Citation Nr: 21009308 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-45 987 DATE: February 22, 2021 ORDER The appeal as to the timeliness of a February 14, 2017 notice of disagreement (NOD), appealing an August 2015 rating decision which denied a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), depressive disorder not otherwise specified, and alcohol abuse, is granted; the February 14, 2017 NOD was timely. REMANDED Entitlement to a disability rating in excess of 50 percent for PTSD, depressive disorder, anxious distress, and alcohol abuse is remanded. FINDING OF FACT The presumption that the Veteran and his attorney were timely mailed a copy of the August 2015 rating decision has been rebutted; a copy of the August 2015 decision was mailed to the Veteran’s attorney on December 13, 2016 and an NOD with the August 2015 decision was received on February 14, 2017. CONCLUSION OF LAW The criteria for the February 14, 2017 NOD to be considered timely have been met. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. § 19.20. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1967 to February 1969. These matters come before the Board of Veterans’ Appeals (Board) from a March 2017 decision, in which the agency of original jurisdiction (AOJ) determined that a timely NOD was not received following an August 2015 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge (VLJ) on his August 2017 substantive appeal (VA Form 9). He withdrew his Board hearing request in May 2020 (see a May 2020 statement from the Veteran’s representative). A February 14, 2017 NOD was timely received in response to an August 2015 rating decision which denied a disability rating in excess of 50 percent for PTSD, depressive disorder not otherwise specified, and alcohol abuse The Veteran and his attorney contend that a February 14, 2017 NOD should be considered timely filed because neither the Veteran nor his attorney received a copy of the August 2015 rating decision until December 2016. See Third Party Correspondence, received by VA in July 2020. Prior to the enactment of the Appeals Modernization Act (AMA) and as relevant to this appeal, appellate review is initiated by an NOD and completed by a substantive appeal filed after a statement of the case (SOC) has been furnished to an appellant. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 19.20. A question as to the timeliness or adequacy of the notice of disagreement shall be decided by the Board. 38 U.S.C. § 7105(b)(1)(C). The Board notes that the regulations relating to NODs were renumbered pursuant to the AMA. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307, 310 (1999). Generally, an allegation of non-receipt, by itself, is insufficient to rebut the presumption of regularity. Id. Rather, a claimant bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130 (2006). Once the presumption of regularity has been rebutted, the burden shifts to VA to show that regular mailing practices were followed in mailing the document in question in accordance with applicable laws and regulations, or that the claimant actually received the notice. Crain v. Principi, 17 Vet. App. 182, 186 (2003). A review of the relevant procedural history in this case shows that an August 14, 2015 rating decision denied a disability rating in excess of 50 percent for PTSD, depressive disorder not otherwise specified, and alcohol abuse. An August 17, 2015 notification letter informed the Veteran of this decision. The notification letter reflected that the Veteran’s attorney was provided a copy of the rating decision, but did not indicate the address to which the copy was sent. A November 5, 2015 letter from the Veteran’s attorney advised that during a telephone call to VA to discuss the status of the Veteran’s appeal, a VA representative verbally confirmed that a decision had been issued in the Veteran’s case. The Veteran’s attorney explained that his office had not yet received a copy of this decision and requested that VA forward a copy of the decision to his office immediately. The Veteran’s attorney then noted that should his office fail to timely receive a copy of the decision, good cause for any late filing of an appeal is warranted. A January 27, 2016 letter from the Veteran’s attorney requested the status of any and all of the Veteran’s pending disability benefits claims. A second January 27, 2016 letter from the Veteran’s attorney advised that in addition to his office not receiving a copy of any rating decision issued by VA for any and all of the Veteran’s pending disability benefits claims, the Veteran had also not received a copy of said rating decision. The Veteran’s attorney again requested that VA forward a copy of the decision to his office immediately. A February 1, 2016 letter from the Veteran’s attorney repeated the information provided in the January 27, 2016 letter. He advised that his office had not received a rating decision for any and all of the Veteran’s pending disability benefits claims. The Veteran’s attorney again requested that VA forward a copy of the decision to his office immediately. A July 1, 2016 letter from the Veteran’s attorney advised that per the Veteran, a recent online inquiry via the eBenefits portal revealed that a decision may have been issued in the Veteran’s case. The Veteran’s attorney explained that his office had not yet received a copy of the decision and requested that the decision be forwarded to his office immediately. In a letter to the Veteran’s attorney dated on December 13, 2016, the AOJ notified the Veteran’s attorney that it was providing him with a copy of a VA rating decision in response to his request dated in February 2016. On February 14, 2017, VA received a VA Form 21-0958, NOD, appealing the issue of entitlement to a disability rating in excess of 50 percent for PTSD, depressive disorder not otherwise specified, and alcohol abuse. In an attached letter, the Veteran’s attorney asserted that the NOD should be considered timely because neither he nor the Veteran received a copy of the August 2015 rating decision until December 28, 2016. A March 6, 2017 letter from VA notified the Veteran and his attorney that VA could not accept the NOD that was submitted on February 14, 2017 because the time limit to file an NOD had passed and that the August 17, 2015 rating decision was final. VA advised that the Veteran was notified of its decision on August 17, 2015 and that he had one year from that date to submit his NOD. VA explained that the Veteran’s NOD was not received until February 17, 2017, more than one year from the date on which he was notified of the rating decision. On April 3, 2017, VA received a VA Form 21-0958, NOD, appealing VA’s decision that the NOD filed on February 14, 2017 was not timely submitted. In an attached letter, the Veteran’s attorney contended that VA ignored the explanation of good cause for missing the deadline to file a timely appeal that he provided in his letter that was attached to the NOD filed on February 14, 2017. He reiterated that neither he nor the Veteran received a copy of the August 2015 rating decision until December 28, 2016, well after the prescribed period to file an appeal had expired. A July 2017 statement of the case (SOC) stated that the February 2017 NOD was not timely received. The SOC explained that notification as to the August 2015 rating decision was sent to the Veteran and his attorney on August 17, 2015. It noted that neither copy of the notification letter of August 17, 2015 was returned as undeliverable, nor was there any other administrative evidence suggesting an irregularity in the issuance of delivery of said correspondence. The SOC noted that the Veteran’s attorney requested copies of the August 2015 rating decision in November 2015 and January 2016, explaining that his office had not received a copy at that time. It further noted that an additional copy of the notification of decision letter from August 17, 2015 was provided to the Veteran’s attorney on December 12, 2016. However, the SOC stated that because the Veteran’s claims file indicates that both the Veteran and his attorney were notified of the rating decision concerning the Veteran’s claim for an increased rating for the service-connected psychiatric disability on August 17, 2015, the time they had to file an appeal expired on August 17, 2016. The SOC noted the Veteran’s attorney’s contention that neither he nor the Veteran received a copy of the August 17, 2015 notification letter until December 12, 2016, but dismissed this argument, noting that there was no evidence to suggest that the regular issuance of the notification letter of August 17, 2015 was not carried through. It further noted that the notification letter of August 17, 2015 sent to the Veteran was accurately addressed with an appropriate indication that a copy was also sent to the Veteran’s attorney. The SOC thus concluded that the presumption of regularity of the timely processing and delivery of notification of the decision at issue had not been rebutted by the Veteran and his attorney. In light of the above evidence, the Board finds, for the following reasons, that the presumption of regularity has been rebutted. Specifically, the August 17, 2015 notification letter did not include the address of the Veteran’s attorney. This alone does not rebut the presumption of regularity. However, there is another factor which casts doubt on whether the notice letter was in fact sent to the attorney. The attorney sent letters in November 2015, January 2016, February 2016, and July 2016 which were received within the one-year appeal period. In these letters, the attorney advised VA that both he and the Veteran had received verbal notification from VA representatives that a decision had been reached in the pending increased rating claim, but that neither the Veteran nor the attorney had received copies of said decision. In each of these letters he also requested that a copy of the rating decision be mailed to his office immediately so he that he could review it and file an appeal if he determined an appeal was necessary. In a July 2020 letter to the Board, the Veteran’s attorney contended that neither he nor the Veteran received a copy of the August 17, 2015 notification of the August 2015 rating decision until December 28, 2016, a date after the period to appeal the decision had expired. He also asserted that numerous attempts had been made to “spur” VA into providing a copy of the August 2015 rating decision within the one year period following the issuance of the decision, but that he and the Veteran were not provided a copy until after the period to appeal had ended. The Board finds these contentions reasonable, and while these contentions, alone, would not serve to rebut the presumption of regularity (there are reasons, such as professional negligence, which could account for a failure to timely submit an NOD), given the uncertainty of the address to which the notice letter was sent to the Veteran’s attorney, the Board finds that the combination of the requests for copies of the rating decision and the address uncertainty serve to rebut the presumption of regularity. Accordingly, as the Veteran and his attorney did not receive notice of the August 2015 rating decision until December 2016, the Board finds that the February 14, 2017 NOD was timely received in response to the August 2015 rating decision. For the foregoing reasons, and with any reasonable doubt resolved in favor of the Veteran, the Board finds that the February 14, 2017 NOD was timely. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a disability rating in excess of 50 percent for PTSD, depressive disorder, anxious distress, and alcohol abuse is remanded. In the August 2015 rating decision, the AOJ denied entitlement to a disability rating in excess of 50 percent for the Veteran’s service-connected psychiatric disability (characterized as PTSD, depressive disorder not otherwise specified, and alcohol abuse). As explained above, the Veteran submitted a timely NOD with the August 2015 decision in July 2017. An SOC has not yet been issued with respect to this matter. Thus, the issue of entitlement to an increased rating for PTSD, depressive disorder, anxious distress, and alcohol abuse must be remanded for the AOJ to issue an appropriate SOC. 38 C.F.R. § 19.24(b)(5). The matter is REMANDED for the following action: Send the Veteran and his representative a statement of the case for the issue of entitlement to a disability rating in excess of 50 percent for PTSD, depressive disorder, anxious distress, and alcohol abuse. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.