Crumlich: Presumption of Regularity in Mailing Defeated!

Crumlich v. Wilkie, Case Number 17-2630, decided June 6, 2019 considers the timeliness of a Form 9 and the presumption of regularity.

The veteran received a statement of the case (SOC) which he wanted to appeal from.  The date on the SOC itself was dated June 2, 2015, but the notification letter sent with it was not dated as it usually is.  Instructions on the notification letter said he had 60 days for file a Form 9.  A Form 9 was filed on day 70.  The veteran asserted he opened the decision and called an attorney within days and after an appointment filed the Form 9.  This was all done within days.  The VA determined the Form 9 was untimely.  The failure to have a date on the notification letter was brought to its attention but it relied on the date of the SOC and stated that VA regulations call for the notification letter to be generated and the decision sent the same day as the SOC was generated (as an aside, every practitioner in this area know that does not happen).

The veteran filed a notice of disagreement from the decision that the Form 9 was untimely and ultimately the Board confirmed the decision that the Form 9 was untimely. 

The VA relied on 38 C.F.R. § 20.302(b)(1) further provides, in relevant part, that "[t]he date of mailing of the [SOC] will be presumed to be the same as the date of the [SOC]." The Court found 20.302 applicable but  noted concessions by the Secretary.  The Court determined:

these concessions reflect that it is the date on the notice letter, not the date on the SOC

itself, that is "clear evidence" of when the SOC was mailed, and that VA invokes the regulatory presumption only when that clear evidence is absent. This, in turn, leads to the conclusion that the regulatory presumption is not applied to ensure that all claimants receive 60 days from the date the SOC "is mailed" to file a Substantive Appeal. 38 U.S.C. § 7105(d)(3). Rather, it is applied to shield VA in the event that it is unknown to the Agency whether the claimant received the statutorily mandated time to perfect his or her appeal. In other words, it may absolve VA of responsibility for issuing an undated SOC cover letter.

Because VA's concessions reflect that the regulatory presumption only operates in circumstances where VA does not know whether the date of mailing of the SOC is later than the date on the SOC itself, the application of the presumption results in shortening the 60-day appeal period mandated by Congress when the date of mailing was, in fact, later.  Therefore, the Court holds that that part of § 20.302(b)(1) that contains a presumption of the date of mailing of the SOC is invalid.

Id. at *11-12

The Court then noted the appellant rebutted the presumption of regularity by stating:

The Secretary asserted at oral argument that it is his regular practice to date notice letters accompanying SOCs with the date the SOC is mailed, which should be the same date as that listed on the SOC itself. Oral Argument at 49:23-:31. It is undisputed that the notice letter in this case was undated, R. at 718-19, and the Secretary conceded that, in practice, notice letters are sometimes dated later than the date of the SOC itself, id. at 46:26-:44. This alone is sufficient to show that, even assuming the Secretary has a regular procedure for dating and mailing SOCs as he described, that procedure was not followed in this case. See Woods, 14 Vet.App. at 220; Ashley, 2 Vet.App. at 309. But there are additional reasons that the presumption of regularity would not stand in this case. For example, as the Board found and the appellant points out, the cover letter itself "confusingly" indicates that it is dated, but it is not.

Id. at *12-13.  It further determined the Secretary could not carry the burden of showing compliance with mailing procedures and thus the Court set aside the Board decision and remanded.

First, as the Court notes the statute and regulations in this case were amended by the Veterans Appeals Improvement and Modernization Act of 2017 and so the Court’s decision was limited in scope.

Second, this is an important case that provides a roadmap for challenging dates.  It also provides helpful concessions by the Secretary about actual versus procedural practices about mailing.

Third, the case really shows us how the Court has grown frustrated by the Secretary’s intransigence in some of these cases.  This is best summed up in Judge Pietsch’s one paragraph concurring opinion:

I write separately to record my frustration at the Secretary's refusal to waive the 60-day filing period in this case and allow the appellant's appeal to proceed. His decision to take a hard line even though he mailed the appellant an incorrect, improperly prepared, and plainly misleading notice letter caused a lot of resources to be wasted—not the least the appellant's time—all to receive a decision that costs VA the use of a regulation. If the paternalistic nature of VA is to be more than mere platitude, cases like this should be handled in a more empathetic manner.

Id. at *15.

Decision by Chief Judge Davis and joined in by Judges Pietsch and Meredith.

To know more about whether Thomas Andrews can help you, please visit my website.