Citation Nr: 21015634 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-06 508A DATE: March 18, 2021 ORDER A substantive appeal (VA Form 9) was timely filed as to a November 2009 Statement of the Case (SOC), such that reinstatement of the underlying appeal is granted. FINDING OF FACT In December 2009, within 60 days of the November 2009 SOC, the Veteran attempted to submit a timely substantive appeal; any failure of this form to reach VA in a timely manner is due to circumstances beyond the Veteran’s control. CONCLUSION OF LAW The criteria for timely filing a substantive appeal to a November 2009 SOC have been met. 38 U.S.C. §§ 5107, 7105; 38 C.F.R. §§ 3.102, 20.200, 20.202, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to December 1969, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal, Vietnam Service Medal, and two Overseas Service Bars. Sadly, the Veteran died in April 2019. The appellant has been recognized as a properly substituted claimant. See 38 U.S.C. § 5121A; see also July 2020 VA letter (granting the appellant’s request for substitution). This case engages a uniquely prolonged and complicated procedural history. Historically, an October 2006 rating decision awarded the Veteran special monthly compensation (SMC) benefits under 38 U.S.C. § 1114, subsections (k) and (l). In December 2006, the Veteran submitted a claim seeking a higher rate of SMC. The claim was denied in a November 2007 rating decision. The question before the Board is whether the Veteran perfected a substantive appeal to the November 2007 rating decision. During the pendency of this appeal, the Veteran was repeatedly afforded higher levels of SMC. Eventually, a December 2015 rating decision awarded the highest level of SMC (at the (r)(2) level), effective December 10, 2014. This decision effectively renders the question of whether a higher level of SMC is warranted after December 10, 2014, moot. See also January 2016 statements (containing Veteran’s acknowledgment that he is in receipt of the maximum SMC award, effective December 10, 2014); Sabonis v. Brown, 6 Vet. App. 426 (1994). As to the timeliness of the Veteran’s substantive appeal, this matter was first denied by the Board in October 2016. In December 2016, the Veteran submitted a Motion for Reconsideration to the Board. The Motion was denied in March 2017. See also April 2017 VA corrective letter. The Veteran then pursued this matter before the Court of Appeals for Veterans Claims (Court). In March 2018, the Court issued a Memorandum Decision which vacated the Board’s denial and remanded the matter for further review. The Board again denied this appeal in November 2018. In July 2020, the Court vacated this denial and remanded the matter for further review. It is upon this history that the matter is back before the Board. Timeliness of Substantive Appeal As set forth above, the appellant is pursuing a positive finding as to the timeliness of a VA Form 9. Historically, the Veteran’s claim for a higher rate of SMC was denied in the November 2007 rating decision. The Veteran submitted a timely Notice of Disagreement (NOD) in January 2008, and a Statement of the Case (SOC) was issued in November 2009. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. Of note, there is no dispute regarding the timeliness of the January 2008 NOD. Rather, the claims file contains a VA Form 9 signed by the Veteran and dated December 15, 2009. The accompanying date stamps reflects that the document was received by VA on February 17, 2010. To perfect an appeal to the Board, a substantive appeal must be submitted within 60 days of the date of mailing of the SOC or the remainder the one-year period from the date of mailing of notification of the determination being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). In March 2010, the Veteran was informed that his substantive appeal was untimely and could not be accepted. During his lifetime, the Veteran repeatedly and unequivocally represented that his substantive appeal was mailed to VA in December 2009. In part, he alleged that VA did not timely date stamp the item on the day it was received, such that the February 2010 stamp does not accurately reflect VA’s constructive receipt of the document. Under the presumption of regularity, it is presumed that government officials have properly discharged their official duties. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to Regional Office (RO) actions). However, this presumption may be rebutted upon “clear evidence” to the contrary. Id.; Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004). A claimant’s statement, standing alone, is insufficient to rebut the presumption of regularity in Agency of Original Jurisdiction (AOJ) operations. See Jones v. West, 12 Vet, App. 98, 100 (1998). The presumption of regularity attaches in this case. As such, it is presumed that the AOJ timely date stamped the Veteran’s substantive appeal when it was received. Accordingly, the February 17, 2010, date stamp accurately reflects the date on which the Veteran’s VA Form 9 was received by the AOJ. Notably, the claims file does not contain clear evidence to the contrary. In support of this appeal, the Veteran’s former representative provided an April 2010 statement representing that he “personally mailed” the Veteran’s VA Form 9 on December 16, 2009, one day after the Veteran’s execution of the document and well within the 60-day timeframe for its timely submission. That same month, an employee from the representative’s office confirmed that the form was mailed to VA on December 16, 2009. In May 2010, the Veteran provided his own lay statement confirming that he was well aware of the 60-day timeframe to submit his substantive appeal and ensured that an executed copy was provided to his representative on December 14, 2009. He further notes that his representative had filed “nearly all of [his] correspondence without any problems in the past,” and that he could not have been aware of any delay in VA’s receipt of this document because the AOJ did not typically acknowledge its receipt of documentation. That same month, the Veteran also resubmitted a copy of his VA Form 9 with a handwritten notation that the document was sent to VA on December 16, 2009. Collectively, these statements do not amount to clear evidence rebutting the presumption of regularity in this case. Jones, 12 Vet. App. at 100. Rather, these statements account for nothing more than the parties’ good faith belief that a properly executed VA Form 9 was mailed to VA on December 16, 2009. At no time do the parties allege any error by VA with any degree of specificity, let alone provide clear evidence of such. Instead, the claims file is entirely devoid of actual evidence speaking to a failure by VA to properly discharge of its duties in this case, such as an envelope or case record corroborating the mail or receipt date. See also Fithian v. Shinseki, 24 Vet. App. 146 (2010) (the Court determined that the sworn affidavit in which the Veteran states he mailed a motion to VA was not sufficiently clear evidence to rebut the presumption of regularity). In the absence of such clear evidence, the presumption of regularity attaches and it is presumed that the February 17, 2010, date stamp reflects the date the VA received the Veteran’s substantive appeal, more than 60 days after the issuance of the SOC. The Veteran separately contended that his VA Form 9 was delayed in its delivery by the USPS. The common law mailbox rule provides that if the evidence shows that a properly addressed letter has been placed in a mailbox or delivered to a postal employee, it is presumed to have reached its destination at the regular time and was received by the person to whom it was addressed. Rios v. Mansfield, 21 Vet. App. 481, 482 (2007) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)). Invoking this rule “requires proof of mailing, such as an independent proof of a postmark, a dated receipt, or evidence of mailing apart from a party’s own self-serving testimony.” Id. at 482-483. As noted in the Court’s July 2020 Memorandum Decision, a separate federal appellate court has held that an affidavit from the employee who mailed the document is sufficient to invoke the mailbox rule and its presumption of receipt. See July 2020 Memorandum Decision, p. 4, citing Godfrey v. United States, 997 F.2d 335, 338 (7th Cir. 1993). Here, the primary evidence of mailing in this case is the Veteran’s repeated but “self-serving” testimony. Precedent clearly establishes that such testimony is insufficient to stand as proof of mailing, particularly in this case, where the Veteran has asserted only that he delivered the executed form to his representative but not that he was personally responsible for (or witness to) its mailing. However, the claims file also contains two April 2010 correspondences which unequivocally represent that the Veteran’s representative mailed his substantive appeal to VA on December 16, 2009, including one such statement from the representative himself. In applying the precedent of the United States Court of Appeals for the Seventh Circuit, this statement (though not quite an affidavit for its lack of oath or affirmation) is sufficient to invoke the mailbox rule. In considering the case law against the unique facts of this case, and in interpreting the above in the light most favorable to the Veteran, it is found that the mailbox rule also applies. The Board’s findings thus far are not particularly beneficial for the appellant, as they contain an inherent contradiction: it is presumed that the purported December 2009 mailing reached its destination “at the regular time,” but also that VA timely date stamped the item upon its arrival in February 2010. Again, such a contradiction was noted in the Court’s Memorandum Decision, without any commentary or guidance as to how this might be rectified. In such an instance, the Board might typically defer to those laws and regulations which are directly pertinent to veterans’ appeals, as defined by VA. However, the contradiction here speaks to the Veteran’s belief that although his substantive appeal was timely mailed in December 2009, it was delayed in its delivery by the USPS. This argument compels consideration of the doctrine of equitable tolling. Generally, the deadline for filing a substantive appeal may be (1) extended for good cause if the claimant files a request in writing during the appeal period, 38 C.F.R. § 20.303; or (2) equitably tolled, Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Equitable tolling is justified in “extraordinary circumstances.” McCreary v. Nicholson, 19 Vet. App. 324 (2005). Three requirements must be met: (1) the extraordinary circumstance must be beyond the claimant’s control, (2) the claimant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the claimant must exercise “due diligence” in preserving his or her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id.; see also Checo v. Shinseki, 26 Vet. App. 130 (2013). The Board is hard-pressed to find that the mere act of placing a letter in the mail constitutes an “extraordinary circumstance,” but also notes that such action effectively leads to circumstances which are beyond the Veteran’s control (i.e., ensuring that the letter reaches its destination in a timely manner). There is also some evidence that the purported “extraordinary circumstances” led to the untimely filing of the Veteran’s VA Form 9, as the delay in delivery directly resulted in VA’s determination that the substantive appeal could not be accepted. As to the third and final element, it is readily apparent that the Veteran exercised due diligence during his lifetime to preserve his appellate rights in this case, as he perfected a timely appeal as to the instant matter and routinely submitted positive evidence on his behalf, including multiple copies of the VA Form 9 at issue and lay statements regarding its submission. In weighing the totality of the circumstances and considering all legal doctrines which are relevant to this appeal, the Board concludes that the Veteran likely submitted his VA Form 9 to his representative in December 2009; that his representative mailed this document to VA on December 16, 2009; that this letter was somehow delayed in its delivery to VA; and that the substantive appeal was not received by VA until February 17, 2010. The circumstances which led to the untimely submission were far beyond the Veteran’s control, who the undertook all reasonable efforts to preserve his appellate rights immediately upon his understanding that the VA Form 9 was not timely received. Thus, the delayed submission was not due to the Veteran, who engaged all reasonable efforts to comply with his legal obligations in this case. [CONTINUED ON NEXT PAGE] Upon the above, the Board finds sufficient cause to accept the Veteran’s substantive appeal in this limited instance, as any delay in its receipt by VA was reasonably due to outside error. Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). As such, reinstatement of the underlying appeal is granted. The case will be returned to the Agency of Original Jurisdiction for further processing consistent with the Board’s order, such that any discussion of the merits of the underlying issue is premature. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.