Burgan v. McDonough, Case Number 23-7869, decided August 23, 2024 is a decision by the Veterans Court regarding the presumption of regularity related to the filing of a notice of appeal.
The veteran’s attorney provided both a PO box and street address on the appointment form. The Board denied an appeal in a September 2021 decision and listed only the physical address and not the P.O. box. The veteran appointed a VSO in January 2022 for another claim, which caused the attorney to lose access to the electronic claims file. The attorney’s access was restored in September 2023 when the veteran appointed him again and counsel filed the NOA in December 2023.
As to whether the veteran had rebutted the presumption, the Court noted “an error in addressing the mail is not alone sufficient to rebut the presumption; rather the error must impact delivery.” Id. at *8. Reviewing the Domestic Mail Manual guidance on dual addresses, i.e., those containing both a P.O. box and a street address, the Court noted no requirement that both must be provided for the mail to be deliverable. Rather, this guidance states that the priority is for the USPS to deliver the mail to the address directly above the city and the state in the address, and “the party addressing the mail must therefore use the ZIP Code for whichever location is listed immediately about the city and state.” Id. at *9. The Court found that, since appellant provided no authority for the position that omitting the P.O. box or ZIP code for the P.O. box affected delivery and the Board addressed it to his proper street address and ZIP code, he did not meet the burden of demonstrating the omission was consequential to delivery sufficient to rebut the presumption. Ultimately, the Court found the NOA was untimely and granted the Secretary’s motion to dismiss.
Decision by Judge Pietsch, Greenberg and Meredith.
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