Romero v. Wilkie, Case Number 19-3687, decided January 25, 2021 involves the presumption of regularity as it applies to VA mailings. The case specifically deals with whether a Statement of the Case was sent to the veteran and his attorney.
"The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. The presumption of regularity reflects Federal courts' deference to the other branches of Government and efficiency concerns. But it is not a carte blanche. After all, the presumption of regularity is rebuttable.” Id. at *1.
The Court stated:
We hold as a matter of law that in this case the existence of VA's legal duty to mail an SOC to a claimant's representative was enough for the presumption to attach, and no further evidence was required to trigger the presumption. Though the Board correctly determined that the presumption applied here, the Board erred in evaluating the sufficiency of appellant's rebuttal evidence. We also hold as a matter of law that in this case appellant rebutted the presumption based on the Board's favorable factual finding that she had produced substantial evidence of a widespread problem with VA not mailing correspondence plus CCK's statement of nonreceipt.
Id. at *2.
On remand, the Board was instructed to “make a new timeliness finding based on a correct understanding of the law.” Id. at *2. However, the Court “stress[ed] that we do not hold that VA's mailing practices are irregular as a broad, categorical matter. Rather, we conclude that appellant in this case rebutted that presumption based on the evidence she submitted and the Board's factual determinations about that evidence.” Id.
This deals with an August 16, 2017 SOC which denied several claims. The Appellant asserted the SOC was never sent to the veteran’s attorney. The SOC was discovered by the attorney while he was reviewing the online claims folder and the next day he notified the VA of the problem and argued the VA should not be entitled to a presumption of regularity and alleged ongoing problems with the VA’s mailing system. Four days after discovery, the attorney submitted a Form 9. This resulted in a letter finding the form untimely and then a NOD as to that determination. A SOC affirmed the untimely determination and resulted in this appeal to the court.
The appellant’s attorney submitted three documents: (1) a GAO report noting VA mailing issues, (2) a sworn affidavit from the attorney listing instances where the VA failed to mail him case specific documents, and (3) a sworn affidavit from the executive director of a veteran’s advocacy group (NOVA) discussing mailing failures. The Board considered whether this information rebutted the presumption of regularity and stated despite the evidence of a widespread VA mailing problem, there is no clear evidence that VA did not mail the SOC. Id. at *4-5. The Board focused on the need for evidence specific to the veteran’s file as opposed to a general pattern b the VA.
The Court began its analysis by stating:
We hold as a matter of law that the presumption of regularity applied in this case, as the Board concluded. But we also hold as a matter of law that appellant rebutted the presumption by clear evidence consisting of the Board's favorable factual finding that the appellant had produced "substantial evidence . . . that reflects a widespread problem with VA not mailing correspondence," which we cannot review, plus CCK's statement of nonreceipt. Therefore, we will reverse the Board's conclusion that appellant did not rebut the presumption.
Id. at *10-11.
As a step one determination, the Court determines the presumption of regularity applies. At step two, the Court looked at whether the presumption was rebutted. It noted the standard of review is de novo. It then stated:
To be clear, the inquiry here is
whether appellant has produced clear evidence sufficient to persuade us that we
should not continue to presume that VA did its duty and instead should require
VA to prove that it did its duty in this case. Though a statement of nonreceipt
standing alone is not enough to rebut the presumption, a statement of
nonreceipt coupled with other evidence
can be. Other evidence can include, for
example, "clear evidence to the effect that VA's 'regular' mailing
practices are not regular or that they were not followed."
Id. at *15.
The Court noted the Board found substantial evidence that reflects a widespread problem with VA not mailing correspondence. Id. at *15. “And so, the Board's findings about VA's mailing practices lead us to hold that in this case appellant presented clear evidence sufficient to rebut the presumption that VA did its duty to mail CCK the SOC.” Id. at *16.
The Court then notes:
The Secretary insists that we can review or should ignore the Board's statement ("substantial evidence . . . that reflects a widespread problem with VA not mailing correspondence") because the statement does not constitute a favorable factual finding. But it does. And this Court is not permitted to review a "finding of material fact [favorable] to the claimant."
Id. at *16.
As to the Board’s ability to make a favorable finding and then rule against the veteran, the Court stated:
Whether the Board then ignored its own finding and appellant's rebuttal evidence entirely or gave them less weight is unclear from its analysis. Either way, its failure to appreciate the legal significance of its own factual finding arose because it understood this Court to have "consistently indicated that evidence that clearly rebuts the presumption should be specific to the facts of the case at hand."
***
There the Board erred because it
misunderstood our caselaw. The law that the Board cited merely says what
evidence is sufficient—not what is necessary—to rebut the presumption of regularity.
Id. at *17-18.
The Court then concluded that after the burden shifted to the Secretary to prove mailing, he did not carry his burden. Id. at *20. It noted: “this evidence speaks to the fact that the SOC was drafted and addressed, not to whether it was subsequently placed in the mail; in other words, the Secretary asks us to infer from evidence of drafting that the SOC was mailed to the appellant's counsel.” Id.
This case on one hand reaffirms the presumption of regularity as to mailing and tries to limit the holding, but also offers a blue print on how to attack such presumption.
Decision by Judge Allen and joined in by Judges Meredith and Falvey.
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