Citation Nr: 21031040 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 12-21 847 DATE: May 20, 2021 ORDER The appeal to accept the August 2018 notice of disagreement ("NOD") with the December 2016 rating decision as timely is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a right knee condition is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the record does not show that the December 2016 rating decision denying entitlement to service connection for right knee condition was mailed to the correct address of the Veteran's representative. CONCLUSION OF LAW The criteria to accept the August 2018 notice of disagreement ("NOD") with the December 2016 rating decision as timely have been met. 38 U.S.C. §§ 5107, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.103, 3.110, 3.160, 19.24, 19.34, 20.203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to September 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from December 2016 rating decision, and September 2018 administrative decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran testified before the undersigned Veterans Law Judge at a March 2015 videoconference hearing. A transcript of the hearing is associated with the record In February 2020, the Board remanded this matter for additional development and specifically directed the RO to issue a statement of the case in response to the timely filed NOD with the September 2018 administrative decision rejecting to accept the August 2018 NOD as timely. Consequently, the RO issued a statement of the case in August 2020, and the Veteran timely appealed the matter to the Board. The appeal to accept the August 2018 notice of disagreement ("NOD") with the December 2016 rating decision as timely. The Veteran submitted a claim seeking entitlement to service connection for right knee condition in September 2016. In a December 2016 rating decision, the RO denied entitlement to service connection for a right knee condition. The Veteran through his representative filed a notice of disagreement ("NOD") in August 2018, along with an affidavit from the representative affirming that the December 2016 rating decision was never received by his office and requested VA to accept the NOD as timely. The NOD was rejected by the RO being untimely in a September 2018 adjudicatory decision, which was timely appealed by the Veteran to the Board. The Board remanded the matter in February 2020 for RO to issue a statement of the case. The RO issued a statement of the case in August 2020 rejecting to accept the August 2018 NOD as timely, and the Veteran timely appealed the matter to the Board in September 2020. Under VA law, claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. See 38 C.F.R. § 3.103(b)(1), (f). A claimant or his or her representative must file a NOD with a determination of the RO within one year from the date that the RO mailed notice of the determination. See 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 20.203(b). The date of mailing of the letter of notification from the RO is presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. See 38 C.F.R. § 20.203(b). If an NOD is not filed within the one-year time period, the RO decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.160(d). The date of the letter of notification is considered to be the date of mailing for purposes of computing time limits. 38 C.F.R. § 3.110(b). A NOD postmarked prior to expiration of the one-year period is accepted as having been timely filed. 38 U.S.C. § 7105(b)(1). Questions as to timeliness or adequacy of the notice of disagreement is to be determined by the Board of Veterans' Appeals. 38 U.S.C. § 7105(b)(1)(C). Whether a NOD has been filed in a timely manner is an appealable issue. 38 C.F.R. §§ 19.24(d), 19.34. If the claimant or his or her representative protests an adverse determination made by the RO with respect to timely filing of the NOD, the claimant will be furnished a statement of the case on the issue of whether the NOD was timely. See 38 C.F.R. § 19.34. As noted above, the Veteran properly filed notice of disagreement with the adverse determination made by the RO with respect to timely filing of the August 2018 NOD, and the RO issued a statement of the case in August 2020, which was properly appealed by the Veteran in September 2020. Hence, the matter is properly before the Board for appellate adjudication. As far as mailing of a notice of a rating decision is concerned, the United States Court of Appeals for Veterans Claims has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the RO's mailing of notice of a VA medical examination. See Jones v. West, 12 Vet. App. 98, 100-02 (1998). However, in order for this presumption to attach, VA must provide notice to the latest address of record for the claimant. See Crain v. Principi, 17 Vet. App. 182, 186 (2003). This presumption is not absolute and may be rebutted with "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Id. In addition, according to VA regulation, notification for VA purposes is written notice sent to the claimant's latest address of record. 38 C.F.R. § 3.1(q). An appellant's bare statement of non-receipt of mail, without more, is not the type of "clear evidence" that can rebut the presumption of regularity. However, the presumption of regularity may be rebutted where there is (1) evidence that VA used an incorrect address on the mailing; or (2) evidence that the mailing was returned as undeliverable, and there were other possible and plausible addresses available to VA at the time of the decision. See Davis v. Principi, 17 Vet. App. 29, 37 (2003). If the presumption of regularity is rebutted by an appellant, the Secretary has the burden to show that the Board [or RO] decision was mailed in the appropriate manner "or that the appellant actually received a copy of the decision." See Sthele v. Principi, 19 Vet. App. 11, 19 (2004). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Veteran and his representative argues that the December 2016 rating decision denying service connection for right knee condition was not properly mailed to the representative's address. In September 2020 statement submitted with VA Form 9, Appeal to the Board, the Veteran's representative argued that the VA did not include the address of the attorney on December 2016 notification of rating decision and only included name of the Veteran's representative "cc Adam Neidenberg." The Veteran's representative also submitted an affidavit in August 2018 affirming that his office never received the December 2016 rating decision in mail and received knowledge of this rating decision upon review of the Veteran's file in Veterans Benefit Management System ("VBMS"). The review of the record shows that the December 2016 notification was sent to the representative, however, it is not clear to which address it was mailed because the notification only included the representative's name "cc Adam Neidenberg," but not the address. The Board notes that the Veteran appointed Adam Neidenberg as his attorney in October 2016. However, there were few correspondences that were sent by VA to the previous attorney even after October 2016 and December 2016. Also, there were other correspondences sent by VA to the attorney Adam Neidenberg, which were returned to VA due to incorrect zip code. In view of the foregoing, the Board concludes that there is reasonable doubt whether the notice of the December 2016 rating decision denying entitlement to service connection for right knee disability was mailed to the correct address of the Veteran's representative, or received by the representative via mail. Therefore, following a review of the evidence of record and after resolving reasonable doubt in the Veteran's favor, the appeal to accept the August 2018 NOD with the December 2016 rating decision as timely is granted. REASONS FOR REMAND 1. Entitlement to service connection for hepatitis C is remanded. This matter comes before the Board of Veterans' Appeals ("Board") by a January 2021 order of the United States Court of Appeals for Veterans Claims ("CAVC"), which granted a Joint Motion for Partial Remand ("JMPR") vacating and remanding a part of February 2020 Board's decision denying entitlement to service connection for hepatitis C. The issue initially arose from a June 2010 rating decision. In the January 2021 JMPR, the parties (the Veteran and the Secretary of VA) agreed that the Veteran's hepatitis C is inextricably intertwined with his posttraumatic stress disorder (PTSD) because in October 2015 VA examination, the examiner noted the Veteran's drug history is a known risk factor for hepatitis, and in an October 2017 opinion, a psychologist found that the Veteran's substance abuse was a form of self-medication for his psychological symptoms. The parties also agreed that the Board should have remanded the issue of entitlement to service connection for hepatitis C, when issue of entitlement to service connection for an acquired psychiatric disorder was remanded in February 2020 Board's decision. Additionally, the Board notes that in September 2020 rating decision, the RO granted service connection for unspecified trauma and stressor-related disorder with major depressive disorder, recurrent and alcohol use disorder in early remission with an effective date of December 10, 2009. This means alcohol use disorder has been etiologically linked to the service-connected psychological disorders and is considered service-connected for purposes of consideration of secondary service connection for any disabilities caused or aggravated by the alcohol abuse. Furthermore, in a February 2010 statement and during the March 2015 Board's hearing, the Veteran contended that he developed hepatitis C as a result of events during his active military service, specifically in-service air gun inoculations. Consequently, a remand is warranted to obtain a supplemental opinion on the nature and etiology of hepatitis C, to include as secondary to alcohol and substance abuse as claimed to be related to service-connected psychological disorders. 2. Entitlement to service connection for a right knee condition is remanded. As noted above, the Board has accepted the August 2018 NOD with December 2016 rating decision denying the service connection for right knee condition as timely. There is no statement of the case that has been issued on the merit of decision underlying the August 2018 NOD, therefore, a remand is warranted for the RO to issue a statement of the case on issue of entitlement to service connection for right knee condition. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38 C.F.R. § 20.200. The matters are REMANDED for the following action: 1. Obtain a supplemental medical opinion on the nature and etiology of the Veteran's hepatitis C. Further in-person examination of the Veteran is left to the discretion of the clinician providing the opinion. If the clinician deems a new examination is necessary for providing an opinion, then such an examination should be scheduled. The examiner should be provided with access to the claims file, including copies of this remand and the January 2021 CAVC order. 2. After reviewing the claims file, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not that hepatitis C had its onset during the Veteran's period of active service, or related to an in-service injury, event, or disease, including claimed in-service air gun inoculations. (b) Provide an opinion as to whether the Veteran's hepatitis C is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by the claimed alcohol or drug abuse as a self medication for controlling service-connected psychological disorders. In providing the above opinions, the examiner is advised to address the Veteran's contentions, private medical opinion and other evidence in the documents associated with the claims file, with entries dated: (i) 02/11/2010, titled "Statement In Support of Claim," which includes the Veteran's contentions that his hepatitis C was due to air gun inoculations that he received during active service; (ii) 03/11/2015, titled "Hearing Testimony," page numbers 20-22 that includes the Veteran's contentions regarding hepatitis C; (iii) 10/29/2015, titled "C&P Exam," which includes the examiner remarks that history of cocaine use is a risk factor for hepatitis C; (iv) 10/03/2017, titled "Statement In Support of Claim," which includes the Veteran's assertion that he began using drugs and alcohol to cope with his mental symptoms; (v) 10/13/2017, titled "Third Party Correspondence," page number 5 of 6, which includes an opinion from a psychologist stating that it is at least as likely as not that the Veteran's substance abuse was a form of self-medication for his psychological symptoms. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. (Continued on the next page) 3. Thereafter, readjudicate the issue of entitlement to service connection for hepatitis C. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. 4. Send a statement of the case that address the issue of entitlement to service connection for right knee condition. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.