive appeal (VA Form 9) in response to the March 2018 and April 2018 SOCs, which denied entitlement to a TDIU, is denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.