Orland R. Marsh v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 02-2384

ORLAND R. MARSH , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided November 17, 2005 )

Michael R. Dowling, of Ashland, Kentucky, was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Joan

E. Moriarty, Deputy Assistant General Counsel; and Debra L. Bernal, all of Washington, D.C., were

on the brief for the appellee.

Before GREENE, Chief Judge, and KASOLD and SCHOELEN, Judges.

SCHOELEN, Judge: The appellant, Orland R. Marsh, through counsel, seeks review of an

August 23, 2002, Board of Veterans' Appeals (Board or BVA) decision that determined that he had

failed to submit a timely Notice of Disagreement (NOD) as to a VA regional office's (RO's)

March 1994 denial of his service-connection claims. Record (R.) at 1-9. The appellant and the

Secretary both filed a brief. This appeal is timely, and the Court has jurisdiction over the case

pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will reverse the

August 2002 Board decision and remand the matter for further proceedings consistent with this

opinion.

I. BACKGROUND

The appellant served on active duty in the U.S. Air Force from June 1987 to April 1988.

R. at 13. In October 1993, the appellant filed claims for service connection for a back disability and

post-traumatic stress disorder (PTSD). R. at 102-05. In March 1994, the RO denied the claims.

R. at 16-19. In a letter dated April 7, 1994, the RO notified the appellant of the adverse decision.

R. at 21. In November 1994, attorney Michael R. Dowling submitted a VA "Appointment of

Representative" form notifying the RO that he represented the appellant. R. at 25. On

April 19, 1995, the RO received an NOD dated April 3, 1995. Supplemental R. at 1-2. The NOD

stated that the appellant "disagree[d] with the decision denying service[-]connected benefits for a

back injury and denying service connection for Post[-]Traumatic Stress Disorder" and requested the

RO to issue a Statement of the Case (SOC). R. at 1.

In August 1995, the RO issued an SOC identifying the issues on appeal as entitlement to

service connection for PTSD and a back disability. R. at 32. In the SOC, the RO stated that the

appellant was notified of the March 1994 rating decision on April 7, 1994, and that an NOD was

received on April 19, 1995. R. at 33. No jurisdictional deficiency was noted in the SOC. The RO

received the appellant's Substantive Appeal on September 5, 1995. R. at 41-43.

The Board raised, for the first time, the matter of the timeliness of the NOD in its

September 16, 1997, decision and dismissed the appeal. The Board concluded that the appellant had

not submitted a timely NOD as to the March 1994 RO denial of his service-connection claims.

R. at 75-79. The Board noted that the postmark was not in the claims file. R. at 79. Shortly

afterward, the appellant filed a motion for reconsideration of the Board decision. R. at 84-85.

Attached to the motion was a September 1997 affidavit from Judy G. Meyers, secretary to the

appellant's counsel, describing the office's mailing practice. R. at 86. She attested that "[i]n the

normal course of business, all mail is delivered to the Post Office on a daily basis making the date

of any letter the date on which the letter would be postmarked." Id. In his motion, the appellant

argued, inter alia, that the presumption of regularity applied to the manner in which the RO issued

the SOC on the merits of the appellant's underlying claims. R. at 84-85. On January 30, 1998, the

Board denied the motion for reconsideration. R. at 133-34.

The appellant appealed the September 1997 Board decision to this Court. On appeal, the

appellant again raised the presumption of regularity. He argued:

There is a presumption of regularity . . . . The record in this case was certified and

transmitted thereby indicating that the appeal was properly taken . . . . The [RO] did

not raise or assign as error the failure of the [v]eteran to timely file the appeal . . . .

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The presumption of 38 C.F.R. § 20.305 should not be given effect by virtue of the

presumption of regularity. The [RO] had the postmark of the NOD in its possession,

allowed the appeal to go forward, and in accordance with established procedures,

mailed the [SOC] to the [v]eteran and initiated the appeal process.

R. at 138-39. In October 1998, the Court remanded the case because the Court concluded that the

Board had violated Sutton v. Brown, 9 Vet.App. 553, 564-70 (1996), and Bernard v. Brown,

4 Vet.App. 384, 390-91 (1993), by failing to address whether the Board's sua sponte consideration

of the question of the timeliness of the appellant's NOD, without first according the appellant an

opportunity to submit evidence or argument on that question, was prejudicial. Marsh v. West,

11 Vet.App. 468, 470 (1998).

The Board subsequently remanded the case for the RO to determine whether the appellant

filed a timely NOD with respect to the March 1994 rating decision. R. at 153. In July 1999, the RO

concluded that, because there was no postmark date, there was no evidence that the appellant's NOD

was received within the one-year appeal period. Therefore, the RO concluded that the NOD was

untimely. R. at 171. In August 1999, the appellant filed an NOD challenging the July 1999 decision.

R. at 174-77. The appellant again argued, inter alia, that VA had not applied the presumption of

regularity. Id. He also referred to the September 1997 affidavit from counsel's secretary to support

his argument that the NOD was timely filed. Id. In December 1999, the Board again determined that

the appellant did not submit a timely NOD as to the RO's March 1994 rating decision, and dismissed

the appeal for lack of jurisdiction. R. at 184-90. Following an appeal, the Court, in December 2001,

vacated the December 1999 Board decision and remanded the matter, in part, because the Court

concluded that the Board had erred in making its timeliness determination without considering the

September 1997 affidavit from the appellant's counsel's secretary regarding the mailing practices in

the counsel's office. R. at 225-29. Marsh v. Principi, No. 00-686, 2001 U.S. Vet. App. LEXIS 1303

(Nov. 19, 2001).

On August 23, 2002, the Board issued the decision now on appeal, again determining that

it had no jurisdiction over the appellant's appeal because he failed to file a timely NOD as to the

March 1994 RO decision. R. at 1-10. The Board discussed the requirement that an NOD must be

filed within one year from the date of notification of a decision on a claim, the regulatory provisions

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regarding acceptance of a postmark as evidence of timely filing, and the five-day mailing

presumption in the absence of a postmark. R. at 7 (citing 38 U.S.C. § 7105 and 38 C.F.R. §§ 3.160,

3.302, 3.305, 20.200 (2005)). After reviewing the evidence before it, the Board concluded that the

RO had received the NOD on April 19, 1995, more than one year after the RO notification of the

denial of the appellant's claims on April 3, 1994. R. at 8. The Board found that the record did not

include a U.S. Postal Service postmark for the NOD, and that "there is no legal authority for

accepting a substitute document (here the affidavit) as constituting evidence of a postmark in the

absence of the actual postmark." Id. With regard to the appellant's arguments concerning the

presumption of regularity, the Board stated that this argument is "without legal merit." R. at 9.

II. LAW

A. Requirements of an NOD

Appellate review of an RO decision is initiated by an NOD and completed by a Substantive

Appeal (VA Form 1-9, Appeal to Board of Veterans' Appeals) after an SOC is issued by VA.

38 U.S.C. § 7105(a); see Roy v. Brown, 5 Vet.App. 554, 555 (1993); 38 C.F.R. § 20.200 (2005).

There are content and time requirements for the filing of an NOD. An NOD must be "[a] written

communication from a claimant or his or her representative expressing dissatisfaction or

disagreement with an adjudicative determination by the [RO] and a desire to contest the result."

38 C.F.R. § 20.201 (2005). An NOD must be written "in terms which can be reasonably construed

as disagreement with that determination and a desire for appellate review." Id. If the adjudicative

determination involves more than one issue, the NOD must be sufficiently specific to identify the

specific determination with which the appellant disagrees. Id.

The NOD must be filed by the appellant or a representative within one year "from the date

of mailing of notice of the result of initial review or determination." 38 U.S.C. § 7105(b)(1);

see 38 C.F.R. § 20.302(a) (2005) ("The date of mailing the letter of notification of the

determination will be presumed to be the same as the date of that letter for purposes of determining

whether an appeal has been timely filed."). An NOD postmarked before the expiration of the

one-year period will be accepted as timely. 38 U.S.C. § 7105(b)(1). If the postmark is unavailable,

it is presumed that any written document required to be "filed within a specified period of time,"

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which includes an NOD, was mailed five days prior to the actual receipt of the document by the

RO, excluding Saturdays, Sundays, and legal holidays. See 38 C.F.R. § 20.305(a), (b) (2005).

If an NOD is not filed within the one-year time limit, the RO decision becomes final.

38 U.S.C. § 7105(c); see Rowell v. Principi, 4 Vet.App. 9, 17 (1993). A failure to file a timely

NOD deprives the Board of jurisdiction to consider the merits of an appeal.

See 38 U.S.C. § 7105(c); Garlejo v. Brown, 10 Vet.App. 229, 232 (1997). The Board has an

obligation to ensure that it has jurisdiction over each case before it. See Marsh v. West,

11 Vet.App. at 469; 38 C.F.R. § 20.101(c), (d) (2005). Accordingly, the Board has authority to

assess its own jurisdiction. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) ("[I]t is

well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction

over each case before adjudicating the merits . . . . ").

Whenever a claimant protests an adverse determination with regard to the timeliness of an

NOD, the appropriate action is for the RO to issue an SOC on this issue. See 38 C.F.R. § 19.34.

An RO determination that an NOD has not been timely filed is an appealable issue.

See 38 C.F.R.§ 20.101(c) (2005) ("All claimants have the right to appeal a determination made by

the agency of original jurisdiction that the Board does not have jurisdictional authority to review

a particular issue."); 38 C.F.R. § 19.34 (2005) (providing that "whether a[n NOD] . . . has been

filed on time is an appealable issue"); see also 38 U.S.C. § 7104(a) (providing that "all questions

in a matter . . . subject to a decision by the Secretary shall be subject to one review on appeal to

the . . . Board").

The Board's determinations regarding notification and whether an appellant filed a timely

NOD are factual matters that the Court reviews under the "clearly erroneous" standard of review.

Mindenhall v. Brown, 7 Vet.App. 271, 274 (1994). Under this standard of review, a Board finding

of fact may not be reversed unless the Court, in reviewing all the evidence of record, "'is left with

the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski,

1 Vet.App. 49, 52 (1990) (quoting United States v. U. S. Gypsum Co., 333 U.S. 364, 395 (1948)).

When applying this standard, "'if the [Board's] account of the evidence is plausible in light of the

record viewed in its entirety, the [Court] may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently.'" Gilbert, supra (quoting

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Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)); see also Mariano v. Principi,

17 Vet.App. 305, 313 (2003) (applying "clearly erroneous" standard to assess, as directed by

38 U.S.C. § 7261(b)(1), Board's application of 38 U.S.C. § 5107(b) "equipoise standard").

B. The Presumption of Regularity

There is a presumption of regularity that public officers perform their duties "'correctly,

fairly, in good faith, and in accordance with law and governing regulations.'" Ala. Airlines,

Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993) (quoting Parsons v. United States, 670 F.2d

164, 166 (Ct. Cl. 1982)). In applying the presumption of regularity, courts presume that, in the

absence of clear evidence to the contrary, public officials have properly discharged their official

duties. See Ashley v. Derwinski, 2 Vet.App. 62, 64-65 (1992); see also Davis v. Brown, 7 Vet.App.

298, 300 (1994); Saylock v. Derwinski, 3 Vet.App. 394, 395 (1992).

This Court has applied the presumption of regularity to processes and procedures

throughout the VA administrative process. See, e.g., Crain v. Principi, 17 Vet.App. 182, 186

(2003) (applying the presumption of regularity to RO's mailing of an SOC to a veteran);

Redding v. West, 13 Vet.App. 512, 515 (2000) (applying the presumption of regularity as to

whether RO received the veteran's power of attorney); Baldwin v. West, 13 Vet.App. 1, 5-6 (1999)

(applying the presumption of regularity as to whether RO examined and considered service

medical records); Schoolman v. West, 12 Vet.App. 307, 310 (1999) (applying the presumption of

regularity as to whether RO sent to claimant the application form for dependency and indemnity

compensation); Davis, 7 Vet.App. at 300 (applying the presumption of regularity to the BVA's

mailing of a copy of a BVA decision to a veteran); Mindenhall, 7 Vet.App. at 274 (applying the

presumption of regularity to a RO's mailing of a VA decision to a veteran).

Although the presumption of regularity "usually runs in favor of the government, it is

equally applicable and appropriately applied in favor" of individuals who are litigating against the

Government. Ala. Airlines, 8 F.3d at 796 (holding that the presumption of administrative

regularity ran in the airline's favor where the airline challenged Government's postpayment audits

of airline transportation bills). Indeed, this Court has applied the presumption of regularity so as

to benefit an appellant. In Woods v. Gober, 14 Vet.App. 214, 218 (2000), the appellant argued that

he was entitled to an effective date earlier than 1989 for an award of service connection for PTSD

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because he had not received notice of a 1985 RO denial of service connection.

The Secretary in Woods argued that under the presumption of regularity of mailing of RO

decisions, VA was presumed to have mailed a copy of the February 1985 RO decision to the

appellant at his last-known address. See Woods, 14 Vet.App. at 221. The Court held that the

presumption of regularity applied to two VA actions: (1) The RO's mailing of the

February 11, 1985, RO decision; and (2) a VA Medical Center's (VAMC's) photocopying and

transmitting to the RO in 1985 a January 1985 VAMC medical record that contained an address

different from the one the RO had on file when it mailed the February 1985 RO decision to the

veteran. Id. at 220. The Court then held that the presumption of regularity that applied to the RO's

mailing of the February 1985 RO decision was rebutted when that mail was returned to VA as

undeliverable. Id. Accordingly, the burden of proof shifted to VA to establish that it had

discharged its duty to notify the veteran of the February 1985 decision. Id. Furthermore, the Court

held that VA failed to sustain this burden because the January 1985 VAMC medical record that

was transmitted to the RO in 1985 contained an address to which the RO could have mailed the

February 1985 RO decision, an address that was different from the address to which the RO had

mailed the February 1985 decision, which was returned to VA as undeliverable. Id.

The Court in Woods arrived at this conclusion even though the record on appeal (ROA)

contained two copies of the January 1985 medical record: A copy received by the RO in 1985 that

did not show any mailing address for the veteran; and a copy received by the RO in 1989 that did

show the veteran's new mailing address. The Court held that the application of the presumption

of regularity to the VAMC's transmittal of the January 1985 medical record to the RO in 1985

"serves to show that the 1985 and 1989 copies are copies of the same document and that the

contents of each are the same, including the showing of the 1985 address." Id. It concluded that

the discrepancy in the ROA between the two copies of the January 1985 medical record

"reflect[ed] only a problem in copying that document for purposes of creating the ROA, and that

such absence [of the mailing address] certainly is not sufficient to rebut this second application of

the presumption as to the address being a part of the 1985 copy." Id. Consequently, the effect of

the application of the presumption of regularity of the VAMC 's photocopying of the VAMC

medical records led the Court to hold that the Secretary did not properly notify the veteran of its

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February 1985 RO decision. Id.

III. ANALYSIS

A. Presumption of Regularity as Applied to the RO's August 1995 SOC

The Court holds that the presumption of regularity applies to the RO's issuance of the

August 1995 SOC addressing the merits of the appellant's underlying claims. The RO followed

the procedures established by VA for when a timely NOD is filed and not those procedures that

the RO is required to follow when an NOD is filed out of time. Accordingly, for the reasons stated

below, we reverse the BVA's conclusion that the presumption of regularity did not apply to the

RO's issuance of the statement of the case on the merits of the underlying claims. Whether the

presumption of regularity attaches to the public actions of a public official is a question of law that

the Court reviews de novo. 38 U.S.C. § 7261(a)(1); see Smith v. Gober, 14 Vet.App. 227, 230

(2000) (stating that the Court reviews questions of law de novo without any deference to the

Board's conclusions).

The August 1995 SOC identified the issues on appeal as involving service connection for

a back disorder and PTSD – issues identified in the appellant's NOD. R. at 32. The RO is

obligated by law to issue an SOC only after a timely NOD is filed. See 38 U.S.C. § 7105(d)(1)

("Where the claimant, or the claimant's representative, within the time specified . . . , files a[n

NOD] . . . such agency will take such development or review action as it deems proper . . . . If

such action does not resolve the disagreement . . . , such agency shall prepare a[n SOC].");

Acosta v. Principi, 18 Vet.App. 53, 56 (2004); 38 C.F.R. § 19.26 (2005). It must therefore be

presumed that the RO issued the SOC in this case only after it had made a determination that the

NOD was either received or postmarked within the one-year appeal period.

The SOC indicates that the NOD was received by the RO on April 19, 1995, which is more

than one year after the April 4, 1994, mailing of the RO decision denying the appellant's

service-connection claims. Because the NOD was not received within the one-year appeal period,

the RO presumably would not have issued the SOC on the underlying merits of the claims unless

it had been able to determine that the NOD was postmarked prior to the expiration of the one-year

appeal period.

On the other hand, if the NOD was not postmarked within the one-year appeal period, the

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RO presumably would not have issued the SOC on the merits of the claims. Alternatively, if the

postmark was illegible or unavailable, the RO would have applied 38 C.F.R. § 20.305 to conclude

that the NOD was presumed to have been postmarked on April 12, 1995, five business days prior

to April 19, 1995, the date on which the NOD was date-stamped received by the RO. Because this

date is more than one year after the April 4, 1995, mailing of the notice of the RO decision to the

appellant, the NOD would have been untimely. Under either scenario, the RO would have

followed the regular administrative procedure when an NOD is untimely: the RO would have

informed the appellant that the NOD was untimely and notified him that he could appeal the

timeliness decision. If the appellant had protested the determination that the NOD was untimely,

the RO would have issued an SOC on the issue of the timeliness of the appeal.

See 38 C.F.R. §§ 19.33, 19.34, 19.50-.52 (2005) (RO procedure when it questions timeliness of

NOD is to follow administrative appeal procedure). However, the RO did not question the

timeliness of the appellant's NOD and, in fact, no jurisdictional defect was noted by the RO.

Because the RO did not treat the NOD as untimely, but instead issued the SOC, it is presumed that

the SOC was issued in accordance with relevant law and regulation.

Having concluded that the presumption of regularity attaches to the RO's issuance of the

SOC, the Secretary bears the burden of proving, by clear evidence, that the appellant's NOD was

not timely filed. See Piano v. Brown, 5 Vet.App. 25, 27 (1993) (holding that clear evidence is

required to rebut the presumption of regularity); Ashley, supra. To meet this burden, the Secretary

must provide clear evidence that the appellant's NOD was not postmarked within the one-year

appeal period. Cf. Fluker v. Brown, 5 Vet.App. 296, 298 (1993) (holding that the BVA's use of

an incorrect address in mailing a copy of a Board decision constituted clear evidence to rebut the

presumption of regularity).

The question of what constitutes "clear evidence" needed to rebut the presumption of

regularity and whether the Secretary met his burden to establish that the NOD was not postmarked

within the one-year appeal period are questions of law, which this Court reviews de novo.

Crain, 17 Vet.App. at 189. As such, the Court is required to make an independent determination

of whether the record contains clear evidence of sufficient weight to rebut the presumption of

regularity and whether the Secretary has presented evidence showing that the NOD was not

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postmarked within the one-year appeal period. Id.; see also Woods, 14 Vet.App. at 220-21

(concluding that presumption as applied to Secretary's mailing of RO notice of decision to veteran

was rebutted and Secretary failed to meet his burden); Piano, 5 Vet.App. at 26-27 (holding that,

after the presumption of regularity of mailing was rebutted, Secretary did not meet his burden of

establishing that BVA decision was mailed to veteran as required by section 7104(e)).

Here, there is no clear evidence in the record that indicates that the appellant's NOD was

not postmarked within the one-year appeal period. The Board specifically found that the postmark

was not in the claims file. Moreover, the only evidence that tends to indicate the date on which

the NOD was postmarked is the affidavit of the appellant's attorney's secretary attesting that the

NOD was dated April 3, 1994, and that "[i]n the normal course of business, all mail is delivered

to the Post Office on a daily basis making the date of any letter the date on which the letter would

be postmarked." Id. Finally, the Board stated that "there is no indication that there is any

outstanding, existing evidence needed to fairly adjudicate the claim on appeal that has not been

obtained" and concluded that the record was fully developed on the timeliness issue. R. at 4-5.

Accordingly, on this record there is no clear evidence to rebut the presumption of regularity.

There is also no reason to remand this matter for the Board to determine in the first instance

whether the Secretary has sustained his burden to rebut the presumption of regularity.

See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (Court can address issues not decided

below); see also Crain, 17 Vet.App. at 194 (holding that, given that the presumption of regularity

of mailing was rebutted, the Court was better situated than the Board to determine whether the

Secretary had sustained his burden to establish that it had mailed an SOC to the veteran);

Vanerson v. West, 12 Vet.App. 254, 261 (1999) (noting that "typical parley of 'basic facts' and

'counterproof' involved with presumptions in an adversarial proceeding does not fit the VA

adjudication system where the very adjudicator, who is charged with assisting in the development

of the claim, would also bear the burden of rebutting the presumption").

IV. CONCLUSION

Because the presumption of regularity attached to the RO's action of issuing the SOC,

which the Secretary presumably would have done only if the NOD had been timely filed, and

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because the Secretary has not sustained the burden in rebutting the presumption of regularity, the

Court REVERSES the August 23, 2002, Board decision that determined that the appellant's NOD

was not timely filed and REMANDS the matter for expeditious further development and issuance

of a decision on the appellant's service-connection claims.

REVERSED AND REMANDED.

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