Citation Nr: 21027455 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-39 013 DATE: May 5, 2021 ORDER Entitlement to an effective date earlier than February 23, 2010 for the award of service connection for hepatitis C is denied. REFERRED The Board recognizes the April 2020 brief submitted by the Veteran's representative, which suggests an award of an earlier effective date is warranted based upon clear and unmistakable evidence (CUE) in 1976, 2002, 2003, 2008, 2009 and 2010 VA decisions. These claims based upon CUE are separate and apart from the effective date issue before the Board at this time. The Board is unable to take jurisdiction of the Veteran's CUE claims as the Board is an appellate body with no authority to take original jurisdiction over an issue not adjudicated by the Regional Office (RO). Thus, the Board cannot review in the first instance the request for revision of an RO decision based on CUE. The issues of CUE in the RO decisions identified in the April 2020 brief are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Service connection was denied for Hepatitis A by way of an October 1976 decision letter based upon the Veteran's failure to report for a VA examination; a notice of disagreement (NOD) with that decision was not filed. 2. An August 2002 rating decision again denied service connection for Hepatitis A, after which the Veteran submitted a statement raising the claim for Hepatitis C, which was then denied by way of a February 2003 rating decision that was not appealed. 3. The Veteran filed a claim to reopen service connection for Hepatitis C in May 2008 and the claim was denied by way of an October 2008 rating decision; the Veteran filed an NOD with that decision, but did not file a substantive appeal after the November 2009 statement of the case. 4. The Veteran again filed a claim to reopen service connection for Hepatitis C on February 23, 2010. CONCLUSIONS OF LAW 1. The October 1976 rating decision denying service connection for Hepatitis A is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.153 (1976). 2. The August 2002, February 2003, and October 2008 rating decisions denying service connection for Hepatitis (A and C) are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2020). 3. The criteria for an effective date prior to February 23, 2010 for the award of service connection Hepatitis C are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claim for service connection for Hepatitis C was granted by way of a January 2016 rating decision, which awarded service connection, effective September 23, 2015. The Veteran perfected an appeal as to the effective date assigned. He contends service connection should be awarded as early as 1976, as he filed his original claim for service connection for Hepatitis in 1976 shortly after his separation from active service. In January 2020, the Board of Veterans Appeals (Board) issued a decision awarding an effective date of February 23, 2010. The Veteran appealed the Board's 2020 decision to the Court of Appeals for Veterans' Claims (Court). In November 2020, the Court signed an Order granting a Joint Motion for Partial Remand (joint motion). The joint motion did not disturb the February 23, 2010 effective date assigned, but vacated the Board's decision as to whether an effective date earlier than February 23, 2010 is warranted. That matter is the subject of this decision. The Veteran provided hearing testimony related to this effective date issue on two occasions, in March 2016 and in October 2019, before two different Veterans Law Judges. During the October 2019 hearing, the Veterans Law Judge presiding over that hearing explained the implications of a panel decision to the Veteran and informed him of his right to a third hearing before the third Veteran's Law Judge signing this decision. In November 2019, the Veteran submitted a written statement explicitly waiving his right to a hearing before a third judge prior to a final decision on appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran served in the United States Army between June 1974 and August 1976. In September 1976, the Veteran filed a claim for service connection for Hepatitis. This claim was denied in October 1976 by way of a letter. The RO informed the Veteran that there was no choice but to deny the claim because the Veteran did not report for a scheduled VA examination. This letter was sent to the Veteran at a post office box in [REDACTED], Mississippi. In November 1976, the Veteran responded indicating he was willing to report for an examination. He provided an updated mailing address at that time on [REDACTED] in [REDACTED], Mississippi. Internal memos in the claims file show the RO proceeded to reschedule the examination in November 1976. The Board recognizes that a copy of the notification letter to the Veteran is not within the claims file. However, the Board presumes the [REDACTED] address in [REDACTED], Mississippi is the address the RO used, as another letter in the file to the Veteran dated in October 1976 shows VA was using that address. Moreover, the Board observes that there is no evidence of any communication between VA and the Veteran being returned as undeliverable by the United States Postal Service. Further review of the record shows the Veteran was again using the post office box address previously used by July 1981. The joint motion shows the Veteran, by way of his representative, has argued that the presumption should not attach to VA mailing of notice of the scheduled 1976 VA examinations in this case such that finality should not attach to the October 1976 decision to deny the Veteran's claim. There is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308-309 (1992). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the AOJ level. The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary." Evidence of nonreceipt by either the Veteran or the Veteran's representative, standing alone, is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. However, where an appellant submits clear evidence to the effect that VA's "regular" mailing practices are not regular or that they were not followed, the Secretary is no longer entitled to the benefit of the presumption and the burden shifts to the Secretary to establish that the VA decision was mailed to the veteran and the veteran's representative, if any, as required by 38 U.S.C. § 7104(e). Ashley, 2 Vet. App. at 308-309. As mentioned, the joint motion points out the need for the Board to discuss the presumption of regularity in this case. The Veteran has not provided any specific reason or evidence to suggest VA did not properly discharge its official duties as it relates to notifying him of the VA examination in 1976. Moreover, the record shows the Veteran provided an updated address and VA was using that address in other correspondence at the time. The initial inquiry here is whether Veteran has produced clear evidence sufficient to rebut that VA did its duty. No such evidence is found within the claims file. At the October 2019 Board hearing, the Veteran suggested VA sent the notification to the incorrect address; however, no additional evidence has been received related to this matter. There has been no suggestion that VA did not follow its regular mailing practices or that its practices were not regular. See Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007); also see Ashley, 2 Vet. App. 307. The Board finds that the evidence is not sufficient in this matter to rebut the presumption of regularity. Therefore, the Board finds VA notified the Veteran of the decision in October 1976, then received his indication of a willingness to report for the examination, but the Veteran did not report for that rescheduled examination. The Veteran also did not file any statement indicating disagreement within one year of the October 1976 decision letter. The Board, therefore, finds the October 1976 decision became final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.153 (1976). In June 2001, VA received a claim to reopen service connection for Hepatitis. An August 2002 rating decision then denied service connection for Hepatitis A. In November 2002, VA received the Veteran's statement wherein he provided a more detailed account of his medical history and argued he should be service connected for hepatitis C. The RO then readjudicated the claim and issued a February 2003 rating decision denying the claim for service connection for hepatitis C. The Veteran was given notice the same month of his right to appeal. No appeal was filed, and both the August 2002 and February 2003 rating decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran again filed a claim to reopen service connection for Hepatitis C in May 2008. This claim was denied by way of an October 2008 rating decision. The Veteran did file a notice of disagreement with that decision in March 2009, after which the RO issued a November 2009 statement of the case. The Veteran, however, did not file a substantive appeal within sixty dates of the notice of the statement of the case; thus, this appeal was not perfected, and the October 2008 rating decision became final. Id. In February 2010, the Veteran filed a claim to reopen entitlement to service connection for Hepatitis C. The effective date currently assigned is February 23, 2010, the date of this claim. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Because the prior decisions in this case became final, the date for the establishment of service connection is appropriately set as February 23, 2010, the date of the claim to reopen. There is no basis for assigning an effective date earlier than February 23, 2010, as the decisions prior to the February 23, 2010 claim had all become final. Thus, an effective date prior to February 23, 2010 for the award of service connection for Hepatitis C is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.