Citation Nr: 22016018 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-29 460 DATE: March 21, 2022 ORDER The appeal as to whether a timely substantive appeal (VA Form 9) was received is denied. FINDING OF FACT 1. The Veteran's attorney submitted a December 2014 notice of disagreement (NOD) with the September 2014 rating decision. 2. The statement of the case (SOC) was issued in April 2015 and sent to the Veteran and his attorney. 3. The Veteran's attorney submitted a February 2018 VA Form 9 that was untimely. 4. The presumption of regularity applies, and the evidence does not show the presumption has been rebutted. CONCLUSION OF LAW The Veteran did not file a timely substantive appeal for the April 2015 statement of the case (SOC). 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.22, 19.32, 19.34, 19.52. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 decision of the Department of Veteran Affairs (VA) Regional Office (RO). In July 2021, the Veteran presented testimony at a video Board hearing before the undersigned Veterans Law Judge (VLJ). Timeliness of Substantive appeal Legal Criteria An appeal to the Board consists of a timely-filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal (e.g., a VA Form 9 or equivalent statement). See 38 C.F.R. § 19.20. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 C.F.R. § 19.22. Generally, a substantive appeal must be filed within 60 days from the date that the AOJ (in this case the Regional Office (RO)) mails the SOC to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the decision being appealed (whichever period ends later). See 38 U.S.C. § 7105(a), (b)(1); 38 C.F.R. § 19.52. Absent clear evidence to the contrary, courts will generally presume that public officials have properly discharged their duties, including mailing required notice documents. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Schoolman v. West, 12 Vet. App. 307, 310 (1999). This "presumption of regularity" may be triggered by a showing of an evidentiary predicate or legal duty requiring government action. See Romero v. Tran, 33 Vet. App. 252, 259 (2021). Once triggered, an individual may rebut the presumption by producing clear evidence that the government's practices are not regular or that regular practices were not followed. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); see Romero, 33 Vet. App. at 260. Factual Background The Veteran filed several claims for service connection in September 2013. A September 2014 rating decision denied service connection for serval issues. The Veteran's attorney submitted a December 2014 NOD. An April 2015 SOC was issued. The SOC was mailed to the Veteran's address on file and mailed to the Veteran's attorney. The Veteran submitted a February 2018 VA Form 9 in reference to the April 2015 SOC. The Veteran's attorney stated the office never received a copy of the Veteran's SOC as required by law. In a February 2018 letter the RO determined the VA Form 9 was not timely. The Veteran submitted a March 2018 NOD appealing the finding regarding timeliness of the February 2018 VA Form 9. In an April 2018 report of contact, the Veteran's attorney raised an issue regarding the April 2015 SOC. The Veteran's attorney noted the April 2015 SOC did not list the attorney's name specifically in the cc line. The April 2015 SOC indicated it was cc'd to the Veteran's agent or private attorney. During the report of contact, the decision review officer (DRO) made the attorney aware that this was standard practice at the time. During the July 2021 Board hearing, the Veteran's attorney explained their office did not receive the April 2015 SOC. The Veteran's attorney stated it was sent to the Veteran but not the firm representing the Veteran. The attorney stated their office was not made aware until they checked the Veterans Benefits Management System (VBMS) in 2018. In August 2021 the Veteran's attorney submitted several affidavits and a nonprecedential United States Court of Appeals for Veterans Claims (Court) decision. The lead paralegal from the firm submitted an affidavit stating they received all the incoming mail for the firm. The lead paralegal explained the mail is scanned and saved digitally and there was no copy of the "March 16, 2016, SOC." The remainder of the affidavit refers to an April 2015 SOC. The additional two affidavits were not specific to the Veteran's case and citing problems with VA's mailing system or failure to regularly mail copies of decisional documents. In an August 2021 statement, the Veteran's attorney cited to Leo v. Brown 8 Vet. App. 410, 413 (1995). The case noted noncompliance with statutory mailing requirements tolls the appeal filing period and a defect in mailing can be cured only by actual receipt. Analysis The Board finds the presumption of regularity applies and there is not clear evidence that the government's practices are not regular or that regular practices were not followed. First, in the April 2018 report of contact the DRO explained to the Veteran's attorney it was regular practice in April 2015 to include in the cc line agent or private attorney and not the specific private attorney's name. Second, the Veteran's attorney stated their firm did not receive the document. However, the evidence does not support this finding. The lead paralegal submitted an affidavit that referenced a "March 16, 2016, SOC." The SOC was issued on April 28, 2015. The Board affords low probative weight to the lead paralegal's statement because the incorrect date for the SOC is cited. The lead paralegal notes there was no mail for a March 16, 2016, SOC which would not be unusual because the SOC was issued on April 28, 2015. Third, the Board affords low probative weight to the remaining affidavits and the nonprecedential Court decision. The affidavits note problems with mailings but there is no clear evidence indicating mailing decisions is not regular. The presumption of regularity specifically applies to mailing notice documents. The affidavits address the "mail" in general which is outside of the VAs control. Additionally, neither affidavit indicated direct knowledge of the Veteran's specific case. As noted above the Court decision provided was nonprecedential and therefore not binding on the Board. Lastly, the Board finds Leo v. Brown 8 Vet. App. 410, 413 (1995) is not applicable in this case. The case specifically states when there is a "defect in mailing" it can be cured only by actual receipt. The evidence in this case does not show a defect in mailing. The April 2015 SOC was mailed to the Veteran and his attorney. The evidence does not show the mail was returned or that regular mailing practices were not followed. Notably, the person in the firm that handles all incoming mail cited to the incorrect date for the April SOC. The evidence does not indicate the government practices were not regular or regular practices were not followed. Therefore, the Board finds the presumption of regularity applies. The Board finds the February 2018 VA form 9 was not timely. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Whipple, C 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.