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Court Wins

CCK Wins Case on Behalf of Army Veteran in Court Reconsideration

February 5, 2021

Summary of the Case

This Veteran served honorably in the United States Army from January 1970 to April 1971.  In June 2016, the Veteran sought an increased disability rating for her service-connected PTSD, including entitlement to a total disability rating based on individual unemployability (TDIU), and service connection for several other conditions, but was denied by the regional office (RO).

Then, with the help of Chisholm Chisholm & Kilpatrick, the Veteran filed a timely Notice of Disagreement (NOD) as to all the denied claims.  In an August 16, 2017 Statement of the Case, the RO continued to deny her claim for an increased disability rating for PTSD, as well as entitlement to TDIU and service connection for the other conditions.

CCK Challenges Board Decision and Appeals to the CAVC

CCK asserted that VA failed to mail the Veteran’s representative (CCK) the August 2017 Statement of the Case (SOC), and so the team did not become aware of the SOC until November of 2017.  Immediately CCK notified VA’s Evidence Intake Center of the error and subsequently filed a VA Form 9 Substantive Appeal on the Veteran’s behalf for all issues listed in the SOC.  However, in a December 7, 2017 letter, VA found the Substantive Appeal untimely.

In response, CCK filed a Notice of Disagreement (NOD), arguing for the timeliness of the veteran’s appeal.  The Board of Veterans’ Appeals determined that the appeal was not timely, stating that the presumption of regularity applied, and the August 2017 SOC was properly mailed.  CCK then appealed the Board’s decision to the Court of Appeals for Veterans Claims (CAVC).

Court Agrees with CCK’s Arguments around Presumption of Regularity and VA Mailing Practices

The Veteran’s case revolved around the issue of timeliness of a Substantive Appeal, as well as the presumption of regularity and how it applies to VA’s mailing practices.  As such, CCK made two main arguments in support of the Veteran’s case.  The first was that the presumption of regularity should not attach to VA mailing practices because, as the Board conceded in this case, there are widespread problems regarding VA’s failure to mail correspondence.  CCK’s second argument posited that even if the presumption of regularity does apply, it was rebutted in this case.

While the Court disagreed with CCK on the first argument, stating that the presumption of regularity was properly applied, it agreed with CCK on the second.  The Court agreed with CCK that the presumption of regularity was rebutted based on the Board’s concession of widespread mailing problems, along with CCK’s statements of nonreceipt.

The Court also found that a remand for the Secretary to demonstrate actual mailing was ‘pointless’ due to his concessions at the oral argument. Accordingly, in the Court’s full decision, it reversed the finding that the presumption of regularity was not rebutted and remanded for the Board to make a new timeliness finding based on a correct understanding of the law.