Citation Nr: 21022893 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-18 745 DATE: April 19, 2021 ORDER The appeal of whether a substantive appeal was timely filed in response to an October 2018 Statement of the Case is denied. FINDINGS OF FACT The Veteran did not file a substantive appeal within 60 days of the date on which the October 2018 statement of the case was sent to the Veteran. The Veteran did not submit a request for an extension of the time limit for filing a substantive appeal prior to the expiration of the time limit for filing the substantive appeal. CONCLUSION OF LAW A timely substantive appeal was not filed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302(b), 20.303, 20.305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from January 2002 to January 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 administrative decision by a Department of Veterans Affairs (VA) Regional Office (RO). This decision denied the Veteran’s appeal based upon receipt of an untimely Form 9. Whether the Veteran filed a timely VA Form 9. The Veteran contends that she filed a timely VA Form 9 for her claims for service connection for hearing loss and bilateral feet disabilities. Alternatively, the Veteran’s representative contends that he did not received the October 2018 SOC because the representative’s address was not contained on the cc line of the SOC. Timeliness of Appeal Claimants will be afforded a period of sixty days from the date the SOC is mailed to file a formal appeal. 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 (emphasis added). 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. Roy v. Brown, 5 Vet. App. 554, 556 (1993). Furthermore, there is no indication that the AOJ waived objection to the untimeliness of the Veteran’s substantive appeal, as the AOJ sent a letter in January 2019 to the Veteran explaining its determination that the substantive appeal was not timely and informing her that she could appeal the decision. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). The Agency of Original Jurisdiction (AOJ) sent the Veteran a statement of the case (SOC) on October 23, 2018. The AOJ then received a substantive appeal from the Veteran on January 17, 2019. A decision was then issued to the Veteran on January 30, 2019, stating that her substantive appeal was untimely. In an August 2020 Appellate Brief, the Veteran’s representative has asserted that he attempted to file the substantive appeal prior to the expiration of the time period. Specifically, he has asserted that he filed a timely Form 9, which did not appear in VBMS, and he later “re-faxed” the Form 9. Alternatively, the representative asserts that he did not receive the SOC due to the fact that the SOC did not contain his mailing address in the cc line. The Board finds these assertions to be incompatible. On one hand, the representative asserts that he sent a timely Form 9, presumably upon receipt of the SOC, and it did not appear in VBMS, which suggests that he was aware of the SOC. However, he also asserts that he did not receive the SOC, which would not explain the earlier assertion of a timely Form 9, since he would not have been aware of the issuance of the October 2018 SOC. Despite the contentions that notifications regarding VA’s receipt of documentation was never received, the RO mailed a copy of the SOC to the Veteran’s addresses of record of the Veteran and her 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 issuing the October 23, 2018 SOC to the appellant. See Woods v. Gober, 14 Vet. App. 214, 22021 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). Significantly, the appellant may rebut the above presumption by submitting clear evidence to the effect that VA’s regular mailing practices were not followed in this case. In this regard, 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). Conversely, clear evidence sufficient to rebut the presumption of regularity has been found when VA addressed communications to a wrong street name, wrong street number, or wrong zip code in circumstances indicating that such errors were consequential to delivery. See, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993). If the appellant succeeds in rebutting the presumption of regularity, the burden then shifts to VA to establish that regular administrative practices were, in fact, observed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (the presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary). Beyond the contentions of the Veteran’s representative that the SOC was not sent to his address due to the absence of his address on the cc line of the SOC, there is no evidence showing that VA’s regular mailing practices were not followed. Furthermore, there is no documentation or indication that the October 2018 SOC was returned as undeliverable. Additionally, the representative has not submitted evidence that the original Form 9 was sent via facsimile, or that such document was received by VA. (Continued on the next page)   The October 2018 SOC was mailed to the addresses of record for the Veteran and her representatives that VA used for all other correspondence, none of which has been returned as undeliverable. Consequently, the Board finds that the presumption of regularity has not been rebutted. Jones v. West, 12 Vet. App. 98, 102 (1998). As such, the appellant is presumed to have received the October 2018 SOC and the notice contained therein. Therefore, a waiver of timeliness in the filing of a substantive appeal is not warranted in this case. The appellant’s substantive appeal received by VA in January 2019 was not timely filed; the appeal is denied. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.