Citation Nr: 21070665 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-22 765 DATE: November 24, 2021 ORDER Entitlement to an effective date prior to August 31, 2015, for the award of service connection for chronic lymphocytic leukemia (leukemia) is denied. FINDINGS OF FACT 1. There is not sufficient evidence in the record to rebut the presumption of regularity. 2. The Veteran received notification of the December 2006 rating decision which denied entitlement to service connection for leukemia. 3. The Veteran did not appeal the December 2006 rating decision within one year of receipt, and the rating decision is thus final. CONCLUSION OF LAW The criteria for an effective date earlier than August 31, 2015, for the award of service connection for leukemia have not been met. 38 U.S.C. §5102(b), 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1971 to July 1974, from August 1976 to November 1978, from April 1983 to January 1992, and from November 1999 to February 2000. He also had Reserve component service from October 1971 to June 2005. The Board thanks the Veteran for his years of dedicated service. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board denied the currently appealed claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court issued an Order granting a Joint Motion for Remand (JMR) vacating and remanding the Board's July 2020 decision. The Court found that the Board had not provided adequate reasons and bases for its decision, and instructed the Board to issue a new decision. Earlier Effective Date The Veteran seeks an earlier effective date for service connection for leukemia. He initially filed a claim for this condition in October 2005, and was denied service connection in a December 2006 rating decision. The decision was not appealed. In August 2015, the Veteran again filed a service connection claim for leukemia. In September 2016, the RO granted service connection effective August 31, 2015, the date the second claim was received. The Veteran appealed, arguing that the effective date should be the date of his first claim in October 2005. Generally, a decision that is not appealed becomes final one year after the claimant is notified of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A final rating decision is not subject to revision on the same factual basis except by duly constituted appellate authorities, or when the decision contains clear and unmistakable error (CUE) as provided in 38 C.F.R. § 3.105. See 38 C.F.R. § 3.104(a). (CUE is a very rare kind of error, which must be clearly and specifically alleged, and is not at issue in this case. See 38 C.F.R. §§ 3.105, 20.1403.) The relevant claim for deciding his effective date would, therefore, be the August 2015 claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, the key point here is "after the claimant is notified." 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. See also Best v. Brown, 10 Vet. App. 322, 325 (1997). It is typically assumed that VA has timely issued notification of rating decisions to claimants, as the June 2021 JMR explained: The presumption of regularity provides that, in the absence of clear evidence to the contrary, the Court will presume that public officers have properly discharged their official duties. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). The presumption has been applied to the Government's mailing of certain types of notices. See e.g., Crain v. Principi, 17 Vet. App. 182, 186 (2003) ("The law presumes the regularity of the administrative process.... "); Davis v. Principi, 17 Vet. App. 29, 37 (2003) (applying a "presumption of regularity of mailing"). The presumption of regularity is rebutted by submission of clear evidence to the contrary. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992) (quoting Rosler v. Derwinski, 1 Vet. App. 241, 242 (1991)). Once the presumption is rebutted, the Secretary has the burden to show that the document was mailed in the appropriate manner or that the appellant actually received a copy of the document. Sthele v. Principi, 19 Vet. App. 11, 19 (2004). However, in this case, the JMR pointed out that the record shows discrepancies in the addresses used to send mail to the Veteran in 2005 and 2006. Mail sent to the Veteran in June 2006 and earlier was sent to 2056 NW 55TH BLVD APT. C-3, GAINESVILLE FL 32653, while the December 2006 rating decision was sent to 2006 NW 55TH AVE APT F11, GAINESVILLLE [sic] FL 32653. The JMR highlighted that the Board must "discuss whether the presumption of regularity was rebutted when the notice letter and enclosed rating decision were mailed to an address different from the address from which Appellant had most recently mailed a letter." After careful examination of the record, the Board finds that it was not. The last time the 2056 NW 55TH BLVD address appears to have been used is in a request for a VA medical examination, printed in September 2006, which lists this as the Veteran's current address. However, when the Veteran attended his next VA examination in December 2006 (which was unrelated to the claimed condition,) his address was listed as 2006 NW 55TH AVE APT F11, GAINESVILLE FLORIDA 32653. A VA treatment record from December 2006 lists the Veteran's address as 2006 NW 55TH AVE APT F11, GAINESVILLE FLORIDA 32653, while older treatment records use the 2056 NW 55TH BLVD address. In June 2008 a VA Form 21-8951 Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, which had been sent to the Veteran at 2006 NW 55TH AVE APT F11, GAINESVILLLE [sic] FL 32653, was completed and returned by him. The Veteran returned the form in an envelope with a return address sticker, listing his current address as 2006 NW 55TH AVE #F11, GAINESVILLE FLORIDA 32653. The record shows that mail continued to be sent to the Veteran at the 2006 NW 55TH AVE address until March 2011, when he sent a letter to VA indicating an entirely new address. Based on the above, the Board finds that the most reasonable explanation for the "discrepancy" between the 2056 NW 55TH BLVD address and the 2006 NW 55TH AVE address is that the Veteran's address simply changed between June 2006 and December 2006. In light of this, the only irregularity in the address used by the RO to mail the December 2006 rating decision is the use of an extra "L," addressing the letter to "Gainesvillle," Florida rather than Gainesville, Florida. The Board finds nothing to suggest that this typo prevented delivery of the notification letter. For one, the mistaken inclusion of a third "L" in "Gainesville" also occurred in multiple letters sent to the 2056 NW 55TH BLVD address, some of which the Veteran directly responded to. The error was also included in the VA Form 21-8951which the Veteran must have received, as the form was completed and returned. For another, the Board notes that "Gainesvillle, FL," with three "Ls," does not exist; if the use of an extra L prevented a letter from reaching the Veteran, it would not go to a different address, it would simply be returned as undeliverable. The only piece of returned mail in the claims file is from August 2011; this mail was sent to 2006 NW 55TH AVE APT F11, GAINESVILLE FLORIDA 32653. In this letter, Gainesville was spelled correctly; the letter was most likely undeliverable because, as mentioned above, the Veteran had moved to a new address in March 2011. Finally, the Board notes that neither the Veteran, nor his representative, has ever alleged that the Veteran did not receive notice of the December 2006 rating decision. The Veteran's August 2015 VA Form 21-526EZ references the December 2006 denial of service connection. His June 2017 Notice of Disagreement does not allege that he did not receive the December 2006 rating decision, and only reflects his belief that the claim was decided incorrectly. His May 2020 brief likewise argues only that he should receive an earlier effective date because "the Veteran believes all the evidence was available in his VA efolder in 2005." Even after the June 2021 JMR, which raised the issue of notification and then explicitly noted the Veteran's right to submit additional argument, the Veteran has not submitted any statement or argument that suggests he did not receive timely notification of the December 2006 rating decision. Based on the above, the Board does not find clear evidence that would rebut the presumption of regularity. It is presumed that the Veteran received timely notification, by mail, of the December 2006 rating decision. As such, the December 2006 rating decision is final, and the Board must regrettably deny the Veteran's claim for an earlier effective date for service connection. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.