Citation Nr: A21020485 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 200518-88222 DATE: December 23, 2021 ORDER A VA Form 9 (Substantive Appeal) having been timely filed as to the January 2019 Statement of the Case (SOC), reinstatement of the underlying legacy appeal is granted. FINDING OF FACT 1. The January 2019 SOC was mailed to an incorrect address of record and returned as undeliverable. 2. The Department of Veterans Affairs (VA) did not make another attempt to mail the Veteran a copy of the January 2019 SOC, despite requests from the Veteran and his representative. 2. The record is adequate to rebut the presumption of regularity in the mailing of the January 2019 SOC. CONCLUSION OF LAW A timely substantive appeal was filed as to the January 2019 SOC. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 19.30, 19.32, 19.52, 20.200. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1995 to August 1995, February 1997 to February 2001, and May 2001 to May 2013. The Board thanks him for his years of service. In January 2019, a VA Regional Office (RO) issued a SOC denying claims for an increased rating for right knee sprain, service connection for left knee arthritis, and a temporary total evaluation based on surgery necessitating at least one month of convalescence. In May 2020, the Veteran submitted a VA Form 9 (Substantive Appeal) appealing all issues listed in the January 2019 SOC; later in May 2020, the RO issued a letter determination refusing to accept the Veteran's Form 9 as having been timely filed to the January 2019 SOC. In response, the Veteran filed a May 2020 VA Form 10182 (Notice of Disagreement) appealing the letter decision to the Board of Veterans Appeals (Board) and requesting a hearing with a Veterans Law Judge (VLJ). The claim was therefore timely appealed under the modernized review system, also known as the Appeals Modernization Act (AMA). The Veteran underwent a hearing with the undersigned VLJ in June 2021. Under the AMA's hearing docket, the Board may consider all evidence that was part of the record at the time of the RO decision on appeal, and any evidence submitted within 90 days after the VLJ hearing. 38 C.F.R. § 20.302(a). The Board will therefore consider evidence submitted prior to May 14, 2020, and from June 28, 2021 to September 26, 2021. Timeliness of Appeal 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. § 20.104. A determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.104. An appeal under the legacy system consists of a timely filed Notice of Disagreement (NOD) in writing and, after the SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.20. A substantive appeal must be filed within 60 days from the date the Agency of Original Jurisdiction (AOJ) (in this case, the RO) mailed a claimant the SOC, or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. 38 C.F.R. § 19.22. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The date of mailing of the SOC will be presumed to be the same as the date of the SOC. See 38 U.S.C. § 7105; 38 C.F.R. § 19.52. However, the AOJ may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In addition, the filing of a timely substantive appeal, as opposed to a NOD, is not a jurisdictional bar to the Board's jurisdiction. The Board may waive the requirement of timeliness of a substantive appeal. The Board may also decline to exercise jurisdiction over an appeal if a substantive appeal was not timely filed. See Percy, 23 Vet. App. 37, 45. The Board also emphasizes the United States Court of Appeals for Veterans Claims (Court) has held that that there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." See Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). Likewise, there a presumption of regularity in the administrative process, where it is presumed that a claimant received proper notice by VA. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014). 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. For example, the presumption of regularity may be rebutted where there is evidence that (a) VA used an incorrect address on the mailing in question or (b) the mailing was returned as undeliverable and "there were other possible and plausible addresses available to VA" at the time. Id. at 72. The record shows that the January 2019 SOC was returned as undeliverable in February 2019. It was later established that the SOC had been sent to a former address of the Veteran, that he had informed VA of his new address, and that he had been receiving mail from VA at his new address for some time before the SOC was incorrectly mailed. (The January 2019 SOC is, in fact, the only piece of returned mail in the claims file.) In April 2019, the Veteran submitted a Form VA 21-4138 Statement in Support of Claim saying he had never received the SOC; he requested another copy, and stated that he wished to appeal all three of the contained claims to the Board. In May 2019 the RO sent the Veteran a letter informing him that he needed to complete the proper form to appeal his claims to the Board, but he was still not given the requested copy of the January 2019 SOC. An April 2019 VA 27-0820 Report of General Information states that a new copy of the SOC was sent to the Veteran after he called to request one, but the claims file contains no copies of a mailing including the January 2019 SOC after the initial failed attempt; at his June 2021 hearing, the Veteran confirmed that he never received a copy of the SOC even after requesting it in April 2019. After reviewing the evidence of record, the Board finds that the May 2020 Substantive Appeal should be accepted as a timely appeal to the January 2019 SOC. Not only is there clear evidence that the January 2019 SOC was not mailed to the Veteran's known current address in January 2019, and was subsequently returned to VA as undeliverablethere is clear evidence that VA never mailed the SOC again, despite requests by the Veteran both over the phone and in writing. The Veteran had still not been given a copy of the SOC when he finally filed his VA Form 9 (Substantive Appeal) in May 2020. The presumption of regularity has been soundly rebutted; the Veteran's May 2020 Substantive Appeal was timely filed, and the appeal is reinstated. 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.