Crumlich: Presumption of mailing SOC rebutted

Crumlich v. Wilkie, docket no. 17-2630 (June 6, 2019)

HELD: VA’s regulation, 38 C.F.R. § 20.302(b)(1), presumes that the date on the Statement of the Case (SOC) is the date it was mailed, if there is no date on the cover letter. The Court invalidated this portion of the regulation, find that it potentially conflicts with the statute that affords claimants 60 days to appeal an SOC from the date the SOC was actually mailed. The Court found that the undated SOC cover letter, the confusing instructions in the letter, and the absence of evidence showing when the SOC was actually mailed was clear evidence to rebut the presumption of regularity that VA followed its regular mailing practices.

SUMMARY: Veteran appealed a VA denial of benefits and VA issued a Statement of the Case (SOC), dated June 2, 2015. The cover letter accompanying the SOC stated that the claimant had 60 days from the date of the letter to appeal – but the letter was undated. On page 15 of the 18-page SOC, the RO included languagr from 38 C.F.R. § 20.302(b)(1), which states that the “date of the mailing of the [SOC] will be presumed to be the same as the date of the [SOC].” Based on that regulation, the veteran had until August 3, 2015 to submit his appeal.

On August 11, 2015, he filed his appeal, through counsel, explaining that the letter accompanying the SOC was undated and that he did not know when the appeal was due. He asked the RO to accept the appeal as timely.

The RO rejected the appeal as untimely and the veteran appealed that decision. The Board acknowledged that the cover letter was undated, but noted that the SOC was dated and contained the language of § 20.302(b)(1), and thus concluded that the RO properly closed the appeal.

The CAVC first discussed the competing presumptions presented in this case: (1) the regulatory presumption in § 20.302(b)(1) that presumes an SOC was mailed on the date of the SOC and (2) the judge-made presumption of regularity that presumes “that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations.” The Court determined that the regulatory presumption in § 20.302(b)(1) would apply in this case, since it “specifically addresses the date of the of mailing of the SOC, the precise issue in this case.”

Appellant challenged the validity of this regulation, arguing that it was inconsistent with its authorizing statute, 38 U.S.C. § 7105(d), which states that a claimant “will be afforded a period of sixty days from the date the [SOC] is mailed to file the formal appeal.” The Secretary conceded that the letters accompanying SOCs are sometimes dated later than the date of the SOC – and that the letter states that a claimant has 60 days from the date of the letter to appeal. The Secretary stated that the regulatory presumption applies in cases where the letter is undated. The Secretary conceded that, in this case, where the letter was undated, VA has no information about when the SOC was actually mailed or received. The Court found that the date on the letter is “clear evidence” of when the SOC was mailed – and that the regulatory presumption applies only when there is no date on the letter. The Court thus determined 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” – but rather it is used to “shield VA” in cases where it is actually unknown if the claimant received the statutorily mandated 60 days to file his or her appeal. The Court invalided the portion of § 20.302(b)(1) regarding the presumption that the SOC was mailed on the date on the SOC.

The Court next turned to the general presumption of regularity and assumed, without deciding, that it did apply and that the Secretary could rely on it. The presumption of regularity can be rebutted with “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” The Court found that the undated letter in this case and the Secretary’s concession that SOC letters are sometimes dated after the date of the SOC was “sufficient to show that, even assuming the Secretary has a regular procedure for dating and mailing SOCs, … that procedure was not followed in this case.” Additional evidence to rebut the presumption of regularity included the confusing instructions in the letter indicating that the letter was dated (when it was not) and the Secretary’s concession that he did not have any specific information about when the SOC was actually mailed.

Once the presumption of regularity has been rebutted, the burden shifts to the Secretary to show that the mailing was proper. Based on the undated letter and the absence of information regarding the actual mailing of the SOC, the Court found that the Secretary did not meet this burden. The Court remanded for the Board to determine when the Appellant received the SOC and whether it was timely appealed.

In a concurring opinion, Judge Pietsch expressed frustration at the Secretary’s actions in this case:

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 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. 



Mathis v. McDonald, docket no. 2015-7094 (Fed. Cir. Aug. 19, 2016)

HELD: The Federal Circuit denied the veteran’s petition for en banc rehearing of its prior (non-precedential) decision that declined to disavow the presumption of competence afforded to VA examiners. 

In a single-judge memorandum decision, the CAVC rejected the appellant’s arguments regarding the competency of the VA examiner who had provided a negative medical nexus opinion. See Mathis v. McDonald, docket no. 13-3410 (J. Lance, May 21, 2015) (Mathis I). The CAVC held that while the presumption of competency is rebuttable, the first step in doing so is to challenge the examiner’s competency. Because the veteran did not challenge the competency of the examiner at the Board or RO levels, the Court found that he had not met his burden to rebut the presumption. Id.

The veteran appealed to the Federal Circuit, arguing that the Court should “disavow the presumption of competency as it applies to VA medical examiners,” asserting that “VA’s procedure for selecting qualified examiners is inherently unreliable because the VA broadly recommends assigning generalists except in unusual, ill-defined cases.” See Mathis v. McDonald, docket no. 2015-7094 (Apr. 1, 2016) (Mathis II). The Court, somewhat reluctantly, declined to reassess the presumption of competency, although it did discuss the line of relevant cases (Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); and Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013)), and noted that the appellant’s argument “presents some legitimate concerns.” Nevertheless, the Court found that it lacked “jurisdiction to make factual findings on appeal regarding the competency” of the VA examiner and “are bound by clear precedent to presume” the examiner’s competency.

In a separate opinion, one of the Federal Circuit judges concluded that “the entire court should review the case law concerning the presumption of competence with the objective of eliminating it.” The judge based his conclusion on VA’s general practice of not providing evidence of an examiner’s qualifications; the appearance that the presumption renders the competency of a VA examiner “unreviewable”; the due process problem in requiring a veteran to challenge an examiner’s qualifications; VA’s “unknown” process in selecting examiners; and, most troubling, VA’s actions since the presumption has been applied. Specifically, since the presumption has been applied, VA has emphasized the use of non-specialists. VA has eliminated the requirement that reports be signed by a physician – now only requiring the signature of a “health care provider.” This judge also highlighted the recent evidence of the “irregularity” in VA’s process for selecting examiners as shown in the controversy surrounding TBI examinations being conducted by unqualified examiners.

Despite this well-crafted opinion, the Federal Circuit declined to rehear this appeal en banc. However, while the order declining en-banc review was only two pages long, the opinion includes an additional 29 pages of separate concurring and dissenting opinions questioning the ongoing validity of applying the presumption of administrative regularity in this context.

Advocacy note: The burden is still on the veteran to challenge the adequacy of an examination and/or the qualifications of the examiner. If the veteran feels that the examination was not adequate and/or the examiner was not qualified to be conducting the examination, the veteran must notify VA of these concerns in writing