# Thompson v. Brown

> United States Court of Appeals for Veterans Claims · August 25, 1995 · 8 Vet. App. 169

URL: https://www.frixlaw.com/law-library/cases/6612692

## Case

- **Full name:** Charles E. THOMPSON v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** August 25, 1995
- **Citations:** 8 Vet. App. 169; 1995 U.S. Vet. App. LEXIS 648; 1995 WL 505161
- **Precedential status:** Published
- **Opinion:** Concurring in part by Ivers
- **Judges:** Ivers, Kramer, Steinberg
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated in part, on other grounds by Thompson v. Brown, 8 Vet. App. 430 (1995).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6612692

## How later opinions describe it (automated extraction)

- holding that, absent evidence that claimant took affirmative steps after filing VA Form 1-9 (Substantive Appeal to BVA) to change address he provided on it, BVA was entitled to rely on that address as being his “last known address” under 38 U.S.C. § 7104(e) and to use it for p…
- stating that VA Form 9 is "also called the 'formal appeal' (38 U.S.C. § 7105(d)(3)) and the 'Substantive Appeal' (38 C.F.R. §§ 20.200, 20.202-20.204)[]”
- holding that 38 U.S.C. § 5104(a) requires that Board mail copy of notice of appellate rights along with BVA decision
- holding that BVA decision was actually received at specifically designated address of representative
- holding that section 5104(a) notice of appellate rights must be mailed with BVA decision

## Opinion text

IVERS, Judge,
concurring in part and dissenting in part:
I concur in the result of the majority, but I respectfully disagree with the analysis taken by the majority in sections II.A.l, II.A.2, and II.A.3 and throughout the opinion regarding the applicability of 38 U.S.C. § 5104 (a) and the majority’s holding in section II.B.2 that the presumption of regularity of mailing to the appellant has been rebutted in this case.
The majority opinion valiantly tries to reconcile the use of the word “provide” in 38 U.S.C. § 5104 (a) with the use of the word “mail” in 38 U.S.C. § 7104 (e) even though there is no need for reconciliation. The Court has held that section 5104(a) requires the Board to provide notice of a claimant’s appellate rights with respect to an adjudication. See Rosler v. Derwinski 1 Vet.App. 241, 249 (1991). It is also true, however, that the Court has treated the section 5104(a) obligation as a separate requirement that is more applicable to agencies of original jurisdiction. For instance, in Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (emphasis added), upon having discussed the statutory requirement under section 7104(d)(1) that the Board provide reasons or bases for its decisions, the Court referred to the then-recently enacted section 5104 provision and stated: “In the future, it may well be that the Board will find it easier to fulfill this mandate [under section 7104(d)(1)] since Congress recently imposed a similar requirement on the Secretary when claims are denied.” As the emphasized portion makes clear, the section 5104 requirement is similar but not identical to the section 7104(e) requirement.
In addition, the two statutory provisions are located in two separate chapters of title 38. Section 5104(a) is found in Chapter 51, which deals with the claims adjudication process, whereas section 7104(e) is found in Chapter 71, which deals specifically with the Board. The statutory structure supports the conclusion that the provisions in chapter 71 were crafted specially for the Board: “All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.” 38 U.S.C. § 7104 (a). The first sentence echoes the language used in section 5104(a) (“In the case of a decision by the Secretary under section 511[(a)] of this title ...”). The statutory structure thus recognizes the distinction between a decision under section 511(a) by the Secretary and a review on appeal by the Board. Consequently, section 5104(a) is not before us and section 7104(e) is clear and concise and applies to the Board.
This is not to say that the Board is not required to fulfill the duty to assist under 38 U.S.C. § 5107 (a), or other provisions of title 38 that are not found within the four corners of chapter 71. Rather, Congress placed different requirements on the Board in at least one particular area — that of the mailing of notices.
The consequences of such a distinction in the wording of the organic statute of the Board are crucial. As the Court recently stated, “to mail” means something altogether different from “to furnish.” See Montalvo v. Brown, 7 Vet.App. 312, 314 (1995). Section 7104(e) requires that the BVA mail its decision; therefore, the presumption of regularity involves the aspect of mailing, not the aspect of delivei"y or receipt. Cf. McKentry v. Secretary of Health and Human Services, 655 F.2d 721, 725 (6th Cir.1981) (where relevant statute provided for extension of time to file reconsideration request when good cause, such as failure of individual to receive notice of initial determination, existed for failure to file timely request, Court held that presumption of regularity was rebutted by lack of evidence that notice had been mailed and by appellant’s introduction of evidence of non-receipt of notice). But see Godfrey v. U.S., 997 F.2d 335, 338 (7th Cir.1993) (where relevant statute required individual to “accept” refund cheek, government was still entitled to presumption of delivery where government could present either evidence of actual mailing or evidence of “present proof of procedures followed in the regular course of operations which give rise to a strong inference that the check was properly addressed and mailed.”); but cf. Meckel v. Continental Resources Co., 758 F.2d 811, 817 (2d Cir.1985) (in case involving private litigants, Court rejected notion that denial of receipt *183 alone was sufficient to rebut presumption of mailing of notice; in addition to denial of receipt, there is required “some proof that the regular office practice was not followed or was carelessly executed so the presumption that notice was mailed becomes unreasonable”). Since the Court held in Montalvo that “to furnish” was synonymous with “to provide,” applying the form of notice that is inherent in section 5104 would be directly at odds with the specific form of notice required for the Board’s decisions under section 7104(e) (mailing directly via- the United States Postal Service, see Davis v. Brown, 7 Vet.App. 298, 301-03 (1994)). Therefore, it is not necessary to read section 5104(a) “in the context” of section 7104(e). Rather, it is imperative to apply the provision of title 38 that speaks directly to the issue at hand here, i.e., section 7104(e).
In addition, I must disagree with the majority’s conclusion that the presumption of regularity has been rebutted in this instance. The majority relies on the same set of facts to find that, on the one hand, the presumption of regularity was rebutted, but that, on the other hand, the Secretary met the burden of persuasion to establish that the BVA properly fulfilled its statutory requirements. That is logically inconsistent.
The majority specifically states:
Absent any evidence that the veteran took affirmative steps after filing the 1-9
Appeal to change the address he provided on it by specifically directing VA to send all correspondence and notices to an address other than that provided on the 1-9 [Ajppeal, and absent any evidence that mailings to the 1-9 Appeal address had been returned as undeliverable, [citation omitted] the Court holds that the BVA ivas entitled to rely on that address as being the veteran’s “last known address” and to use it for purposes of mailing a copy of its decision.
Ante at 179.
I do not disagree with the proposition that the address provided by a claimant on the VA Form 1-9 Appeal should be considered the last known address for purposes of mailing a copy of any Board decisions unless a claimant has specifically provided definitive notice of an address change in a clear and concise fashion. Indeed, the Board’s own regulations dealing with the submission of additional evidence, changes in representation, or requests for a personal hearing recognize that such requests should be directed to the Board, not to the agency of original jurisdiction, at a certain point after an appeal has been certified to the Board. See 38 C.F.R. §§ 19.35-19.37 , 20.1304 (1994).
The practice of relying on a specific document is also similar to the practice of other administrative agencies, such as in the federal taxation context, where the Internal Revenue Service (IRS) is authorized to send notice of a determination of a tax deficiency to the taxpayer’s “last known address.” 26 U.S.C. § 6212 . Courts have interpreted the phrase as meaning “the taxpayer’s last permanent address known by the Commissioner or the last known temporary address of a definite duration to which the taxpayer has directed the Commissioner to send all communications.” Gaw v. C.I.R., 45 F.3d 461, 465 (D.C.Cir.1995) (quoting Marks v. Commissioner, 947 F.2d 983, 984 (D.C.Cir.1991), but omitting internal punctuation and citation). “The taxpayer has the obligation in the first instance to give the IRS ‘clear and concise notification’ of an address change.” Gaw, 45 F.3d at 465 (citations omitted); see also Eschiweiler v. United States, 946 F.2d 45, 49 (7th Cir.1991) (if taxpayer had wanted IRS to send correspondence to particular address, “it was his obligation to give the IRS ‘clear and concise’ notification of this desire.”). Recognizing the address provided by a claimant on the VA Form 1-9 Appeal in the absence of any subsequent clear and concise notification of an address change has the practical benefit of simplicity and reliability and places the burden squarely on the individual who is in the best position to know the correct mailing address — the claimant. Moreover, such a requirement would pose no undue formality on the claims adjudication process while better protecting the rights of claimants to notice of Board decisions.
Again, I disagree with the majority’s conclusion that the presumption of regularity was rebutted. If the Board was entitled to *184 rely, as it should and as the majority decision holds, on the Canal Street address appearing on the VA Form 1-9, then the Board 'presumptively discharged its duties under the statute when it sent notice of the BVA decision to that address.
For the foregoing reasons, I must respectfully concur in the result, but not in the portions of the majority’s analysis that I have discussed above.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6612692. Public record. Not legal advice.