Citation Nr: 21039865 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-48 672 DATE: July 1, 2021 ORDER An effective date of June 8, 2016 for the award of nonservice-connected pension is granted. FINDINGS OF FACT 1. On June 8, 2016, VA received from the Veteran an intent to file a claim for pension. 2. A formal claim for pension was received by VA on June 5, 2017. CONCLUSION OF LAW The criteria for an effective date of June 8, 2016 for the award of nonservice-connected pension have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty December 1974 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision from the Regional Office (RO), which granted nonservice-connected pension (effective June 5, 2017). In December 2020, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Earlier Effective Date for Nonservice-Connected Pension is Granted. The effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA 38 C.F.R. § 3.1(r). The Veteran contends that an award of nonservice-connected pension is warranted from June 8, 2016, the date VA received her Intent to File. The Veteran asserts that VA received an Intent to File a claim for pension on June 8, 2016, but the actual intent to file was not associated with the VA claim file; that VA sent a letter that acknowledged receipt of the June 2016 Intent to File on June 8, 2016; and that the letter was sent to an incorrect address. For these reasons, the Veteran did not have an opportunity to notify VA that the Intent to File was for pension, not compensation. The Veteran asserts that a formal claim for nonservice-connected pension was received by VA on June 5, 2017, within one year of the June 2016 Intent to File. The Veteran asserts that her representative's business records also show that the June 2016 Intent to File was an informal claim for pension, not compensation, and, therefore, retroactive benefits are warranted from the date VA received the June 2016 Intent to File. See December 2020 Board Hearing Transcript. While there is a presumption of administrative regularity which holds that government officials are presumed to have properly discharged their official duties (see Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992)), such presumption can be rebutted by clear evidence to the contrary. A veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA's regular mailing practices were not followed in his case. Crain v. Principi, 17 Vet. App. 182, 188 (2003). Such evidence includes "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Boyd v. McDonald, 27 Vet. App. 63, 71-72; see also Romero v. Wilkie, 33 Vet. App. 84, at 96 (2020). 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, 103 (1998); see id. The presumption of regularity, however, may be rebutted where there is evidence that (1) VA used an incorrect address on the mailing in question or (2) the mailing was returned as undeliverable and "there were other possible and plausible addresses available to VA" at the time. Boyd, 27 Vet. App. at 72. In this case, the Board concludes that there is clear evidence that the Veteran filed an Intent to File a claim for pension in June 2016 that is sufficient to rebut the presumption of regularity that the June 2017 formal claim submission was the earliest claim for nonservice-connected pension. The first indicia that the Veteran filed an Intent to File a claim for pension in June 2016 is the June 2016 VA correspondence, on which VA acknowledged receipt of an Intent to File on June 8, 2016, though the correspondence indicates that the Intent to File was for compensation, not pension. Notably, while the June 2016 letter from VA acknowledging receipt of the June 2016 Intent to File is noted in the claim file, the corresponding Intent to File form that VA received in June 2016 is not associated with the claim file, which suggest that VA's practices in handling its mail was not regular at the time. The Veteran testified that she never received the June 2016 correspondence from VA acknowledging receipt of the June 2016 Intent to File, so had no notice that VA had miscoded the Intent to File as a claim for compensation instead of pension. The Veteran's contention is supported by the record, which shows that VA correspondence dated June 8, 2016 acknowledging receipt of the June 2016 Intent to File was returned as undeliverable. The June 2016 VA correspondence shows that the letter was incorrectly addressed, as the Veteran's complete address was not included on the letter. The record shows that VA had access to the Veteran's correct address, which was reflected on the VA Form 21-22 submitted June 6, 2016. Moreover, VA included the Veteran's correct address on a letter dated July 22, 2016 that notified that the June 2016 acknowledgement letter was returned as undeliverable. The July 2016 VA letter was not returned as undeliverable, which is further evidence that VA had access to the Veteran's correct address at the time that June 2016 acknowledgement letter was sent. In addition, the representative has submitted a screenshot of its business records from March 2018 and April 2019, which shows that a record entry was created in Vetrospec, in the normal course of business, that documented the progress of the claim. Specifically, the business record shows that an Intent to File was submitted to the state on June 3, 2016, the state filed the Intent to File on June 6, 2016, and VA confirmed receipt of the Intent to File on June 8, 2016, to include a notation of the individual at the Claim Office who confirmed receipt of the Intent to File with a note that the submission was an "Intent to File an informal claim for pension." Additionally, the Veteran also submitted a copy of the June 2016 Intent to File in March 2018, which shows that the Intent to File was for pension, and it was signed by the Veteran on June 2, 2016, the date before the Intent to File was submitted to the state representative on June 3, 2016. The representative's business record also shows that VA received a formal claim for nonservice-connected pension on June 5, 2017, which is reflected in the claims file. Such evidence raises a probability that the Veteran did submit an Intent to File for pension in June 2016, which VA miscoded as a claim for compensation. In this case, while the June 2016 "cc" to the June 2016 VA correspondence indicates that a copy of the June 2016 letter was sent to the representative indicating that VA coded the Intent to File as a claim for compensation, the Board cannot say whether the envelope containing a copy of the June 2016 VA correspondence was sent to the representative. This is especially true in light of the testimony showing the representative's regular business practices in handling and filing VA claims electronically with VA. A recent decision of the United States Court of Appeals for Veterans Claims (Court), Romero v. Wilkie, 33 Vet. App. 84 (2020), recognized the similar use of a veteran representative's regular business practices as evidence sufficient to show irregularity in VA mailing practices. On review of all evidence, both lay and medical, the Board finds that an earlier effective date for nonservice-connected pension to June 8, 2016 is warranted. Specifically, the Board finds that there is clear indicia of irregularity to overcome the presumption of regularity in the administrative process in this situation, under the specific facts of this case. As noted above, a screen shot of the representative's business records, which were created in the normal course of business, reflect an entry confirming that VA received the Intent to File on July 8, 2016, and specifically reflect a note that the submission was an Intent to File an informal claim for pension. In addition, the Veteran submitted a copy of an Intent to File a claim for pension which was signed and dated June 2, 2016, and VA acknowledged receipt of an Intent to File on June 8, 2016 while failing to associate the actual Intent to File form with the claims file. The June 2016 VA letter that could have put the Veteran on notice that VA miscoded the Intent to File as an informal claim for compensation instead of pension was incorrectly addressed and returned as undeliverable despite the fact that VA had access to the Veteran's correct address at the time. The Veteran has consistently stated that the June 2016 Intent to File was an informal claim for pension. The contention is further strengthened by the representative's business records showing the June 2016 Intent to File was for pension, the copy of an Intent to File for pension dated June 2, 2016, and the submission of a formal claim for nonservice-connected pension on June 5, 2017, within one year of the June 2016 Intent to File. The Veteran is consistent and credible in reports that she filed an Intent to File a claim for pension earlier than June 2017, and that she submitted an Intent to File for pension to her representative in June 2016. The other evidence shows indicia that supports the assertion that the Veteran submitted an Intent to File for pension to the RO in June 2016 that, for whatever reason, did not get recognized as an informal claim for pension. Based on the foregoing, the Board finds that the presumption of regularity in the administrative process with regard to taking action on the Veteran's June 2016 Intent to File for pension is rebutted by clear evidence to the contrary; therefore, an effective date of June 8, 2016, for the grant of nonservice-connected pension will be assigned. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.