Citation Nr: A24041908 Decision Date: 07/30/24 Archive Date: 07/30/24 DOCKET NO. 210422-154976 DATE: July 30, 2024 ORDER The request to accept a VA Form 20-0996, received on April 5, 2021, as a timely application for a higher-level-review of the previously assigned effective date of the Veteran's awards of service connection for erectile dysfunction and special monthly compensation for loss of use of a creative organ is denied. FINDINGS OF FACT 1. On March 18, 2020, the Agency of Original Jurisdiction (AOJ) mailed a letter to the Veteran's last known address explaining its rulings on several claims for benefits; the letter explained to him that the effective date of his award of service connection for erectile dysfunction and special monthly compensation for loss of use of a creative organ was January 8, 2020. 2. On April 5, 2021, more than one year after he was notified of the relevant decision, the Veteran submitted a VA Form 20-0996 seeking a higher-level review of the effective dates assigned to his award of service connection for erectile dysfunction and special monthly compensation for loss of use of a creative organ. CONCLUSION OF LAW The Veteran's request for a higher-level review of the effective date assigned to his awards of service connection for erectile dysfunction and special monthly compensation for loss of use of a creative organ was untimely. 38 U.S.C. §§ 5104B, 5104C; 38 C.F.R. §§ 3.2500, 3.2601. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1973 to May 1976. This case comes to the Board from an April 2021 letter decision issued by the Agency of Original Jurisdiction (AOJ). In the letter, the AOJ wrote that it would not accept a VA Form 20-0996 filed by the Veteran on April 5, 2021 as a request for a higher-level review of issues concerning the Veteran's award of service connection for erectile dysfunction and special monthly compensation, "as the time limit to file this application has passed." On April 22, 2021, the Veteran filed a VA Form 10182 ("Notice of Disagreement") appealing the AOJ's timeliness finding to the Board. Because the AOJ's timeliness ruling was issued after February 19, 2019, the Appeals Modernization Act ("AMA") applies to this case. See 38 C.F.R. §§ 19.2, 20.4. In his notice of disagreement, the Veteran selected the option of direct review by the Board without submission of additional evidence and without a hearing. This means that the Board's review is limited to the evidence of record at the time of the AOJ's April 2021 letter decision. See 38 C.F.R. § 20.301. Under the AMA procedures, when a claimant disagrees with a VA decision, he or she may request a higher-level-review (HLR) of the unfavorable ruling in which an experienced adjudicator, who did not participate in the prior decision, reassesses that decision. See 38 C.F.R. § 3.2601(e). HLR requests must be received within one year of the date of the issuance of the notice of the unfavorable decision. See 38 U.S.C. § 5104B(b)(1)(B); 38 C.F.R. § 3.2601(d). On January 8, 2020, the Veteran applied for service-connected compensation for erectile dysfunction together with several other claimed benefits. On March 16, 2020, the AOJ granted service connection for erectile dysfunction, assigning a zero percent disability rating, effective January 8, 2020 (the date of receipt of the claim). In the same decision, the AOJ awarded the special monthly compensation (SMC) for loss of use of a creative organ, also effective January 8, 2020. On March 18, 2020, the AOJ mailed an explanatory letter and a copy of the decision to the address identified by the Veteran in his most recent correspondence. The letter informed the Veteran that, if he disagreed with the AOJ's rulings, he had "one year from the date of this letter" to elect one of several review options, including HLR. On April 5, 2021, the Veteran submitted a completed VA Form 20-0996 ("Decision Review Request: Higher-Level Review"). In part III of the form ("Issues for Higher-Level Review"), the Veteran indicated his desire for the AOJ to adjust the effective date of his award of SMC for loss of use from January 8, 2020 to September 2007. Part IV ("Certification and Signature") indicates that the Veteran signed the document on April 2, 2021. The Board finds that the AOJ was correct in treating the Veteran's HLR request as untimely. The AOJ did not receive the Veteran's Form 20-0996 until eighteen days after the expiration of the time limit for requesting an HLR review of the effective dates for service connection for compensation for erectile dysfunction and for SMC assigned in the March 2020 decision. Before reaching this conclusion, the Board has considered the arguments of the Veteran's former representative, who submitted a written brief addressing the timeliness issue in May 2021. Citing Layno v. Brown, 6 Vet. App. 465 (1994), the brief suggests that the AOJ should have treated the HLR request as timely because the Veteran is competent to describe symptoms he personally experienced. The Veteran, the argument continues, has experienced symptoms of erectile dysfunction since 2007. Unlike this case, Layno did not address whether the appellant had filed documents within an applicable time limit. It is true that the Court held that a witness is competent to testify, "to the symptoms or facts that he observed" and to report information, "within the realm of his personal knowledge." Id. at 479. But in this case, whatever his personal knowledge of his symptoms may be, the Veteran made no statements attempting to explain the fact that the VA received his April 2021 HLR request more than one year after he was notified of the March 2020 AOJ decision. The Veteran has not, for example, suggested that he never received the letter which the AOJ mailed to his address on March 18, 2020. The Veteran's statements about his erectile dysfunction symptoms do not explain why he did not submit VA Form 20-0996 until more than one year after the March 2020 AOJ decision. The relevant information in the claims file strongly favors the conclusion that the Veteran's HLR request was untimely. The address to which the AOJ mailed the March 18, 2020 letter is the same address the Veteran identified on his April 5, 2021 HLR request, on his April 2021 notice of disagreement, and on subsequent documents he filed concerning other claimed VA benefits. Moreover, the postal service did not return the March 18, 2020 letter to the AOJ as undeliverable. There is a presumption of regularity, which requires the Board to find that, unless the presumption is rebutted, employees of the AOJ properly discharged their official duties by mailing the March 18, 2020 letter the Veteran's last known address on the date the document was issued. See Woods v. Gober, 14 Vet. App. 214, 220 (2000). 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. Crain v. Principi, 17 Vet. App. 182, 186 (2003). "Absent the production of such clear evidence [to rebut the presumption of regularity], delivery is proven. If, on the other hand, clear evidence is presented to rebut the presumption of regularity, the burden then shifts to the Secretary to establish proper mailing of notice in accordance with the Court's caselaw." Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). A statement by the claimant that he did not receive the relevant correspondence, standing alone, is not sufficient to rebut the presumption. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). In this case, although he has appealed the AOJ's finding that his April 2021 HLR request was untimely, the Veteran has provided no information whatsoever tending to rebut the presumption of regularity. He has not even denied receiving the March 18, 2020 letter. Thus, the presumption has not been rebutted in this case, which means that the Board must presume that the Veteran was notified of the effective date assigned to his awards of service connection for erectile dysfunction and SMC for loss of use of a creative organ when the postal service delivered the March 18, 2020 letter to him. See Clarke, 21 Vet. App. at 133. As noted, that letter clearly advised him that there was a one-year time limit for seeking a higher-level review of the AOJ's decision. Consistent with this ruling, the Board finds that the Veteran did not file his VA Form 20-0996 requesting an HLR until after the expiration of the one-year time limit for doing so. Thus, the AOJ correctly treated the Veteran's HLR request as untimely. The Veteran's request for a ruling from the Board accepting his April 5, 2021 HLR request as timely is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.