Citation Nr: 21065133 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-41 393 DATE: October 25, 2021 ORDER The appeal as to whether the May 6, 2014 substantive appeal (VA Form 9) was timely filed is denied. FINDING OF FACT The Veteran did not file a VA Form 9 within 60 days of the date on which the February 25, 2014 statement of the case was sent to the Veteran. CONCLUSION OF LAW The VA Form 9 received on May 6, 2014 was not timely filed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.32, 19.52(b), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1969 to September 1982. The Veteran appeared at a virtual hearing before a Veterans Law Judge in November 2020; however, there were technical problems during the hearing, and the Veteran was rescheduled for a new hearing. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. Because the November 2020 hearing before the Board could not take place due to technical problems, the Veteran's appeal will be considered solely by the undersigned, who held the complete February 2021 Board hearing. Review of the claims file reflects that, in October 2018, the Agency of Original Jurisdiction (AOJ) issued a rating decision under the Legacy Appeals System, in part, continuing a previous denial of a claim for entitlement to service connection for Parkinson's disease. Notice of that decision was sent to the Veteran that same month. In December 2018, the Veteran requested reconsideration of the October 2018 rating decision, and in March 2019, the AOJ issued a rating decision under the Appeals Modernization Act (AMA) review system, denying entitlement to service connection for Parkinson's disease. In October 2019, the Veteran filed a notice of disagreement under the Legacy Appeals System disagreeing with the October 2018 rating decision. In November 2019, the AOJ notified the Veteran that the October 2019 notice of disagreement was not timely to appeal the October 2018 rating decision. The Veteran did not appeal the AOJ's November 2019 findings. Rather, the Veteran filed a November 2019 VA Form 10182 to the March 2019 rating decision which reconsidered and denied the claim for entitlement to service connection for Parkinson's disease. In December 2019, the Board notified the Veteran that it had accepted his VA Form 10182, and placed his appeal on the Evidence Submission docket. Accordingly, the Veteran's appeal for entitlement to service connection for Parkinson's disease is appropriately considered under the AMA and will be the subject of a separate Board decision. Whether the May 6, 2014 substantive appeal (VA Form 9) was timely filed The Veteran appeals the Regional Office's (RO's) finding that a May 2014 VA Form 9 was not timely received. A substantive appeal must be filed within 60 days of the date of the mailing of a statement of the case, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105; 38 C.F.R. § 20.302 (2018). An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303 (2018). However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. When a claimant fails to file a timely appeal and does not request an extension of time, in writing, before the expiration of time for the filing of the substantive appeal, he or she is statutorily barred from appealing the decision of the agency of original jurisdiction. Roy v. Brown, 5 Vet. App. 554, 556 (1993). However, the U.S. Court of Appeals for Veterans Claims (Court) has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and that VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In this case, an August 2012 rating decision denied entitlement to service connection for Parkinson's disease and denied an increased rating greater than 30 percent for paroxysmal tachycardia. Notice of that rating decision was sent to the Veteran on August 6, 2012. On September 7, 2012, the Veteran filed a timely Notice of Disagreement. A Statement of the Case (SOC) was issued on February 25, 2014. The Veteran filed a Substantive Appeal (VA Form 9) on May 6, 2014. On May 20, 2014, the Agency of Original Jurisdiction (AOJ) notified the Veteran that his May 2014 VA Form 9 was untimely. The Veteran has asserted several reasons for the untimely filing of his VA Form 9. Each will be addressed, in turn, below. First, he alleges that he does not recall receiving the February 2014 SOC. According to VA regulation, notification for VA purposes is written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q). There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926), Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992). The presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 311 (1999). A statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in the Regional Office (RO) operations. See Jones v. West, 12 Vet. App. 98, 100 (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). Review of the evidence of record does not provide any indication that the Veteran or his representative at the time did not receive the February 2014 SOC. The SOC was mailed to the Veteran's correct mailing address on file at that time, and the Veteran's representative was also sent a copy of the SOC. There is no evidence of returned or undeliverable mail pertaining to the February 2014 SOC. Further, the record shows that VA had mailed other correspondence to the Veteran to the same mailing address listed on the February 2014 SOC to which the Veteran responded, including the August 2012 rating decision to which the Veteran filed a timely NOD. The Veteran has not provided any clear evidence to support his argument that the February 2014 SOC was not received. As stated previously, the presumption of regularity must be rebutted by clear evidence, which requires more than just a statement alleging non-receipt of a decision. Evidence or fact of non-receipt may arguably raise an inference that a notice letter was not mailed, but it is not the type of "clear evidence" required to rebut the presumption of regularity. See Montalvo v. Brown, 7 Vet. App. 312, 314. Here, there is no evidence to support non-receipt of the February 2014 SOC other than the allegations made by the Veteran. The Board has considered the decision by the U.S. Court of Appeals for Veterans Claims (Court) in Romero v. Tran, 33 Vet. App. 252 (2021) regarding VA's presumption of regularity in administrative actions, which was cited by the Veteran. However, in the present case, unlike in Romero, the Veteran has not submitted, and the Board does not find, general evidence indicating problems in receiving or processing documents by the RO or sufficient clear evidence to rebut the presumption of administrative regularity. The Veteran has merely submitted his own assertions, which are not sufficient to establish that the SOC was not provided to him in February 2014. Consequently, the Board finds that there is not clear evidence sufficient to rebut the presumption of administrative regularity in the mailing process. Jones v. West, 12 Vet. App. 98, 102 (1998). Second, the Veteran contends that the February 2014 SOC was "ambiguous and confusing" as to the time limit in which he was required to respond, that his representative did not instruct him to return his substantive appeal within 60 days, and that he required more time than permitted to collect his evidence. Specifically, he alleges that, under the heading "Your Rights to Appeal Our Decision" he was instructed that he had one year to appeal, and that the decision also notes the 60-day time limit, but in much smaller text. Review of the February 2014 SOC does not reveal any paragraph or section entitled "Your Rights to Appeal Our Decision." The Board observes that VA Form 4107, "Your Rights to Appeal Our Decision" is a form that was enclosed with the August 2012 notice letter accompanying the August 2012 rating decision, which correctly notified the Veteran that he had one year to file a notice of disagreement to the August 2012 rating decision. VA Form 4107 was not enclosed with the February 2014 SOC, and the February 2014 SOC instructed only that the Veteran "must file [his] appeal with this office within 60 days from the date of this letter or within the remainder, if any of the one-year appeal period from the date of the letter notifying [him] of the action that [he has] appealed." The SOC also advised the Veteran that, if he needed more time to file his appeal, he "should request more time before the time limit for filing your appeal expires." Review of the February 2014 SOC reveals that its instructions were not "ambiguous" or "confusing" as they clearly instruct the Veteran that he had 60 days from the date of the letter to file his VA Form 9 or request an extension. Further, if the Veteran required additional time to collect his evidence, he was notified that he must request an extension of time "before the time limit for filing [his] appeal expires." Third, he argues that he has shown "good cause" for an extension of time to file his substantive appeal. Under 38 C.F.R. § 20.303 (2018), an extension of time for filing a substantive appeal may be granted for good cause, but the request for extension "must be in writing and must be made prior to expiration of the time limit for filing the Substantive Appeal . . .." As the Veteran did not file a request for extension of time to file his substantive appeal prior to April 26, 2014, which is 60 days from the date of the February 2014 SOC, his request for an extension of time based upon "good cause" is without merit. The Board has also considered the doctrine of equitable tolling. The Court has held that the deadline for filing the substantive appeal is subject to equitable tolling. Hunt v. Nicholson, 20 Vet. App. 519, 524 (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) (per curiam order), overruled on other grounds Dixon v. McDonald, 815 F.3d 799 (Fed. Cir. 2016). Regarding this current matter, the evidence does not show that any extraordinary circumstances are present that will prevent the Veteran from filing a timely substantive appeal. The Veteran is not shown to be mentally incapacitated, resulting in the inability to handle his own affairs. While the Veteran noted that his representative was "real lax" in relaying the importance of the 60-day deadline, the Veteran's representative was not a VA official. There is no evidence that the Veteran or his representative relied upon any incorrect statement from a VA official regarding his appeal, nor is there evidence of misfiling by VA. The Board is sympathetic to the Veteran's claim. However, based upon the evidence, law, and regulations, the Veteran's substantive appeal was not filed within 60 days of the date of the mailing of the SOC and was not filed within one year of the notice of the decision being appealed. Additionally, there are no exceptions or extraordinary circumstances present to render the May 2014 VA Form 9 timely. For these reasons, the Board finds that the May 2014 VA Form 9 was not timely filed, and the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.