Veteranclaims’s Blog

July 18, 2021

Single Judge Application; Romero v. Tran; presumption of regularity; appellant may rebut the presumption “by producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Crumlich, 31 Vet.App. at 205; Romero v. Tran, No. 19-3687, 2021 WL 266399, at *6 (Vet. App. Jan. 25, 2021) (“[C]lear evidence of irregularity is what robs the presumption of regularity of its power.”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3030
DONALD SCOTT DAVIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
GREENE, Senior Judge: The self-represented appellant, Donald Scott Davis, appeals a January 7, 2020, Board of Veterans’ Appeals (Board) decision that dismissed his claims for higher initial ratings for a lumbar spine disability and a lumbar spine surgical scar disability. Record of Proceedings (R.) at 5-13.2 Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). As explained below, the Court will affirm the Board’s decision.
I. BACKGROUND
Mr. Davis served on active duty in the U.S. Army from April 1974 to April 1976. R. at 4077. In December 2014, he was awarded service connection for a back disability, R. at 1404, and in March 2015 he was assigned a 10% rating for that disability and a noncompensable rating for a
1 Judge Greene is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 01-21 (Jan. 4, 2021).
2 The Board also remanded Mr. Davis’s claims for higher ratings for his service-connected right and left lower extremity radiculopathy and for a total disability rating based on individual unemployability. R. at 5. Because a remand is not a final decision of the Board subject to judicial review, these matters are not before the Court. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2020).
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surgical scar. R. at 1077. VA notified Mr. Davis of these decisions in an April 2, 2015, letter and he filed a Notice of Disagreement (NOD) on June 12, 2015. R. at 433, 669.
On November 9, 2015, a VA decision review officer increased Mr. Davis’s ratings to 20% for his back disability and 10% for his surgical scar. R. at 433, 551. The November 17, 2015, notification letter informed him that VA’s decision was “a partial grant of benefits sought on appeal,” because it was unknown whether the increase “satisfie[d] [his] appeal.” R. at 435. It also noted that Mr. Davis’s appeal “currently remains open and a separate Statement of the Case [(SOC)] will be issued.” R. at 433.
The record of proceedings contains an SOC also dated November 17, 2015, denying a rating higher than 20% for a back disability and a rating higher than 10% for a back scar. R. at 442-46. Mr. Davis claims that he never received this SOC. The November 17, 2015, correspondence states that Mr. Davis was required to file his appeal “within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that [he] appealed.” R. at 442. The carbon copy (cc) line on the correspondence names Mr. Davis’s representative, but does not specify his address. R. at 443.
On April 18, 2016, Mr. Davis submitted another NOD, stating that he was disputing VA’s November 17, 2015, “notification/decision letter,” as to, among other claims, the assigned evaluations for his back disability and back scar. R. at 316-17. Accompanying the NOD was a letter (dated April 15, 2016) and argument prepared by Mr. Davis’s representative, neither of which mentioned the November 17, 2015, SOC. Id. On April 29, 2016, VA issued an SOC that addressed separate claims that Mr. Davis was appealing. R. at 189.
In June 2016, Mr. Davis submitted a Substantive Appeal, responding to the April 2016 SOC, and disputing, among other things, the ratings assigned for his back disability and scar. R. at 166-72. Along with the Substantive Appeal, his representative submitted correspondence suggesting that the April 2016 SOC was incomplete because it failed to address his back disability and scar ratings. R. at 168.
In a September 2016 letter, the RO informed Mr. Davis that his April 18, 2016, NOD was not a timely filed Substantive Appeal as to his claims for increased ratings for his back and back scar disabilities. R. at 127-30. The letter noted that the SOC was issued on November 17, 2015, and the appeal period expired on April 2, 2016. R. at 93, at 127.
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In December 2018, the Board determined that Mr. Davis did not perfect his appeal as to the March 2015 rating decision because he did not submit a Substantive Appeal within 60 days of the November 2015 SOC or within the 1-year period following the March 2015 rating decision. R. at 35. Mr. Davis then appealed to the Court. In July 2019, the Court granted a joint motion for partial remand, agreeing that the Board failed to address the presumption of regularity as applied to the mailing of the November 2015 SOC. R. at 30-39.
On remand, the Board determined that Mr. Davis did not timely appeal the March 2015 rating decision and that the presumption of regularity had not been rebutted. R. at 9. The Board reasoned as follows:
The [Board] notes that the letter accompanying the SOC lists the [v]eteran’s address of record at the time of the SOC. It is the same address listed in the letter accompanying the April 2016 SOC that the [v]eteran successfully appealed. Therein, in the cc line, the [v]eteran’s attorney’s name, but not his address, is listed. In fact, in four other SOCs or supplementary SOCs of record, the [v]eteran’s representative’s name but not address is listed. The [v]eteran successfully appealed the April 2004 and May 2012 SOCs addressed in this manner to the Board. Thus, the absence of the representative’s address from the cc line of the letter accompanying a SOC is not clear evidence that would rebut the presumption of regularity. Rather, including the representative’s name suggests that the representative did, in fact, receive the SOC. That letters sent by VA to the [v]eteran in June 2016, September 2016, and July 2017 had cc lines that listed the [v]eteran’s attorney’s name and address does not indicate clear evidence of irregularity in light of the [v]eteran successfully appealing claims to the Board adjudicated in prior SOCs where the accompanying letter did not list the representative’s address.
. . . .
[I]n this case, the letter accompanying the November 2015 SOC is of record, shows that the SOC was sent to the [v]eteran at his address of record, and that a copy was also sent to the [v]eteran’s attorney at the attorney’s address of record. The [v]eteran also submitted a [N]otice of [D]isagreement (NOD), dated December 10, 2015, but received by VA on April 18, 2016, in which the [v]eteran attempted to note disagreement with the ratings assigned for his lumbar spine and lumbar surgical scar disabilities. The April 2016 SOC was issued only 11 days later. The [v]eteran in his June 2016 [sic] inquired as to why VA had not addressed the claims set forth in his April 2016 NOD, which was received by VA after he received the November 2015 SOC. The April 2016 NOD itself does not indicate that the [v]eteran did not receive his November 2015 SOC. Further, the Board finds that, rather than submit a[n] NOD on those issues, the [v]eteran’s attorney, who is knowledgeable in the claims process, would have inquired as to the status of the increased rating claims rather than resubmit a[n] NOD in April 2016, if he or the [v]eteran had not received the November 2015 SOC.
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R. at 9-10.
Appealing the Board decision, Mr. Davis argues that neither he nor his representative received the November 2015 SOC because “there is no proof the SOC was sent to [him] or his attorney,” and therefore he timely perfected his appeal of his claims for an increased rating for his back and back scar disabilities. Appellant’s Informal Brief (Br.) at 1-2. In response, the Secretary contends that the Board properly found that the presumption of regularity as to the mailing of the November 2015 SOC had not been rebutted and that Mr. Davis did not timely perfect his appeal as to the March 2015 rating decision. Secretary’s Br. at 6-14.
II. ANALYSIS
Under the presumption of regularity, VA employees are presumed to have performed their duties “correctly . . . and in accordance with the law.” Crumlich v. Wilkie, 31 Vet.App. 194, 201 (2019). This includes the presumption that VA properly mailed a copy of its decision. Crain v. Principi, 17 Vet.App. 182, 186 (2003) (applying the presumption to the RO’s mailing of an SOC); Davis v. Brown, 7 Vet.App. 298, 300 (1994). An appellant may rebut the presumption “by producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Crumlich, 31 Vet.App. at 205; see also Romero v. Tran, No. 19-3687, 2021 WL 266399, at *6 (Vet. App. Jan. 25, 2021) (“[C]lear evidence of irregularity is what robs the presumption of regularity of its power.”).
Mere assertions of nonreceipt of a Board decision alone do not rebut the presumption of regularity. See Crain, 17 Vet.App. at 186; Davis v. Principi, 17 Vet.App. 29, 36-37 (2003). Rather, there must be a declaration of nonreceipt by the appellant and additional evidence to corroborate this declaration, such as an address error that consequentially affected delivery. See Clarke v. Nicholson, 21 Vet.App. 130, 133 (2007) (quoting Jones v. West, 12 Vet.App. 98, 102 (1998)). Whether clear evidence exists to rebut the presumption is a question of law that the Court considers de novo. Id.
In this case, Mr. Davis has not presented clear evidence that the November 17, 2015, SOC was not mailed in accordance with the law and standard VA practices. The evidence before the
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Court indicates that it was mailed to Mr. Davis’s correct address,3 and there is no indication that it was returned to VA as undeliverable. R. at 442. Mr. Davis’s assertion of nonreceipt is insufficient to rebut the presumption of proper mailing. See Crain, 17 Vet.App. at 186.
Further, Mr. Davis has not presented any mailing defect sufficient for this Court to conclude that the SOC was not mailed properly. Although the face of the SOC does not specify Mr. Davis’s representative’s address, prior VA correspondence did not, either. See, e.g., R. at 188, 439, 696, 1055. Nevertheless, it appears that Mr. Davis and his representative received this correspondence and responded. See, e.g., R. at 318, 166, 669-70, 682. Accordingly, the Court does not find the omission of Mr. Davis’s representative’s address to be irregular or to have consequentially affected delivery. See Crumlich, 31 Vet.App. at 205; Clarke, 21 Vet.App. at 133. Moreover, the Court is persuaded that Mr. Davis’s counsel would have inquired about the SOC in his April 2016 correspondence had he or Mr. Davis not received it.
Mr. Davis has failed to rebut the legal presumption that he received the November 2015 SOC. He has not pointed to any clear evidence sufficient to rebut the presumption, and our review of the record does not reveal any sign of irregularity. The Board correctly determined that, under the presumption of regularity, VA sent the November 2015 SOC as it should have and that Mr. Davis did not timely appeal to the Board the March 2015 rating decision. See 38 C.F.R. § 19.52(b)(1) (2015) (for claims decided before February 19, 2019, a claimant had 60 days from the date the RO mailed an SOC, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ended later, to file a Substantive Appeal); see also 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 3.2400(b) (2020). The Board decision will be affirmed.
III. CONCLUSION
Based on the foregoing analysis, the parties’ briefs, and a review of the record of proceedings, the Board’s January 7, 2020, decision is AFFIRMED.
3 Cf. Cross v. Brown, 9 Vet.App. 18, 19-20 (1996) (finding the presumption of regularity rebutted where the mailed Board decision was returned as undeliverable and the record disclosed other possible addresses for the claimant); Piano v. Brown, 5 Vet.App. 25, 27 (1993) (holding the presumption of regularity rebutted where the Board used an incorrect address in mailing its decision to the appellant); Chute v. Derwinski, 1 Vet.App. 352, 353 (1991) (finding the presumption of regularity rebutted where the veteran claimed that he hadn’t received the Board decision, he had asked VA about the decision after it was mailed, and VA did not show evidence of mailing the decision).
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DATED: April 19, 2021
Copies to:
Donald Scott Davis
VA General Counsel (027

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