Citation Nr: 21070706 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-17 043 DATE: November 24, 2021 ORDER The October 27, 2016 substantive appeal was timely filed as to the Statement of the Case (SOC) dated April 11, 2014 and the appeal as to the timeliness of the substantive appeal is granted. FINDINGS OF FACT 1. There is clear evidence of irregularity with respect to the mailing of the April 11, 2014 SOC. 2. The VA did not notify the Veteran's representative of the April 11, 2014 SOC. 3. On October 19, 2016, the Veteran's representative received actual notice of the April 11, 2014 SOC. 4. On October 27, 2016, within 60 days of when the Veteran's representative was actually notified of the April 11, 2014 SOC, the VA received the Veteran's substantive appeal. CONCLUSION OF LAW The presumption of regularity is rebutted with respect to the mailing of the April 11, 2014 SOC; the Veteran submitted a timely substantive appeal in response to the April 11, 2014 SOC and perfected an appeal as to all issues addressed therein. 38 U.S.C. §§ 5104, 7105 (as in effect prior to February 19, 2019); 38 C.F.R. §§ 3.103, 19.22, 19.30, 19.34, 19.52. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1990 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) that the Veteran's October 27, 2016 substantive appeal was untimely with respect to the SOC dated April 11, 2014. In April 2021, the Veteran testified at a virtual hearing before the undersigned addressing the issue of the timeliness of the substantive appeal as well as the merits of the issues addressed in the April 11, 2014 SOC. As discussed below, the Board has accepted the October 27, 2016 as timely. Thus, the Board has bifurcated this appeal so as to honor the request of the Veteran's representative at the Board hearing for a 90-day hold before addressing the merits of the underlying appeal. See Locklear v. Shinseki, 24 Vet. App. 311 (2011). Following the expiration of this 90-day hold, the merits of the issues from the April 2014 SOC will be addressed in a separate decision. Procedural and Factual History A September 2013 rating decision granted service connection for a benign skin lipoma, granted an increased 10 percent rating for a left shoulder disability, denied service connection for a back condition and right side pain and numbness, and determined that new and material evidence had not been received to reopen a claim for service connection for an acquired mental disorder. Through his representative, in October 2013 the Veteran filed a timely Notice of Disagreement (NOD) with the September 2013 VA rating decision. The claims file includes an SOC dated April 11, 2014. However, the cover letter for the SOC does not bear a date. The SOC also lists the power of attorney as "AGENT OR PVT ATTY EXCLUSIVE CONTACT NOT REQUESTED." In October 2014, the Veteran submitted a claim of entitlement to service connection for PTSD. However, there was no cover letter from his attorney attached to this claim. On October 19, 2016, the Veteran's attorney submitted a request for a copy of the "Report of Contact" following a November 23, 2015 telephone call to the VA status line regarding the Veteran's case. A response to this request was sent in February 2017. On October 27, 2016, the Veteran's attorney submitted a VA Form 9 and stated that the substantive appeal was in response to the April 11, 2014 SOC. The attorney explained that this submission was late with good cause because the Veteran and attorney were not notified of the April 2014 SOC. The AOJ rejected the October 27, 2016 VA Form 9 as untimely. The Veteran appealed that decision. Law and Regulations The procedure in the underlying matter is governed by the rules applicable to VA's legacy appeals system. Under those rules, following the issuance of an SOC an appellant may perfect an appeal by filing a VA Form 9 (Substantive Appeal) within 60 days of the issuance of the SOC, or within one year of the issuance of the decision on appeal, whichever is later. See 38 C.F.R. § 19.52. VA regulations provide that an appellant will be forwarded a copy of the SOC at the last address of record and the representative, if any, will be provided with a separate copy of the SOC. See 38 C.F.R. § 19.30(a); see also 38 C.F.R. § 3.103 (describing an appellant's right to notice more generally, including the right to have their representative notified). Presumption of Regularity At the Board hearing, the Veteran's attorney addressed the presumption of regularity in the context of Crumlich v. Wilkie, 31 Vet. App. 194 (2019). In that case, the Secretary of the VA stated that it was VA's regular practice to include a date of mailing on the cover letter for an SOC. See Crumlich, 31 Vet. App. at 205-206. The United States Court of Appeals for Veterans Claims (CAVC) held that given the VA's concession that it is regular practice to place a date on a cover letter, an undated SOC is sufficient to rebut the presumption of regularity with respect to the date of mailing. The Board observes that the presumption of regularity was also addressed in the recent case Romero v. Tran, 33 Vet. App. 252 (2021). In that case, the CAVC explained that the existence of a legal duty is enough for the presumption of regularity to attach. Romero, 33 Vet. App. at 268. Once the presumption attaches, the next question is whether there is clear evidence to rebut the presumption, and if there is clear evidence of irregularity then the presumption is rebutted and the burden shifts to the VA to prove that it did its duty in this case. See id. Though a statement of nonreceipt of nonreceipt standing alone is not enough to rebut the presumption, a statement of nonreceipt coupled with other evidence can be. Id. Other evidence can include, for example, "clear evidence to the effect that VA's 'regular' mailing practices are not regular or that they were not followed.'" Id. (quoting Ashley v. Derwinski (Ashley II), 2 Vet. App. 307, 309 (1992). The CAVC explained that while claimant-specific evidence of irregularity is sufficient to rebut the presumption of irregularity, it is not necessary. Instead, the standard for what evidence suffices as clear rebuttal evidence in a given case depends on the nature of the presumption at issue in a given case, and clear evidence need not be direct evidence that the VA failed to mail something to an appellant. The CAVC ultimately concluded that the Board had determined that there was substantial, albeit non-claimant-specific, evidence that VA's mailing system was irregular. Thus, the presumption of regularity was rebutted. The CAVC explained that once the presumption of regularity was rebutted, the burden shifted to the VA to prove, by a preponderance of the evidence, that the SOC was actually mailed. Analysis VA had a legal duty to mail a copy of the April 11, 2014 SOC to the Veteran and the Veteran's representative. Thus, the presumption of regularity attaches, and the next question is whether there is clear evidence to rebut the presumption of regularity. As the cover letter to the April 11, 2014 SOC is undated, the Crumlich rule is dispositive. By failing to date the cover letter placed in the claims file, the VA did not follow its usual practices. Thus, the undated cover letter is clear evidence of irregularity and the presumption of regularity is rebutted, and the burden shifts to VA to establish when the SOC was actually mailed. Here, the evidence in the claims file as to when the SOC was actually mailed is the April 11, 2014 date on the SOC, as well as a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) that the Veteran filed on October 8, 2014. In this regard, the SOC addressed entitlement to service connection for an acquired psychiatric disorder, and thus it is logical that the Veteran might file a PTSD claim after learning that his claim for an acquired psychiatric disorder was denied. However, this is speculative, and it does not have more probative weight than the statement of non-receipt. Indeed, the Veteran's attorney did not submit the October 2014 PTSD claim, which indicates that the PTSD claim was filed on the Veteran's initiative. Thus, even assuming that the filing of the PTSD shows that the Veteran received the April 2014 SOC which it does not the filing of the PTSD claim does not show that the April 2014 SOC was mailed to the Veteran's representative. Hence, the VA has not established the date of mailing by a preponderance of the evidence, and the next question is whether a timely substantive appeal was received following the attorney's receipt of actual notice of the April 11, 2014 SOC. On October 19, 2016, the Veteran's attorney requested a copy of a "Report of Contact" regarding an inquiry into the status of the Veteran's case. It is likely that the attorney had actual notice of the April 11, 2014 SOC on October 19, 2016. As the substantive appeal was received on October 27, 2016, it is timely. Accordingly, the appeal as to the timeliness of the October 27, 2016 substantive appeal is granted; the substantive appeal is accepted as timely and the appeal of the September 2013 rating decision has been perfected. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.