Citation Nr: 22014158 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-00 109A DATE: March 11, 2022 ORDER The appeal as to whether a substantive appeal was timely received in response to a Statement of the Case (SOC) issued on August 16, 2017 is granted. FINDING OF FACT The evidence of record rebuts the presumption of regularity in the mailing of the August 16, 2017 SOC, and the November 6, 2017 substantive appeal should be considered to be timely filed. CONCLUSION OF LAW The criteria for a timely filed substantive appeal as to the August 16, 2017 Statement of the Case have been met. 38 U.S.C. §§ 5107; 7105; 38 C.F.R. §§ 3.102, 20.200, 20.202, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to April 1971. By way of history, this matter initially came before the Board on appeal from a December 2017 administrative decision by VA. In a May 2019 decision, the Board determined that the November 6, 2017 VA Form 9 was not filed in a timely manner. Following the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) issued a November 2020 decision vacating the Board's May 2019 decision and remanding the issue of whether the November 2017 VA Form 9 was filed in a timely manner for readjudication pursuant to the Court's determinations. Thereafter, VA submitted a December 2020 motion for reconsideration, which was granted in a January 2021 decision; however, that decision also vacated the Board's May 2019 decision, and remanded the matter back to the Board for readjudication. The Board is now taking action commensurate with the Court's findings in the January 2021 decision. The Board notes that the merits of the Veteran's claims that were addressed in the August 2017 statement of the case (SOC), the appeal of which is the subject of the present matter, are not presently before the Board. The only matter before the Board is whether that underlying appeal is still preserved as timely. By granting the Veteran's claim to accept correspondence received on November 6, 2017 as timely with regards to the SOC dated August 16, 2017, the Veteran's claim on appeal is granted in full. Timeliness of November 6, 2017 VA Form 9 The Veteran filed a claim on April 8, 2016 seeking the entitlement to a rating in excess of 70 percent for service-connected posttraumatic stress disorder, entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU), and service connection for a number of conditions that need not be listed out here. In an August 2016 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to each claimed issue. Following the Veteran's appeal, the AOJ promulgated a SOC dated August 16, 2017 confirming the denial of each claimed issue. The following chain of events form the basis of the present appeal. Copies of the August 16, 2017 SOC contained in the claims file appear to show that they were sent out for mailing and addressed to both the Veteran at her most recent address on file as well as to the Veteran's representative. According to the representative's affidavit, the copy addressed to the representative's office was never received, and so the Veteran's representative did not become aware of the issuance of the August 16, 2017 SOC until an employee of the firm reviewed the electronic claim file on November 2, 2017. Thereafter, on November 6, 2017, the Veteran's representative submitted a VA Form 9 appealing all issues in the August 2017 SOC. In a December 2017 administrative decision, the AOJ determined that the November 2017 VA Form 9 was untimely. Following the Veteran's appeal via submission of a notice of disagreement, the AOJ affirmed the determination that the VA Form 9 was untimely in a December 2017 SOC. The subsequent January 2018 Form 9 brought the matter of the timeliness of the November 2017 VA Form 9 before the Board, resulting in the procedural history outlined previously. To begin, the Board notes that an appeal consists of a timely filed Notice of Disagreement in writing and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. §20.200. A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the Statement of the Case (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends first). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The time to appeal a VA decision does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his or her appellate rights. See Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Moreover, the filing of a timely substantive appeal, as opposed to a Notice of Disagreement, is not a jurisdictional bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness about a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A "presumption of regularity 'supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926)); Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by "clear evidence" that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (holding that an appellant bears the burden of demonstrating error on appeal). Here, the Veteran through her representative contends that the presumption of regularity does not attach in this instance, and so it may not be presumed that the AOJ mailed the Veteran or her representative a copy of the August 16, 2017 SOC. Thus, it is argued that the deadline for submitted the substantive appeal of that August 2017 SOC did not begin tolling until the Veteran's representative became aware of the issuance of the SOC when an employee at the firm reviewed the electronic claim file on November 2, 2017. Accordingly, the contention is that the November 6, 2017 Form 9 was timely as it was submitted within 60 days of the constructive receipt of notice of the August 16, 2017 SOC. In support of the assertion that the presumption of regularity does not attach in this instance, the Veteran's representative has submitted numerous pieces of evidence tending to show that VA as an agency in aggregate was experiencing documented deficiencies in its ability to ensure that correspondence was being received by Veterans and their representatives at the time that the August 16, 2017 SOC was promulgated. Furthermore, the Veteran's representative submitted a May 2018 affidavit detailing multiples cases, to include this one, where correspondence was sent late or not sent at all, causing considerable delays for the clients of the Veteran's representative and in some examples resulting in the complete dismissal of a claim due to a late filing. It is not necessary to detail this voluminous evidence in support of the contention that the presumption of regularity has been rebutted in this case, as the Court in its January 2021 decision has already established that the presumption has been rebutted. Essentially, the Court determined that the non-specific evidence concerning widespread failures on the part of VA to timely send correspondence to Veterans, coupled with the credible account by the Veteran's representative concerning the non-receipt of a copy of the August 2017 SOC in this case as well as significant deficiencies experienced by the firm in separate cases for other veteran clients, was sufficient in this case to rebut the presumption of regularity. Typically, where the presumption of mailing has been rebutted, the burden of proof is on VA to show that the SOC was actually placed into the United States Postal Service system. See Rios v. Mansfield, 21 Vet. App. 481, 482-83 (2007). However, the Court in its January 2021 decision also made a finding that in light of the concession by VA in its brief on appeal before the Court that no evidence exists which could demonstrate actual mailing, VA has essentially already further conceded that it cannot prove actual mailing in this instance. Thus, the Board must conclude that a copy of the August 16, 2017 SOC was not mailed to the Veteran's representative, and thus the substantive appeal filed on November 6, 2017 should be treated as timely filed as to the SOC dated August 16, 2017. In summation, the appeal of the timeliness issue is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.