Citation Nr: 21014121 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-14 552 DATE: March 11, 2021 ORDER The claim of filing a timely notice of disagreement with a March 12, 2014, determination is denied. FINDINGS OF FACT 1. On March 12, 2014, the RO notified the appellant that her claim for Department of Veterans Affairs (VA) benefits had been denied. 2. The weight of evidence is against a finding the appellant filed a timely notice of disagreement with that denial within one year of the March 12, 2014, determination. CONCLUSION OF LAW The criteria for filing a timely notice of disagreement with the March 12, 2014. determination have not been met. 38 U.S.C. §§ 5107, 7105 (2012); 38 C.F.R. § 20.203 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1984 to May 2004. The Veteran died in April 2009. The appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 determination of a VA Regional Offices (RO). In January 2021, the appellant testified at a virtual hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic claims file. 1. Whether a notice of disagreement was timely filed with a March 2014 determination Governing law and regulations For cases adjudicated prior to the effective date in February 2019 of the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), appellate review of a RO decision is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200 (2018). A claimant must file a properly completed notice of disagreement with a decision of an agency of original jurisdiction (AOJ) within one year from the date the agency mails the notice of the decision. The date of mailing the letter of notification of the decision will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.203. There is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” See United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15, 47 S. Ct. 1 (1926). In Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992), the United States Court of Appeals for Veterans Claims (the Court) found that the presumption of regularity applied to VA. The Court found that there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. The presumption is not absolute; it may be rebutted by the submission of clear evidence to the contrary. Once clear evidence is submitted, VA is no longer entitled to the benefit of the presumption and the burden shifts to VA to establish that a government official properly discharged his or her official duties. Analysis On March 12, 2014, the RO notified the appellant that her claim for VA benefits had been denied. On August 14, 2015, the RO received the appellant’s notice of disagreement with the March 12, 2014, denial. The notice of disagreement is dated March 20, 2014. In September 2015, the RO determined that the notice of disagreement received in August 2015 was untimely. The appellant perfected an appeal of that denial. In a September 2015 statement, the appellant asserted that she mailed the March 20, 2014, to the RO and to her attorney on March 22, 2014. She added that a VA operator told her that she saw the notice of disagreement in the system. At the January 2021 hearing, the appellant testified that in March 2014 she gave the notice of disagreement to a VA employee who worked at a military base. Hearing transcript, pages 7-11. There is no evidence in the electronic claims file that the RO received a notice of disagreement that was mailed on March 22, 2014, as the appellant asserts. While the appellant has stated that she gave the notice of disagreement to her attorney, she indicated in a February 2016 statement that no attorney returned her call, which suggests that she did not an attorney representing her. In any event, there is no evidence in the electronic claims file that an attorney submitted the notice of disagreement to VA on her behalf. In a July 16, 2015, letter, the RO noted that the appellant submitted an inquiry on June 17, 2015. Given that the appellant claims she spoke to a VA operator about her notice of disagreement, it appears that the appellant spoke to a VA employee on June 17, 2015. Although the appellant asserts that a VA operator told her that there was a notice of disagreement in the system, there is no evidence in the electronic claims file that a notice of disagreement was of record on June 17, 2015. In fact, the July 16, 2015, letter states that VA had not received a notice of disagreement from the appellant. As to the appellant’s testimony that she gave her notice of disagreement to a VA employee in March 2014 who failed to forward the document to a RO, there is a presumption of regularity that if the appellant had given her notice of disagreement to a VA employee who worked at a military base, that employee would have forwarded the document to the AOJ. The appellant’s assertion alone is not clear evidence that a timely notice of disagreement was filed with a VA employee who failed to forward the document to the AOJ. In short, the Board places great weight on the absence of evidence in the electronic claims file of a notice of disagreement filed prior to August 2015. The weight of evidence is against a finding the appellant filed a timely notice of disagreement with that denial within one year of the March 12, 2014, determination. Therefore, the preponderance of the evidence is against the claim, and it is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.