Citation Nr: A21019167 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 200618-94015 DATE: December 2, 2021 ORDER A timely substantive appeal was filed in response to an October 2019 statement of the case, and the appeal is granted. FINDING OF FACT 1. At the time of the October 2019 statement of the case, the Veteran was represented by the attorney shown above. 2. The Veteran's representative was not notified of the October 2019 statement of the case. CONCLUSION OF LAW A timely substantive appeal was received following an October 2019 statement of the case. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.32, 19.34, 19.52, 20.201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1993 to January 1997. The decision on appeal was issued in April 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). In the June 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In August 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. A timely substantive appeal was filed in response to an October 2019 statement of the case, and the appeal is granted. The Veteran contends a timely substantive appeal was filed in response to an October 2019 statement of the case (SOC) that denied entitlement to service connection for bilateral hearing loss. The Veteran contends neither he nor his representative were notified of the October 2019 SOC. Additionally, the Veteran's representative asserts that a VA Form 9 was in the system October 28, 2019, but was not uploaded correctly in the filing system. At the time of the issuance of the October 2019 SOC, the Veteran's claim was being processed under the legacy appeals system. Under the laws and regulations of this appeal system, appellate review was initiated by the filing of a notice of disagreement (NOD) and, after a SOC has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 19.20, 20.200. The SOC will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative. 38 C.F.R. § 19.30 (a). In the legacy appeal system, a substantive appeal consists of a properly completed VA Form 9, Appeal to Board of Veterans' Appeals, or correspondence containing the necessary information. 38 C.F.R. § 20.202. Proper completion and filing of a substantive appeal are the last actions an appellant must take to perfect an appeal. Id. The substantive appeal must be filed within 60 days from the date that notification of an SOC is sent to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later. 38 C.F.R. § 20.302 (b). The date of mailing of the SOC will be presumed to be the same as the date of the SOC, and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Id. In this case, a November 2018 rating decision denied service connection for bilateral hearing loss. On October 17, 2019, VA received a VA Form 21-22a, Appointment of Individual as Claimant's Representative. On October 23, 2019, VA received a notice of disagreement from the Veteran's attorney. On October 28, 2019, the AOJ issued a SOC denying service connection for bilateral hearing loss. The letter was addressed and mailed to the Veteran; neither the name nor address of his representative was included in the carbon copy (CC) line. On October 28, 2019, the representative mailed another copy of the October 2019 notice of disagreement and argument. A January 2020 Report of General Information (RGI), VA Form 27-0820, is of record. The RGI shows the Veteran called VA and requested that the RGI be accepted in lieu of a VA 9. The VA representative on the telephone call wrote in the statement section, the "Veteran has appeal in system dated 10/28/19 and not uploaded correctly in proper tab of the system. Please upload so we can complete first call resolution process." On April 13, 2020, VA received a VA Form 9 from the Veteran's attorney. In the attached brief, the attorney asserted VA failed to mail a copy of the October 2019 statement of the case to both the Veteran and his representative. In April 2020, correspondence was received from the Veteran in which he stated that he "did not receive the October 28, 2019 letter of the status of my case." In April 2020, the RO informed the Veteran that his VA 9 was untimely and would not be accepted. The letter was addressed and mailed to the Veteran; his representative was included in the CC line. The appeal stems from this rating determination. In August 2021, Mr. Kemmerly indicated that he checked VBMS in February 2020 and was able to see that an SOC had been issued in October 2019. The Veteran testified that he did not receive the October 2019 SOC before being contacted by Mr. Kemmerly. For this reason, Mr. Kemmerly explained, he had the Veteran sign the (April 2020) affidavit attesting that he had not received the SOC. The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105 (d) (3); 38 C.F.R. § 20.101 (d). The AOJ may close the case for failure to respond after receipt of the SOC, but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C. § 7105 (d); 38 C.F.R. § 19.32, 20.101 (d). After a review of the evidentiary record, the Board will waive the timeliness requirement as it pertains to the substantive appeal. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) ("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."). The presumption of regularity extends to VA's ministerial acts of mailing decisional and notice documents to claimants. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO's mailing of a rating decision). Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. 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) (citing Clarke, 21 Vet. App. at 133 ). This presumption may only be rebutted with "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). 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 (quoting Crain v. Principi, 17 Vet. App. 182, 186 (2003)). The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. Id. However, the presumption of regularity may be rebutted where there is evidence that (1) VA used an incorrect address on the mailing in question or (2) the mailing was returned as undeliverable and "there were other possible and plausible addresses available to VA" at the time. Id. at 72. It is clear from the controlling case law that statements from the Veteran's attorney alleging that neither he nor the Veteran received the SOC, standing alone, are not sufficient to rebut the presumption of regularity. See Jones v. West, 12 Vet. App. 98 (1998). If a claimant alleges non-receipt of a VA notice letter, clear evidence to rebut the presumption of regularity "mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." Clarke, 21 Vet. App. at 133. An addressing error is consequential where it "results in an address that does not contain all the necessary address elements" sufficient to enable delivery. Id. at 135. The electronic claims file does not reflect that the October 2019 SOC, which was mailed to the Veteran, was ever returned to VA as undeliverable. However, the Board observes that the SOC mailed to the Veteran does not appear to also have been sent to his representative, as he was not included in the CC line. On October 25, 2019, correspondence received from the Veteran's attorney was associated with the electronic claims file, and was acted upon by VA; specifically, the fulfillment of a Privacy Act request. Therefore, it is clear that VA recognized Mr. Kemmerly as the Veteran's accredited representative prior to the issuance of the SOC. By contrast, the April 2020 letter informing the Veteran of his untimely filed substantive appeal did include Mr. Kemmerly in the CC line. Interestingly, this letter incorrectly stated, "A statement of the case was issued to you on October 25, 2019. Therefore, you had until June 17, 2020 to submit your substantive appeal." As previously noted, however, a timely filed substantive appeal would have needed to been filed within 60 days of October 25, 2019. At any rate, 38 C.F.R. § 19.30 (a) indicates that an SOC is to be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative. As it appears evident that Mr. Kemmerly was not provided with a copy of the SOC, along with any copy the Veteran may or may not have received, the Board will waive the timeliness requirement in this case and accept the late-filed substantive appeal. The appeal is granted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.