Citation Nr: 21029808 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-08 207 DATE: May 17, 2021 ORDER The evidence shows that the Statement of the Case dated May 19, 2016 was not properly received by the Veteran's representative, the presumption of regularity with respect to the issuance of the Statement of the Case has been rebutted, and to that extent the appeal is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for a left ankle disability is remanded. Entitlement to an earlier effective date for an award of a 10 percent evaluation for a left ankle disability is remanded. Entitlement to a compensable evaluation for status post atrial fibrillation ablation is remanded. FINDING OF FACT The evidence of record indicates that the Statement of the Case dated May 19, 2016 was not properly received by the Veteran's representative. CONCLUSION OF LAW The presumption of regularity has been rebutted with respect to the mailing of the Statement of the Case dated May 19, 2016, and the SOC was not received by the Veteran's representative. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.300 to 20.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2005 to October 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the matter of whether a timely VA Form 9 was received with respect to claims denied in a May 22, 2015 rating decision was adjudicated by the Board, which found that the Form 9 was not timely. The Veteran appealed to the Court of Appeals for Veteran's claims, which in an August 2020 Memorandum Decision, vacated the Board's April 2019 decision, and returned the matter to the Board. In the instant decision, as explained below, the Board finds that a statement of the case, reflected in the record as having been issued by the RO in either April or May 2016, was never received by the Veteran and/or his representative, and as such, the presumption of regularity with respect to the RO's performance of its official duties has been rebutted. In other words, the Board finds that the RO never properly issued a statement of the case, and thus the timeliness of any subsequently submitted Form 9 is of no moment as there was no statement of the case received to appeal. The Board has thus recharacterized the issue on appeal above, and has taken limited jurisdiction over the underlying substantive claims for the sole purpose of remanding them to the RO for proper issuance of a statement of the case. 1. The appeal of whether a timely VA Form 9 was received with respect to the claims denied in a May 22, 2015 rating decision Per VA regulation and as applicable to this case, a substantive appeal consists of a properly completed VA Form 9 "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). VA enjoys a presumption of regularity with respect to its officials' performance of their duties, by which it is presumed that government officials have performed their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). The presumption may be rebutted by a showing of clear evidence to the effect that those duties were not followed in a given case. In this case, the Veteran has sought to show that the statement of the case issued pursuant to a June 2015 notice of disagreement for claims initially denied in a May 22, 2015 rating decision was not properly mailed to him and/or his representative. The Board finds that such a showing has been made, and thus, that the presumption of regularity has been rebutted. First, the record reflects a June 16, 2016 letter sent by the Veteran's attorney representative notifying the RO that a notice of disagreement had been submitted dated June 10, 2015, and that to date neither he nor the Veteran had received a SOC. This letter provides contemporaneous evidence that no SOC was received at the time it was purportedly mailed. Second, there remains confusion over the date on which the RO asserts it mailed the SOC to the Veteran and his representative. Whereas the SOC in the record is dated April 13, 2016, the RO, who bore the responsibility of send the SOC to the Veteran and his representative, indicated in its decision denying the timeliness of the Veteran's appeal that the SOC was mailed May 19, 2016. This contradiction casts an additional degree of doubt on the RO's proper performance of its duties with respect to issuance of the SOC in this case. Finally, as the Veteran's representative has pointed out, a SOC mailed to counsel is typically accompanied by a cover letter, whereas the claims file in this case has never contained a cover letter associated with the April 2016 SOC. This absence suggests the document was never mailed to the representative. Accordingly, the Board finds that sufficient evidence has been laid forth in this case to rebut the presumption of regularity with respect to the mailing of the April 2016 SOC. As a result, the Board finds that the SOC was never properly sent or received by the Veteran and/or his representative. Having found the SOC was never properly issued, the Board cannot find timely or not timely the subsequently submitted VA Form 9. Rather, as explained below, the RO is directed to furnish the Veteran and his representative with the SOC as it should have done in response to the Veteran's June 2015 NOD, and afford the Veteran the opportunity to perfect an appeal if he so chooses. REASONS FOR REMAND 1. The claims for entitlement to an evaluation in excess of 10 percent for a left ankle fracture, to an earlier effective date for an award of a 10 percent evaluation for a left ankle fracture, and to a compensable evaluation for status post atrial fibrillation ablation are remanded. Because the Board finds that the SOC was not properly mailed to the Veteran's representative, the Board shall accept limited jurisdiction over the underlying claims for increase for the sole purpose of remanding them for resolution. Manlincon v. West, 12 Vet. App. 238, 240-41 (1991). The AOJ must issue a SOC and ensure the same is mailed to both the attorney and his representative, and the Veteran must be provided with instructions on perfecting his appeal of these claims to the Board if he so chooses. The matters are REMANDED for the following action: 1. Furnish the Veteran and his representative with a statement of the case regarding the claims of entitlement to an evaluation in excess of 10 percent for a left ankle fracture, to an earlier effective date for an award of a 10 percent evaluation for a left ankle fracture, and to a compensable evaluation for status post atrial fibrillation ablation, as enumerated in the Veteran's June 10, 2015 notice of disagreement. Provide the Veteran and his representative with written instruction on perfecting his appeal to the Board. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.