The Veteran served in the U.S. Army on active duty between July 2006 and July 2009. In 2013, he filed a claim to service connect a back condition and PTSD, among other conditions. The Regional Office (RO) denied service connection for his back and PTSD. He then filed a Notice of Disagreement.
In 2015, VA issued a Statement of the Case (SOC) again denying service connection. Accompanying the SOC was a notification letter. The notification letter told the Veteran that he had 60 days from the date on the notification letter to file an appeal to the Board of Veterans’ Appeals (Board). Significantly, VA did not date the notification letter. VA did, however, include the date of June 2, 2015, on the separate SOC.
The Veteran was confused by the notification letter and was unsure of his appeal deadline. He hired Attorney Timothy R. Franklin, and, on August 11, 2015, Attorney Franklin appealed to the Board of Veterans’ Appeals (Board).
Issues Underpinning the Veteran’s Appeal
Before further describing facts of the case, it’s necessary to understand relevant law and VA procedures.
After VA mails an SOC, it must give claimants 60 days from the date of mailing to file an appeal. If there’s no proof of the actual date of mailing, VA regulation 38 C.F.R. § 20.302(b)(1) allowed VA to presume that the date printed on the SOC was the same date that VA mailed the SOC.
VA does not always mail the SOC on the date printed on the SOC. Thus, VA sends an additional notification letter with every SOC noting the date of mailing. That notification letter also tells claimants they have 60 days from the date on the notification letter to file an appeal.
Finally, VA is entitled to the “presumption of regularity” when it mails documents. The presumption of regularity means that VA is entitled to the fact that it properly follows mailing procedures every time it mails documents. A claimant can disprove the presumption, though, if he or she can show that VA did not follow mailing procedures in his or her specific case. If a claimant disproves the presumption, VA then must prove that it correctly mailed documents to the claimant.
VA Admits Error, Still Refuses to Accept Appeal as Timely
The RO denied Attorney Franklin’s August 2015 appeal, relying on the mailing date presumption in § 20.302(b)(1). The RO argued that the Veteran’s appeal had to be denied because he did not file the appeal within 60 days of the date on the SOC.
Attorney Franklin next appealed to the Board, which agreed with the RO. Even though VA provided confusing instructions to the Veteran and the law allows the Board to accept appeals filed after the 60-day deadline, the Board refused to use that power.
Attorney Franklin then appealed to the U.S. Court of Appeals for Veterans Claims (CAVC).
CAVC Invalidates the Mailing Date Presumption in § 20.302(b)(1)
At the CAVC, Mr. Franklin argued that the mailing date presumption in § 20.302(b)(1) should be invalidated. He argued that the mailing date presumption does not ensure that veterans are always given 60 days from the date of mailing to file an appeal. He also argued that VA should not be entitled to the presumption of regularity because it sent the Veteran a notification letter that was undated.
On June 6, 2019, the CAVC issued a decision in the Veteran’s favor. The CAVC agreed with Attorney Franklin and invalidated the mailing date presumption in § 20.302(b)(1). The CAVC also agreed that VA was not entitled to the presumption of regularity in the Veteran’s case because it did not date the notification letter. On remand to the Board, the CAVC ordered the Board to determine when the Veteran actually received the SOC and then determine if the August 2015 appeal was filed within 60 days of receiving the SOC.
Additionally, one judge wrote a separate concurrence to express her frustration that VA refused to waive the 60-day deadline in the Veteran’s case, especially given the “incorrect, improperly prepared, and plainly misleading” notification letter that VA sent the Veteran.
Interestingly, in 2017, VA granted the Veteran service connection for PTSD and a back condition. After the CAVC decision, the Veteran can still win additional retroactive benefits if the Board determines on remand that the August 2015 was timely.
Veterans Should Not Be Afraid to Appeal to the CAVC
Like the Veteran’s claim here, your VA claim can take many turns as it winds through the complicated VA adjudication process. Something as simple as an undated notification letter can turn into a complicated and lengthy court process.
We represent veterans at the CAVC for no charge and offer free consultations. But act fast, whether you contact us or another accredited attorney, because you only have 120 days from the date of the Board decision to appeal to the CAVC.
Link to Precedential CAVC Decision