Citation Nr: 21072215 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-50 436A DATE: December 2, 2021 ORDER The issue of whether the decision to deny compensation for gastroesophageal reflux disease (GERD) was clearly and unmistakably erroneous is dismissed. FINDING OF FACT Neither the Veteran nor his representative timely filed a Substantive Appeal in response to the September 2017 Statement of the Case. CONCLUSION OF LAW The criteria for dismissal of the issue of whether the decision to deny compensation for GERD was clearly and unmistakably erroneous have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.200, 20.202. 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from June 1988 to June 1992 and with the United States Air Force from October 2006 to January 2010. This matter stems from an October 2015 rating decision. An appeal consists of a timely filed Notice of Disagreement, a Statement of the Case, and a timely filed Substantive Appeal (VA Form 9). 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. In the instant case, no Substantive Appeal has been filed by the Veteran in response to the September 2017 Statement of the Case. VA enjoys a "presumption of regularity" that "supports official acts of public officers" and "allows courts to presume that what appears regular is regular." Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA's ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO's mailing of a rating decision); Crain v. Principi, 17 Vet. App. 182, 186 (2003) (RO's mailing of a Statement of the Case); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (RO's mailing of an application for dependency and indemnity compensation (DIC)); Davis v. Brown, 7 Vet. App. 298, 300 (1994) (Board's mailing of a copy of its decision). For the following reasons, that presumption has not been rebutted in this case. The Statement of the Case was initially mailed in September 2017, but returned as undeliverable. The Statement of the Case was resent in July 2018, and there is no indication in the record that the document was not received. There has been no allegation of non-receipt of the notice, and even such assertion of non-receipt alone does not constitute clear evidence to rebut the presumption of regularity. See Miley v. Principi, 15 Vet. App. 97 (2001). Instead, the Veteran's representative filed a new claim in January 2020 under the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), which took effect on February 19, 2019. That claim was remanded by the Board under AMA in April 2021. While an internal document flagged an October 2017 correspondence as the Substantive Appeal, a cursory glance at this document reveals that it is a status inquiry only and does not qualify as a Substantive Appeal. Although Percy v. Shinseki, 23. Vet. App. 37 (2009), dictates that VA may waive any issue of timeliness in the filing of a substantive appeal, the fact that no substantive appeal has been filed in this case renders the question of a waiver moot. See Mason v. Brown, 8 Vet. App. 44, 56 (1995) (holding that the Board's decision that the claimant had not completed his appeal was not clearly erroneous where the record on appeal did not indicate that he had filed a substantive appeal); Cuevas v. Principi, 3 Vet. App. 542 (1992) (holding that where the claimant did not perfect his appeal by filing a substantive appeal, the VA regional office decision had become final). Thus, the Board need not consider whether VA's actions led the Veteran to believe this matter was on appeal. Accordingly, the issue of whether the decision to deny compensation for GERD was clearly and unmistakably erroneous as stemming from the October 2015 rating decision has not been timely appealed to the Board. The issue must be dismissed. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.