Citation Nr: 22015183 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-12 423 DATE: March 16, 2022 ORDER The substantive appeal received on January 5, 2018, was untimely, and the appeal for service connection for an acquired psychiatric disability is denied. FINDING OF FACT The Veteran did not timely file a substantive appeal to the August 2017 statement of the case, and has not provided good cause for an extension of time. CONCLUSION OF LAW The January 5, 2018, substantive appeal was not timely received. 38 U.S.C. § 7105(a); 38 C.F.R. § 19.52(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to August 1978. This appeal is from a February 2018 decision that found the Veteran did not timely file a VA form 9 substantive appeal in response to the August 2017 statement of the case (SOC). In January 2021, the Veteran had a personal hearing with the undersigned VLJ on this issue. Since then, the Board denied this appeal in a March 2021 decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims, which granted a Joint Motion for Remand (JMR) that was filed by the parties requesting the matter be sent back to the Board for additional consideration, as discussed in more detail below. The Board notes that, since his case was remanded back to the Board, the Veteran terminated his attorney representative in favor of a Veterans Service Organization (VSO), which has filed a brief on the Veteran's behalf, in February 2022. Also, in February 2022, the Veteran reported that he had no more evidence to provide in support of his case and waived any remaining time to file more. 1. The substantive appeal received on January 5, 2018, was untimely, and the appeal for service connection for an acquired psychiatric disability is denied. Except in cases of simultaneously contested claims, a substantive appeal must be filed within 60 days from the date on which the AOJ (agency of original jurisdiction) mails a SOC to the appellant or within the 1-year period beginning on the date on which the AOJ mailed the notice of the decision being appealed, whichever is later. 38 C.F.R. § 19.52(b). The time in which an appellant must file the substantive appeal may be extended for a reasonable period and upon good cause shown. 38 C.F.R. § 19.53. The AOJ may close the case for failure to respond after receiving a SOC, but questions of the timeliness and adequacy of the substantive appeal are determined by the Board. 38 U.S.C. § 7105(d)(3). There is a "presumption of regularity" that states that VA and other government officials perform 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 with clear evidence that VA's regular mailing practices were not followed in a particular case. In this regard, the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). 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, 102 (1998). Here, the record shows that the SOC was dated August 11, 2017, and addressed to the Veteran's then-address of record. At the end of the notification letter, his then-attorney of record was noted to be receiving a copy, and the address of his office was listed. The date of mailing of the SOC will be presumed to be the same as the date of SOC and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 19.52(b)(1). Thus, the presumption of regularity attaches, and the officials at the AOJ are presumed to have sent the SOC on the date in the letter. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). If the SOC was sent on August 11, 2017, then the substantive appeal must have been received on or before October 10, 2017. Here, it was received January 5, 2018. The substantive appeal was not timely filed. The Veteran's then-attorney acknowledged the substantive appeal was late, but asked that an extension be granted. He argued that the SOC was not received by his office. He indicated that neither he nor the Veteran's previous attorney, who worked at the same office, had any record of receiving the SOC, and that there was no indication from their records that the Veteran had called them to follow up on how to respond to the SOC. The AOJ denied this request and found the substantive appeal untimely in a February 2018 letter. This appeal followed. The Veteran's argument is that he has rebutted the presumption of regularity. As mentioned, the Board denied this appeal in March 2021, but that decision was vacated pursuant to the October 2021 JMR. The JMR indicated that the Board did not adequately discuss whether clear evidence had been presented that showed that one should not presume that the VA did its duty to mail the SOC, pursuant to Romero v. Tran, 33 Vet. App. 252, 258-62 (2021). The JMR also found that the Board did not adequately address the reasons and bases for finding the Veteran's statements that he moved prior to the issuance of the August 2017 SOC lacked credibility. The JMR indicated the Board must discuss an October 2017 VA form 21-22a showing his new address, as well as a temporary change of address noted in July 2017 VA treatment records. Finally, the JMR noted the Board failed to adequately discuss why the Veteran's and the attorney's statements of nonreceipt coupled with the other proffered evidence did not establish clear evidence of irregularity. After review of the evidence, which the Board will go through in turn, the Board does not find that the presumption of regularity has been rebutted by clear evidence, or that the Veteran moved prior to the August 2017 SOC. The Board observes that no mail has been returned as undeliverable. The record contains a GAO (U.S. Government Accountability Office) cover sheet from a September 2017 hearing pertaining to VA, entitled "Management and Oversight of Mail Operations Could be Improved." This is the extent of the report provided. This title page does not indicate that there were mailing irregularities at the AOJ that issued the SOC. The Board has fully and carefully reviewed the evidence contained in this document. The Board has also fully and carefully reviewed the evidence contained in a February 2018 affidavit from D.B.R., the executive director of the National Organization of Veterans' Advocates, Inc (NOVA). The Board does not find that this is clear evidence that the SOC in this case was not mailed properly. These are general findings and do not directly relate to this case or to the AOJ that mailed this SOC. The Board notes that, during the Veteran's personal hearing in January 2021, the Veteran's then-attorney appeared to ask whether judicial notice could be taken of the "2017 GAO report." He did not specify which GAO report he was referring to, or present additional argument as to why judicial notice should be taken. He is no longer the representative, and no further argument has been received regarding any GAO report from the Veteran or his current representative. The Board notes that neither the August 2017 nor September 2017 GAO evidence has been supplemented in the record, and consists of a cover page and a reference in an affidavit, respectively. There has been no indication of any specific portions of those reports that the Veteran wishes the Board to rely on or to consider, nor any assertion that these reports specifically discuss any mailing irregularities at the AOJ that issued the August 2017 SOC. Accordingly, judicial notice is not taken of the substance of those reports, and they are not in the record. The Board finds that the Veteran had sufficient opportunity to submit relevant evidence on this argument, but has not submitted the referenced evidence. As mentioned above, the Veteran indicated he had submitted all the evidence he had in relation to this appeal. Next, the record contains an April 2018 VA news release indicating "VA Takes Significant Step in Improving Correspondence with Veterans." The Board does not find that this evidence demonstrates any problems with the previous mailing system, but rather demonstrates that an updated system was created to improve that which had already been in place. The Board will next review the testimony and statement evidence. The record contains statements of nonreceipt from both the Veteran and his then-attorney. As mentioned, the Veteran changed attorneys around the time of the August 2017 SOC, but they were at the same office, and, in any event, the more recent attorney reported that neither he nor the preceding attorney received a copy. In the untimely January 2018 VA form 9 and the February 2018 NOD (notice of disagreement), the attorney indicated there was a lack of notation in his records, which shows his office did not receive it. He indicated that the Veteran had been active in his case, and lack of notation of communication from the Veteran meant that he also did not receive anything. The Board notes these assertions but has no further knowledge of the business practices of the Veteran's former attorney, and cannot put any weight on his assertions regarding the reliability of the records kept by his office. Nothing further was submitted in support of this argument, and this evidence does not show that VA failed to mail the SOC. In an August 2018 statement, the Veteran's attorney argued that the evidence "tends to show that the VA did not provide timely notice of the SOC in the first instance," and that the presumption of regularity had been rebutted. He cited the September 2017 GAO report, which he argued "clearly detailed the failing of the VA in its mailing operations," and that VA created the CBCM based on the GAO report. As discussed above, it is unclear what the September 2017 report discusses in detail as there is no copy of record, but the title suggests possible improvements in mailing practices. The fact that the GAO found that improvements could be made system-wide does not demonstrate there were mailing irregularities at the AOJ that issued the August 2017 SOC. During his January 2021 hearing, the attorney argued that the facts of the Veteran's case were similar to those in the case of Romero v. Tran, 33 Vet. App. 252 (2021), which held that statements of nonreceipt coupled with other evidence can rebut the presumption of regularity, and that the "other evidence" can include evidence that VA's regular mailing practices are not regular or were not followed. In that case, the Veteran and his attorney both averred that they had not received copies of the SOC, and provided a copy of the August 2017 GAO report, as well as an affidavit from the attorney and a copy of the D.B.R. affidavit, all of which the Board found to be "substantial evidence" that showed a "widespread problem with VA not mailing correspondence." The Court noted that it was not holding that there were widespread problems with VA's mailing practices; rather, it was that the Board's finding that the evidence was "substantial" was more than sufficient to rebut the presumption of regularity. Here, the Court cited to specific evidence and prior findings of the Board. Regarding this appeal, the Board finds that the facts are different and, as noted, the Court has not stated that the presumption of regularity is rebutted generally on these findings of the GAO. Instead, the Board reads the relevant case law as providing that analysis remains on the specific evidence of an appeal; the Board has completed a thorough review of the evidence and finds the presumption is not rebutted. The other evidence that has been submitted does not provide any details of mailing irregularities at the AOJ that issued the August 2017 SOC. The Board does not find that the provided evidence coupled with the statements of nonreceipt are sufficient to rebut the presumption of regularity in this case. Finally, at his personal hearing, the attorney suggested that the Veteran may have moved prior to the issuance of the August 2017 SOC, although he has not ever made that statement. Indeed, during the hearing, he reported that he moved in June 2018. He was asked whether he ever lived at the address that was on the SOC, and he responded he had but lived in a different state now. He confirmed that he was living at the first address when the SOC was sent in August 2017, but that he did not get the decision. Given his statements regarding when he moved and the fact that he has not ever reported moving prior to the issuance of the August 2017 SOC, the Board does not find these statements credible that he moved prior to that. The JMR indicated that specific evidence must be discussed in regard to whether the Veteran moved prior to August 2017. The first is that the Veteran filed a VA from 21-22a in January 2018, but it was dated in October 2017, and it contains the Veteran's new address. It is not clear how this evidence would provide support to the idea that he moved prior to August 2017. Even if one were to concede that he filed a copy of it with VA when it was signed (October 25, 2017), this was still months after the SOC was issued, after the substantive appeal was due, and does not provide any support that the Veteran moved prior to August 2017. The second is that his VA treatment records show, in July 2017, a temporary address change to the state and town he currently lives in, but to a different street address. It was noted that he was out of prescription medication and that it should be sent to the temporary address. The record shows his family lives in that state, and that he went for visits there in the past. Given that the change of address was labeled as temporary, to a place where his family lives and he had visited before, to a different address from his own, and that he had made no other attempted reports of changing his address until at least October 2017, the Board finds it is more than reasonable to conclude that this was a temporary visit and he needed prescription medication. The VA treatment records at that time do not discuss a potential move. Further, as mentioned above, he reported that he moved in June 2018 and was still living at the first address in August 2017. There is no more than mere suggestion from the evidence, as opposed to a direct statement from him, that he moved prior to the issuance of the August 2017 SOC. Additional evidence could have been submitted by the Veteran to show this was the case, such as a lease or bill, but it was not. Based on the above, the Board does not find it credible that he moved prior to the issuance of the August 2017 SOC. Accordingly, the Board must deny this claim as good cause has not been provided to extend the time to file a substantive appeal. The presumption of regularity has not been rebutted, and the record does not show he moved prior to August 2017. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.