Citation Nr: 21065389 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-27 651 DATE: October 26, 2021 ORDER 1. A timely substantive appeal was filed in response to a December 2017 statement of the case (SOC) denying the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and to that extent, the claim is granted. REMANDED 2. Entitlement to service connection for a psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. The Veteran filed a substantive appeal with regard to the claim for service connection for posttraumatic stress disorder (PTSD) and a mental condition in April 2018, which was greater than 60 days from the December 2017 date that the Regional Office (RO) mailed the Veteran and the representative the statement of the case (SOC) and not within the remainder of the one-year period from the mailing of notice of the March 2014 rating decision. 2. The time period for filing a substantive appeal following the December 2017 SOC denying the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD, should be equitably tolled because the presumption of regularity has been rebutted with respect to the timeliness of the Veteran's April 2018 substantive appeal based upon receipt of clear evidence that VA failed to properly discharge its duty, and the evidence does not establish actual mailing or receipt of the December 2017 SOC. CONCLUSION OF LAW Under the circumstances of this case and the doctrine of equitable tolling, the Veteran's April 2018 VA Form 9, Appeal to the Board, filed in response to a December 2017 SOC denying the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is deemed timely. 38 U.S.C. §§ 5103, 5103A, 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302; Romero v. Tran, 33 Vet. App. 252 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1974 to August 1977. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2018 decision letter by the Department of Veterans Affairs (VA) Regional Office (RO), informing the Veteran that his March 2018 correspondence could not be accepted as a statement in lieu of substantive appeal because it was not timely. A February 2020 Board decision found that the March 2018 statement, and subsequent April 2018 VA Form 9, Appeal to the Board, were not timely and denied the appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a June 2021 Joint Motion for Remand (JMR) by the parties. Whether a timely substantive appeal was filed in response to a December 2017 SOC denying the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD. The Veteran and his attorney assert that the Board misinterpreted and misapplied the presumption of regularity rebuttal standard when it demanded claimant-specific evidence that the RO failed to mail the December 2017 SOC. Additionally, the Veteran and his attorney assert that he is entitled to equitable tolling because the evidence is consistent with his reports of non-receipt of the December 2017 SOC, and he exercised due diligence in pursuit of his rights between the time the SOC was mailed and the time he became aware of it. Following a review of the evidence of record, the Board finds that the Veteran's April 2018 VA Form 9 should be considered timely. The reasons for this decision follow. In general, RO decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claimant must file a notice of disagreement (NOD) within one year from the date that notice of a rating decision is mailed; otherwise, the rating decision will become final. 38 C.F.R. §§ 19.52(a), 20.1103. If a timely, valid NOD is filed in response to a rating decision, that rating decision cannot be considered a final decision; instead, the claim will remain pending until VA re-adjudicates it in a statement of the case (SOC). Then, a VA Form 9 or substantive appeal must be filed either (1) within 60 days from the date on which the RO mailed the SOC to the Veteran; or (2) within the balance of the one year period following the date of mailing of the rating decision, whichever period ends later. See 38 C.F.R. §§ 19.32, 19.52(b). If a veteran does not file a timely VA Form 9 or substantive appeal, then the underlying rating decision becomes final. 38 C.F.R. § 19.32. Whether a substantive appeal has been timely filed is an appealable issue. 38 C.F.R. § 19.34. Claimants and their representatives are entitled to notice of any decision made by VA, including in an SOC. 38 C.F.R. § 3.103. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant's last known address of record, it will be presumed that VA properly discharged its official duties); see also Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (finding the presumption of regularity states, in the absence of clear evidence to the contrary, that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations). A veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA's regular mailing practices were not followed. Crain v. Principi, 17 Vet. App. 182, 188 (2003). Such evidence includes "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Boyd, 27 Vet. App. at 72. 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, 103 (1998). If a veteran succeeds in rebutting the presumption of regularity, then the burden shifts to VA to establish that regular administrative practices were, in fact, observed. Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); Baxter v. Principi, 17 Vet. App. 407, 410 (2004); Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). If the presumption of regularity is rebutted and the date of the SOC itself cannot, alone, be used to determine the date on which it was mailed to a veteran, the burden shifts to VA to determine when the veteran received the SOC for purposes of determining whether a timely substantive appeal was received following receipt of the SOC. Crumlich v. Wilkie, 31 Vet. App. 194, 203-204 (2019) (holding that the portion of 38 C.F.R. § 20.302(b)(1), which creates a presumption of the date of mailing of a SOC for the purposes of determining whether an appeal has been timely filed is invalid). More recently, in Romero v. Tran, 33 Vet. App. 252 (2021), the Court held that the presumption of regularity attaches to VA's mailing of an SOC because the mailing of the SOC to the claimant and representative is a legal duty as provided in statute and regulation; no further evidence is required to trigger the presumption. Additionally, the Court held that rebuttal of the presumption of regularity requires clear evidence that VA failed to properly discharge its duty, but such evidence need not be claimant specific. Id. Finally, the Court held that once the presumption of regularity as to a mailing is rebutted, the Secretary has the burden of establishing actual mailing or receipt by a preponderance of the evidence. Id. By way of history, a March 2014 rating decision denied service connection for PTSD and reopened and denied service connection for a mental condition. The Veteran submitted a timely notice of disagreement (NOD) in June 2014. In December 2017, VA issued a statement of the case (SOC). Thereafter, in November 2016, February 2017, June 2017, August 2017, and November 2017, the Veteran's attorney submitted repeated requests to have the Veteran scheduled for a VA examination in conjunction with his claims. In December 2017, the Veteran's attorney submitted VA Form 21-4142 to authorize VA to attempt to obtain relevant treatment records from Florida State Hospital. Again, in March 2018, the Veteran's attorney submitted an additional request to have the Veteran scheduled for a VA examination regarding his pending claims. Thereafter, in April 2018, VA notified the Veteran and his attorney that the March 2018 correspondence could not be accepted in lieu of a VA Form 9 or substantive appeal, as the time limit to continue the appeal had passed. The Veteran was informed that he was required to submit a formal appeal no later than one year following notification of the adverse decision he was appealing, or 60 days from the issuance of an SOC, whichever is later. VA stated that the Veteran was notified on March 26, 2014 of the adverse decision, after which the Veteran filed an NOD on June 14, 2014, and an SOC was issued on December 14, 2017; therefore, the Veteran had until February 14, 2018 to submit a substantive appeal. The Veteran's attorney responded to the April 2018 notification letter that same month by submitting a VA Form 9 along with an affidavit declaring that his office did not receive the December 2017 SOC and did not become aware of it until April 16, 2018, when it was found within VA's electronic database, Veterans Benefits Management System (VBMS). Additionally, the attorney submitted a concurrent letter reporting ongoing issues with VA's mail system and failures to provide the attorney with timely mailings and decision documents, as well as prior email correspondence from November 2015 to VA's Director of Compensation Service regarding concerning with VA's irregular mail system, and a July 2017 United States Government Accountability Office (GAO) report which highlights deficiencies in VA's management of its mailing operations. In May 2018, the Veteran and his attorney were notified that the VA could not accept his April 2018 VA Form 9 as a substantive appeal, as the time limit to continue the appeal had passed. In July 2018, the Veteran submitted an NOD with the May 2018 VA letter, appealing the decision and arguing that his VA Form 9 was, in fact, timely. An August 2019 SOC determined that a timely substantive appeal was not received in response to the December 2017 SOC denying the Veteran's claim to service-connect PTSD and a mental condition. A February 2020 Board decision determined that a timely substantive appeal was not received following the issuance of the December 2017 SOC. Specifically, the Board found that the presumption of regularity was not been rebutted as the cover letter to the SOC in question was sent to the addresses of record for the Veteran and his attorney in December 2017, and it was not returned as undeliverable from either party. Additionally, previous VA correspondence sent to the same addresses (and also later to the Veteran) was likewise not returned as undeliverable. Statements from the Veteran's attorney to the effect that they did not actually receive the SOC are insufficient to rebut the presumption of administrative regularity. Additionally, while the Veteran's attorney argued that the VA has difficulties in mailing documents to claimants and their representatives, as demonstrated with his August 2017 email and the GAO report, the Board found that there was no evidence that, in this particular case, the SOC was somehow mishandled and had failed to be issued by the VA in December 2017. As noted above, following the February 2020 Board decision, the parties agreed to a JMR in June 2021, which was subsequently ordered by the Court later that same month. Therein, the parties agreed that the Board previously erred by not providing an adequate statement of reasons or bases to support its determination that the Veteran's deadline for filing a substantive appeal should not be equitably tolled. Once a letter is mailed, "[a]n issue of fact arises when the intended recipient alleges that the letter was never actually received." Rios v. Nicholson, 490 F.3d 928, 931 (Fed. Cir. 2007). The Board found that the Veteran "received" the December 2017 SOC, and that there were no "extraordinary circumstances that precluded the Veteran from filing a timely substantive appeal or otherwise showing good cause for the failure to timely file a substantive appeal and establish entitlement to a waiver of timeliness." However, the Board did not cite to any facts or law to support its finding that the Veteran and his representative "received" a copy of the December 2017 SOC. Therefore, the parties agreed that remand was warranted for the Board to readjudicate the issue of fact of whether the Veteran and his representative "received" a copy of the December 2017 SOC. Finally, the parties agreed that upon remand, the Board must apply the Court's holding in Romero to the facts of this appeal. Under the holding of Romero, the Board finds that the presumption of regularity attaches to VA's legal duty of mailing the December 2017 SOC and that no further evidence is required to trigger the presumption. However, following a review of the evidence of record, the Board finds that the presumption of regularity has been rebutted with respect to the timeliness of the Veteran's March 2018 substantive appeal. In particular, the Board finds credible the attorney's April 2018 affidavit that declared, under penalty of perjury, that he did not receive the December 2017 SOC until he became aware of it on April 16, 2018, when it was found within VBMS. Additionally, the Board finds credible the attorney's concurrent letter and supporting documents detailing ongoing issues with VA's mail system and failures to provide the attorney with timely mailings and decision documents. The Board finds that this is clear evidence detailing the attorney's personal experience with deficiencies within VA's mail system that have resulted in failure to properly discharge its duty with respect to the duties to notify and assist, including the same 2017 GAO report submitted in Romero detailing VA's deficiencies with its management of outgoing mail, and moreover, the Court's holding in Romero does not require such evidence to be specific to the Veteran in this particular instance. The representative's assertions are further supported by the fact that a VA Form 9 was filed soon after the receipt of the April 2018 VA notification letter which informed him that a March 2018 request to schedule a VA examination could not be accepted in lieu of a VA Form 9 or substantive appeal, and also by the information provided within the GAO report regarding VA's history of failing to regularly mail copies of decisional documents. Additionally, given that the presumption of regularity as to mailing of the December 2017 SOC has been rebutted, the Board finds that the preponderance of evidence does not establish actual mailing or receipt of the December 2017 SOC. In conclusion, the Board finds that the December 2017 mailing did not satisfy VA's legal duty to provide a copy of the SOC by a preponderance of the evidence, as described 38 C.F.R. §§ 3.103 and 19.30. As such, the time for response did not begin to run because the Veteran's attorney did not actually receive notice of the December 2017 SOC. See Romero, 33 Vet. App. 252 (noting that where VA fails to carry the burden to show actual mailing or receipt, the clock does not start to run on appellant's time to appeal from an SOC until appellant's representative receives the SOC). Thus, the response period should not have begun to run until April 2018, when the Veteran's attorney "received" the December 2017 SOC by locating the document in VBMS. Therefore, the Board finds that the April 2018 VA Form 9 is timely, and the Veteran's appeal of the March 2014 rating decision should proceed and be reinstated. Given the above, the matter must be remanded for readjudication on the merits by the Agency of Original Jurisdiction (AOJ), including any additional development deemed warranted and with consideration of all evidence received since the December 2017 SOC. REASONS FOR REMAND 2. Entitlement to service connection for a psychiatric disorder, to include PTSD, is remanded. As discussed above, the Board has found that the Veteran's April 2018 substantive appeal should be considered timely, and as such, his appeal concerning the March 2014 rating decision, which denied service connection for PTSD, and reopened and denied service connection for a mental condition, remains pending. As such, the matter on appeal, recharacterized herein by the Board for the sake of clarity as entitlement to service connection for a psychiatric disorder, to include PTSD, must be remanded for additional development and readjudication on the merits, including any additional development deemed warranted by the RO and with consideration of all evidence received since the December 2017 SOC, after which a supplemental statement of the case (SSOC) should be issued. In reviewing the record, the Board could see there are outstanding relevant medical records that should be obtained. For example, of record are VA treatment records from a June 1981 hospitalization, where the Veteran's family brought him there because of bizarre behavior he was exhibiting. The hospitalization record shows that the past psychiatric history showed the following entries: (1) 1979-1980 several admissions to the County Hospital Bartow; (2) August 1980 Tennessee Valley VA hospital for schizophrenia; and (3) March 1981 Tennessee Valley VA hospital for conversion reaction. The hospital summary noted that the Veteran had been there previously in March 1981 for similar complaints. VA should attempt to obtain the August 1980 Tennessee Valley VA hospitalization treatment records for schizophrenia and the March 1981 Tennessee Valley VA hospitalization treatment records for conversion reaction. The county hospital in Bartow would appear to be in Florida. The Veteran has provided VA permission to obtain treatment records from 1980 to 2000 from Florida State Hospital in Chattahoochee, Florida, which the Board assumes is a different facility than the county hospital in Bartow. In December 2017, the Veteran submitted a VA Form 21-4142 for Florida State Hospital. As it is now outdated, the Board will request that he submit an updated VA Form 21-4142 for Florida State Hospital in Chattahoochee, Florida, and another VA Form 21-4142 for the county hospital in Bartow, where he had several admissions from 1979 to 1980, and he is asked to provide the name and location of such facility. Additionally, the record shows that VA attempted to get the Veteran's records from the Social Security Administration involving his claim for disability benefits. A September 2006 Share Print Screens document shows a disability onset date of August 31, 1981. In June 2003, August 2003, and October 2003, VA had requested the records from SSA. In a February 4, 2004 reply, SSA checked the reply that said: "Your request was misrouted & is being returned to update your system and re-submit to the proper SSA jurisdiction office: SSA [illegible] Florida, 1947 State Road, 60 East, Valrico, Florida 33594." It does not appear that VA contacted that facility to get the SSA disability records. VA should contact SSA to see if there are records from the Veteran's 1981 disability claim or any subsequent documentation for continuing eligibility. The matter is REMANDED for the following action: 1. The Veteran is asked to provide VA with permission to obtain the following records: Treatment records from 1979 to 1980 from the county hospital in Bartow. The Veteran is asked to provide the full name and address of such facility; Treatment records from 1980 to 2000 from Florida State Hospital in Chattahoochee, Florida; And any other relevant non-VA treatment records pertaining to treatment for a psychiatric disorder. 2. Obtain the August 1980 Tennessee Valley VA hospitalization treatment records for schizophrenia and the March 1981 Tennessee Valley VA hospitalization treatment records for conversion reaction. 3. Contact the Social Security Administration to see if there are records from the Veteran's 1981 disability claim or any subsequent documentation for continuing eligibility. 4. Take appropriate steps to reinstate the appeal, conduct any additional development that the RO deems is warranted (separate from what is listed above), and readjudicate the Veteran's appeal perfected from the December 2017 SOC concerning the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, with consideration of all evidence of record. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.