Citation Nr: 21069279 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-53 960 DATE: November 18, 2021 ORDER An earlier effective date of January 31, 1982 is granted for the award of service connection for dysthymic disorder. FINDINGS OF FACT 1. In March 1982, so within one year following his discharge from service, VA received the Veteran's claim for service connection for what was then more generally characterized as a nervous condition ("nerves"). 2. On May 10, 1982, VA mailed a request for Physical Examination to the Veteran's address of record that was returned as undeliverable. 3. A May 25, 1982 Compensation and Pension (C&P) Master Record, Audit Writeout, revealed a different address than the one that that notice of examination was mailed to, but VA did not then remail the notice of examination to the other address. 4. That same day, the Veteran's claim was disallowed. A decision letter was not provided due to "whereabouts unknown". 5. The Veteran's March 1982 claim of entitlement to service connection for a nervous condition ("nerves") remained pending and unadjudicated and amounts to essentially the same claim for dysthymic disorder that eventually was granted. CONCLUSION OF LAW The criteria are met for the granting of an earlier effective date of January 31, 1982 for the award of service connection for dysthymic disorder. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1975 to January 1982. In May 2016, the Board granted the Veteran's claim for service connection for dysthymic disorder. In August 2016, the Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) implemented the Board's grant of service connection for dysthymic disorder and assigned a 100 percent rating for this disability retroactively effective from April 7, 2012. In response, the Veteran appealed for an earlier effective date for the grant of service connection for this disability. The Veteran testified in support of his claim for an earlier effective date during an April 2021 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. An earlier effective date of January 31, 1982 is granted for the award of service connection for dysthymic disorder Historically, in March 1982, VA received the Veteran's claim of entitlement to service connection for a nervous condition ("nerves"). On May 10, 1982, VA mailed a request for Physical Examination to his address of record that was returned as undeliverable. That same day, his claim resultantly was denied. A decision letter was not provided due to "whereabouts unknown". During his April 2021 hearing before this Board, the Veteran testified under oath that he had duly informed VA of his move to another state prior to the May 1982 denial of his claim. While no record documents any contact with VA in this regard, a May 25, 1982 C&P Master Record, Audit Writeout, shows a new address. Furthermore, a review of records notes that VA educational benefits correspondences during that time were being mailed to the Veteran's new address. Therefore, it was clear that VA was aware of and had been provided his new address. At the very least, since this was indicated in VA-sanctioned records, all aspects of the agency should have known of his knee address; in other words, this information was imputed to the Agency. Cf. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (explaining that VA has constructive, if not actual, notice of additional evidence to the extent generated within VA's healthcare system, so it is deemed to be in VA's possession, even if not physically in the file). Consequently, the Veteran asserts that the May 1982 denial of his claim of service connection for a nervous condition never became a final and binding determination because he did not receive the required notice of the VA examination that had been scheduled in response to his claim, since the RO sent the notice of the examination to his former address. Generally, a rating decision does not become final and binding until written notification of the decision is issued to the claimant. See 38 U.S.C. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25 (2018). See also Best v. Brown, 10 Vet. App. 322, 325 (1997) (for a VA decision to become final and binding on a Veteran, he or she must first receive written notification of the decision); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995), citing Hauck v. Brown, 6 Vet. App. 518 (1994) (where an appellant never received notification of a decision denying his or her claim, then the usual one-year limit for timely appealing the decision does not begin to accrue ("run"); instead, it is tolled ("stopped"). The written notification also must explain the reasons and bases for the decision and apprise the Veteran of his or her procedural and appellate rights, in the event he or she disagrees with the decision and elects to appeal. Here, after reviewing the relevant evidence, the Board agrees with the Veteran's argument and finds that the RO sent the correspondence notifying him of his VA examination to his old address, and did not attempted to notify the Veteran at his new address after notice was returned undeliverable. Thus, he did not receive that important notification. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE)). 38 C.F.R. § 3.105(a). CUE is not at issue here. The primary focus in this case is VA's treatment of evidence pertaining to mailing addresses. There is a presumption of administrative regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). VA need only mail notice or other correspondence to the Veteran's last address of record for this presumption to attach. Mildenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). This requires showing, not only that the Veteran did not receive the notice or correspondence in question, but also that there was another viable address where he could have been reached. Absent this, VA is entitled to rely on his address of record. See Cross v. Brown, 9 Vet. App. 18, 19 (1996). An appellant's assertion of nonreceipt without more is insufficient to overcome the presumption of regularity that VA properly mailed its decision in the regular course of business. See Mason v. Brown, 8 Vet. App. 44, 55 (1995). Here, the presumption of regularity in the mailing of the May 1982 examination notification is rebutted. There does not appear to be any evidence of documented contact from the Veteran regarding a change of address prior to the May 1982 denial of his claim. However, the May 1982 examination notice letter was returned to VA as undeliverable and there was another viable address where he could have been reached. Thus, the presumption of regularity has been rebutted by clear evidence to the contrary. Entitlement to an effective date of December 31, 1982, for the award of service connection for dysthymic disorder is warranted. Because the presumption of regularity has been rebutted, the May 1982 disallowance remained pending and unadjudicated and never became final. [The assignment of an initial rating for dysthymic disorder (for the period from December 31, 1982 to April 6, 2012) is a downstream issue for the AOJ to address in the first instance.] KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.