Citation Nr: 21014177 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-12 423 DATE: March 11, 2021 ORDER The substantive appeal received on January 5, 2018, on the issue of entitlement to service connection for major depressive disorder was not timely; the appeal is denied. FINDING OF FACT The Veteran did not file a substantive appeal (Form 9) within 60 days of the issuance of the August 11, 2017 statement of the case (SOC). CONCLUSION OF LAW The substantive appeal received on January 5, 2018, was not timely filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.302, 20.303, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to August 1978. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 determination of the Department of Veterans Affairs (VA) Regional Office (RO) that the January 5, 2018 substantive appeal, Form 9, was untimely. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Timeliness of Appeal A review of the relevant law in this mater reflects as follows. Claimants will be afforded a period of 60 days from the date the SOC is mailed to file a formal appeal. 38 C.F.R. § 20.302(b). This may be extended for a reasonable period on request for good cause shown. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.303. A request for such an extension should be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. When a claimant fails to file a timely appeal and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, he or she is statutorily barred from appealing the decision of the agency of original jurisdiction (AOJ). Roy v. Brown, 5 Vet. App. 554, 556 (1993). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board concludes that the Veteran’s substantive appeal was untimely and that a waiver is not warranted. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(b), 20.303, 20.305. Here, the Veteran filed a claim for service connection for major depressive disorder in February 2016, which was denied in an April 2016 rating decision. The Veteran filed a timely notice of disagreement, which was received on January 31, 2017. A SOC, dated August 11, 2017, continued the denial for service connection. The Veteran’s Form 9 was received on January 5, 2018, well past the 60-day time period for response. VA received the Veteran’s substantive appeal after expiration of the 60-day period for filing a substantive appeal; the Veteran has not presented evidence that he attempted to file the substantive appeal prior to the expiration of the time period; and he has not otherwise provided good cause as to why a substantive appeal was not timely filed. The Veteran contends that the Form 9 was filed late because neither he nor his representative of record at the time received the August 2017 SOC. The Board rejects this argument. The August 2017 SOC was mailed to the Veteran’s correct address of record and copied his attorney of record at the time. Neither copy was returned as undeliverable, and it is therefore presumed to have been mailed to the Veteran and his representative. In this regard, the presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to the officials at the RO who were responsible for notifying the Veteran and his representative of record of the SOC in connection with his claim. See Woods v. Gober, 14 Vet. App. 214, 220–21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). Significantly, the Veteran may rebut the above presumption by submitting clear evidence to the effect that VA’s regular mailing practices were not followed in his case. In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process. Jones v. West, 12 Vet. App. 98, 102 (1998). The Board does not find that the presumption of regularity has been rebutted, as there is no clear evidence that VA’s regular mailing practices were not followed in this case. Specifically, the Board does not find the self-reports of nonreceipt to be clear evidence that the August 2017 SOC was incorrectly mailed. There is no evidence that the SOC was returned to the RO as undeliverable, or that the addresses were not correct on the mailings. The evidence of record contradicts the credibility of the Veteran’s statements that he moved prior to the issuance of the August 2017 SOC, as the December 2017 Form 21-22a notes the same address for the Veteran that the August 2017 SOC was mailed to. Additionally, the Veteran did not inform VA of any change in his address until January 2018. See January 2018 VA Form 572 Request for Change of Address. Similarly, the Veteran’s attorney’s statements asserting nonreceipt do not rebut the presumption of regularity as to the handling of the SOC by the RO and Post Office. As such, the Board finds that the August 2017 SOC was mailed to the correct address of the Veteran and his representative of record in August 2017. As such, the Veteran and his representative of record in August 2017 are presumed to have received the August 2017 SOC and the notice contained therein. Lastly, the Board acknowledges the submitted evidence purporting to show widespread irregularity with VA not mailing correspondence. However, as discussed above, there is no clear evidence to rebut the presumption of regularity that VA failed to properly discharge its duty. See Romero v. Tran, No. 19-3687 (Ct. Vet. App. Jan. 25, 2021).   The law is dispositive and requires that the Veteran must file a timely substantive appeal within 60 days of the date the SOC was mailed or request an extension with good cause. The Board is bound to the laws and regulations governing the appellate process. Moreover, the Board finds that a waiver of timeliness in the filing of a substantive appeal is not warranted in this case as the Veteran did not submit a written request for an extension of the 60-day mandatory period nor has he rebutted the presumption of regularity or provided good cause otherwise. The August 2017 SOC was properly mailed to the addresses on file and proper notification of the required 60-day response period was rendered. Accordingly, the Board finds that the substantive appeal received by VA on January 5, 2018 was not timely filed; the appeal is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.