Veteranclaims’s Blog

August 20, 2015

Single Judge Application; Kyhn v. Shinseki, 716 F.3d 572, 576, 577 (Fed. Cir. 2013); Presumption Regularity Attaches to VA Manual Required Actions

Excerpt from decision below:

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“The presumption of regularity may be premised on independent legal authorities or published manuals that specify the action VA must or will take in certain circumstances. Kyhn v. Shinseki, 716 F.3d 572, 576, 577 (Fed. Cir. 2013); see Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004); Johnson v. Shinseki, 23 Vet.App. 344, 351 (2010). 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. Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler, 244 F.3d at 1340; see also Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal), aff’d per curiam 232 F.3d 908 (Fed. Cir. 2000)(table).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-2716
RAYMOND QUILLEN, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Raymond Quillen appeals pro se a June 27, 2014, decision
of the Board
of Veterans’ Appeals (Board)that dismissed his claim for entitlement to an
effective date earlier than
December 17, 1999, for the award of service connection for hepatitis C.
This appeal is timely and
the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Single judge disposition
is appropriate when the issue is of “relative simplicity” and “the outcome
is not reasonably
debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons that follow, the
Court will affirm the June 2014 Board decision.
I. FACTS
On December 17, 1999, Mr. Quillen filed a claim for VA disability benefits
for hepatitis C.
Record (R.) at 1303-07. In December 2002, the VA regional office (RO)
granted entitlement to
service connection for hepatitis C, with a 100% disability rating from
December 17, 1999, and Mr.
Quillen filed a Notice of Disagreement (NOD). R. at 1055-56, 1076-84.
In January 2004, the RO issued a Statement of the Case (SOC) that denied
entitlement to an
earlier effective date for the grant of service connection for hepatitis C.
R. at 1045-49. The cover
letter indicated that the SOC was mailed to Mr. Quillen at his last known
address and that his

representative, the American Legion, was also mailed a copy. R. at 1045-
46. The cover letter also
advised Mr. Quillen that he “must” file his appeal within 60 days and that
, “[i]f we do not hear from
you within this period, we will close your case.” Id.
In August 2005, Mr. Quillen submitted correspondence to the RO that
expressed
disagreement with the effective date assigned for service connection for
hepatitis C. R. at 1029-31.
Mr. Quillen also stated that he had “recently received a copy [of the
December 2002 RO decision]
from the American Legion” and asserted that he had no recollection of
having previously received
notification of that decision. R. at 1033.
In September 2005, the RO notified Mr. Quillen that, because he had missed
the deadline to
perfect his appeal, his correspondence could not be accepted as a formal
appeal but would be treated
as a claim to reopen the effective date awarded to his service-connected
hepatitis C. R. at 1018-23.
In July 2006, the RO, inter alia, denied his claim to reopen the
assignment of an earlier
effective date for hepatitis C, and Mr. Quillen filed an NOD. R. at 716-17,
789-800. In October2008,
the RO issued an SOC that, inter alia, continued to deny his request to
reopen and Mr. Quillen
appealed to the Board. R. at 696-715. In April 2012, the RO issued a
Supplemental SOC that
continued to deny his request to reopen his claim. R. at 80-85.
In its June 2014 decision on appeal, the Board dismissed Mr. Quillen’s
claim for an earlier
effective date for the award of service connection for hepatitis C. R. at
3-7. The Board determined
that it must be presumed, under the presumption of regularity, that VA
properly mailed copies of the
January 2004 SOC to Mr. Quillen and his counsel and that Mr. Quillen’s ”
statement that the SOC
was not received is insufficient to rebut the presumption of regularity.”
R. at 5-6. Given the
presumption that the SOC was received, the Board then determined that Mr.
Quillen did not timely
perfect his appeal of the December 2002 RO decision. R. at 6. The Board
found that the August 2005
submission by Mr. Quillen was, in effect, a freestanding claim for
entitlement to an earlier effective
date that was precluded by Rudd v. Nicholson, 20 Vet.App. 296 (2006). Id.
The Board further found
that Mr. Quillen had not asserted clear and unmistakable error in the
December 2002 RO decision
and, accordingly, dismissed his claim. Id.
On appeal, Mr. Quillen argues in his informal brief that the December 2002
RO decision is
not final because he did not receive a copy of the January 2004 SOC and
that the presumption of
2

regularity should not be applied to VA’s mailing of that SOC. Appellant’s
Brief (Br.) at 1-2.
In response, the Secretary argues that the Board’s decision should be
affirmed because Mr.
Quillen’s claim amounts to a legally impermissible freestanding claim for
an earlier effective date.
Secretary’s Br. at 4-7. The Secretary further argues that Mr. Quillen has
not asserted that he actually
perfected his appeal to the Board nor has he demonstrated any error in the
Board’s finding that his
claim should be dismissed. Secretary’s Br. at 6-7.
II. ANALYSIS
A challenge to a regional office decision assigning an effective date with
which a claimant
disagrees may be made through a direct appeal of that decision, beginning
with the timely filing of
an NOD. See 38 U.S.C. § 7105(a). Where a claimant does not file an NOD,
the regional office’s
decision becomes final. 38 U.S.C. § 7105(c). Once a regional office
decision is final, a claimant may
attempt to overcome the finality of that decision in one of two ways: by a
request for revision of the
decision based on clear and unmistakable error or bya claim to reopen
based upon new and material
evidence. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc);
see 38 U.S.C.
§ 5109A(a) (“A decision by the Secretary . . . is subject to revision on
the grounds of clear and
unmistakable error. If evidence establishes the error, the prior decision
shall be reversed or
revised.”); 38 U.S.C. § 5108 (“If new and material evidence is presented
or secured with respect to
a claim which has been disallowed, the Secretary shall reopen the claim
and review the former
disposition of that claim.”).
Of those two possibilities, only a request for revision based on clear and
unmistakable error
can result in the assignment of an earlier effective date for the award of
disability benefits because
the effective date for an award based on a claim to reopen can be no
earlier than the date on which
that claim was received. 38 U.S.C. § 5110(a); see Leonard v. Nicholson,
405 F.3d 1333, 1337 (Fed.
Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the
appellant] cannot receive
disability payments for a time frame earlier than the application date of
his claim to reopen, even
with newevidence supporting an earlier disabilitydate.”). In the absence
of a clear and unmistakable
error challenge to a prior decision, this Court has made it clear that a
claimant cannot file, and VA
cannot adjudicate, a freestanding claim for an earlier effective date
because to do so would be to
3

compromise the rule of finality. Rudd, 20 Vet.App. at 300.
Mr. Quillen argues that the December 2002 RO decision is not final because
he did not
receive a copy of the January 2004 SOC. Appellant’s Br. at 1-2. He further
argues that it should not
be presumed that VA properly mailed the SOC. Id. The Court disagrees.
Under the presumption of regularity, it is presumed that Government
officials discharged
their official duties properly, in good faith, and in accordance with
applicable law and governing
regulations. See Marsh v. Nicholson, 19 Vet.App. 381, 385 (2005); Ashley v.
Derwinski, 2 Vet.App.
307, 308 (1992). “The doctrine thus allows courts to presume that what
appears regular is regular.”
Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). The presumption of regularity may be premised on independent legal authorities or published manuals that specify the action VA must or will take in certain circumstances. Kyhn v. Shinseki, 716 F.3d 572, 576, 577 (Fed. Cir. 2013); see Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004); Johnson v. Shinseki, 23 Vet.App. 344, 351 (2010). 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. Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler, 244 F.3d at 1340; see also Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that
appellant bears burden of demonstrating error on appeal), aff’d per curiam 232 F.3d 908 (Fed. Cir.
2000)(table).
Pursuant to statute, when a claimant files an NOD challenging an adverse
RO decision, the
RO “shall prepare a[S]tatement of the [C]ase” that “will be submitted to
the claimant and to the
claimant’s representative, if thereis one.”38U.S.C. § 7105(d)(1), (3).
VA’s implementing regulation
likewise specifies that a “Statement of the Case will be forwarded to the
appellant at the latest
address of record and a separate copy provided to his or her
representative (if any),” accompanied
by “information on the right to file, and time limit for filing, a
Substantive Appeal; information on
hearing and representation rights; and a VA Form 9, ‘Appeal to Board of
Veterans’ Appeals.'”
38 C.F.R. § 19.30 (2015). Based on these authorities clearly delineating
the VA practice of mailing
copies of SOCs to claimants and their representatives, the Court concludes
that the presumption of
regularity attaches to VA’s mailing of an SOC in this case.
Here, the Board explained that the December 2002 RO decision that assigned
a December
17, 1999, effective date for Mr. Quillen’s service-connected hepatitis C
had become final because
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Mr. Quillen did not file a timely Substantive Appeal. R. at 4. With
respect to Mr. Quillen’s assertion
that he did not receive a copy of the January 2004 SOC, the Board stated:
Inorderto rebut[the] presumption[of regularity], hemust
produceevidenceshowing
VA’s regular mailing practices were not regular or not followed . . . .
The Veteran has
made no attempt at such a showing here. In fact, the address on the
January 2004
SOC is identical to the address he provided in his February 2003 NOD and
his
August 2005 correspondence, with no indication that he had moved.
Therefore, his
statement that the SOC was not received is insufficient to rebut the
presumption of
regularity.
R. at 5-6. Accordingly, the Board determined that the December 2002 RO
decision was final and,
therefore, Mr. Quillen’s August 2005 request for an earlier effective date
was the type of “claim” the
Court in Rudd expressly prohibited and dismissed his appeal. R. at 6-7.
The Court agrees with the Secretary that Mr. Quillen has not provided
clear evidence
necessaryto rebut the presumption that VA properly mailed a copyof the
January2004 SOC to him.
See Secretary’s Br. at 6-7. The record reflects that the January2004 SOC
was mailed to Mr. Quillen’s
address of record and the only evidence Mr. Quillen presents is his own
assertion that he did not
receive a copy of it. See R. at 1033, 1045-46. However, Mr. Quillen’s
assertion that he did not
receive the January 2004 SOC, by itself, is not sufficient evidence to
demonstrate irregularity that
would rebut the presumption of regularity. See Jones v. West, 12 Vet.App.
98, 102 (1998)
(“[A]ssertion of nonreceipt, standing alone, does not rebut the
presumption of regularity in VA’s
mailing process.”).
Although Mr. Quillen argues that it is unfair to place the burden of proof
on him as to this
“matter of mail distribution and control,” the Court agrees with the
Secretary that he fails to
demonstrate any basis for reconsidering VA’s mailing practices in this
instance. Appellant’s Br. at 2;
see Secretary’s Br. at 7. The law is clear that once the presumption
attaches to a particular VA action,
the claimant attackingthe presumption bears the burden of showing by”clear
evidence” that regular,
proper procedures were not followed. Parks, 716 F.3d at 584. Here, Mr.
Quillen bears the burden
of presenting clear evidence to rebut the presumption of regularity; he
has not done so. See id.;
Butler, 224 F.3d at 130; Hilkert, 12 Vet.App. at 151.
Accordingly, the Board did not err in concluding that the December 2002 RO
decision
became final and Mr. Quillen cannot sidestep the finality of that decision
through the use of a
5

freestanding earlier-effective-date claim. See Rudd, 20 Vet.App. at 300.
It is clear from these facts
that Mr. Quillen attempts to assert the very “claim” the Court in Rudd
expressly prohibited and the
Board properly determined that the claim must be dismissed. R. at 6-7. Mr.
Quillen is free to file a
request for revision of a prior final decision based on clear and
unmistakable error at any time, if he
so desires. See 38 C.F.R. § 20.1404 (2015).
III. CONCLUSION
Based on the foregoing analysis, the record of proceedings, and the
filings of the parties, the
Board’s June 27, 2014, decision dismissing the claim for an effective date
earlier than December 17,
1999, for the award of service connection for hepatitis C is AFFIRMED.
DATED: July 23, 2015
Copies to:
Raymond Quillen
VA General Counsel (027)
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