            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

                                                  No. 17-2630

                                   MATTHEW W. CRUMLICH, APPELLANT,

                                                         V.

                                         ROBERT L. WILKIE,
                              SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                             On Appeal from the Board of Veterans' Appeals

(Argued January 15, 2019                                                                 Decided June 6, 2019)

        Timothy R. Franklin, of Boulder, Colorado, for the appellant.

        Brandon T. Callahan, with whom James M. Byrne, General Counsel; Mary Ann Flynn,
Chief Counsel; James B. Cowden, Deputy Chief Counsel, were on the brief, all of Washington,
D.C., for the appellee.

        Before DAVIS, Chief Judge, and PIETSCH and MEREDITH, Judges.

       MEREDITH, Judge, filed the opinion of the Court. PIETSCH, Judge, filed a concurring
opinion.

        MEREDITH, Judge: The appellant, Matthew W. Crumlich, through counsel appeals a
July 31, 2017, Board of Veterans' Appeals (Board) decision that found that he had not filed a
timely Substantive Appeal with respect to an August 2013 VA regional office (RO) decision that
denied entitlement to benefits for post-traumatic stress disorder (PTSD) and residuals of a low
back injury.1 Record (R.) at 1-10. This appeal is timely, and the Court has jurisdiction to review
the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
        On August 14, 2018, the matter was referred to a panel of the Court to consider, among
other questions, whether an allegedly defective notice regarding the time to file a Substantive


        1
           In April 2017, while the appellant's appeal of the timeliness of his Substantive Appeal was pending before
the Board, VA granted the appellant's claims and assigned a 50% disability rating for PTSD and a 10% disability
rating for a lumbosacral strain, both effective April 25, 2016. R. at 160. In the July 2017 decision on appeal, the
Board remanded the matter of entitlement to an effective date prior to April 25, 2016, for the award of benefits for
PTSD and residuals of a low back injury. R. at 7-8. The remanded matters are not before the Court. See Breeden v.
Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (a Board remand "does not represent a final decision over
which this Court has jurisdiction"); Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board
may not be reviewed by the Court).
Appeal violated the appellant's right to due process. On September 13, 2018, the parties submitted
supplemental memoranda of law. The Court heard oral argument on January 15, 2019, and issued
an order on January 17, 2019, directing the Secretary to show cause why that part of 38 C.F.R.
§ 20.302(b)(1) that creates a presumption as to the date of mailing of a Statement of the Case
(SOC) should not be invalidated. The Secretary filed his response on February 19, 2019.
         Because the operation of the presumption of mailing of an SOC in § 20.302(b)(1) conflicts
with a statutory mandate in some cases, the Court deems that portion of the regulation invalid.
Further, even assuming that the ordinary presumption of regularity applies, the appellant would
have successfully rebutted that presumption, and the Secretary has conceded that he cannot carry
his burden of establishing proper mailing of the SOC. Therefore, the Court will set aside the
Board's determination that the appellant's Substantive Appeal was untimely, vacate the Board
decision, and remand the matter for further proceedings consistent with this opinion.2


                                                 I. BACKGROUND
         The appellant served on active duty in the U.S. Army from July 2006 to July 2009,
including service in Afghanistan. R. at 229. In November 2011, he filed claims for benefits for,
among other conditions, PTSD and a low back injury. R. at 1354-57. In August 2013, the RO
denied his claims. R. at 895-902.
         The appellant, in April 2014, filed a Notice of Disagreement (NOD) with that decision.
R. at 875-76. VA prepared an SOC dated June 2, 2015, and mailed it to the appellant. See R. at
720 37. The notice letter accompanying the SOC advised the appellant that, to complete his
appeal, he had to file a Substantive Appeal within 60 days of the date of the letter, but the letter
was undated. See R. at 718-19. On page 15 of the 18-page SOC, the RO included the text of
38 C.F.R. § 20.302, which, at that time, provided that "[t]he date of mailing of the [SOC] will be
presumed to be the same as the date of the [SOC]." R. at 734 (quoting 38 C.F.R. § 20.302(b)(1)
(2014)3). Sixty days from June 2, 2015, was August 1, 2015, a Saturday; accordingly, applying

         2
           Ordinarily, if the Board determined on remand that the appellant's Substantive Appeal was timely, it would
be required to consider the appellant's claims on the merits. Here, however, the appellant's claims were granted during
the pendency of the appeal of the timeliness of the Substantive Appeal. As the Secretary conceded at oral argument,
a reversal of the Board's timeliness determination may result in an effective date as early as November 2011, the date
of the appellant's original claim. Oral Argument at 35:00-:15. As noted above, the Board in the decision on appeal
remanded the matter of the proper effective date for the award of benefits.
         3
             The Court will discuss the subsequent changes to this regulation in Part II.B below.



                                                            2
the regulatory presumption, the Substantive Appeal would have been due on or before Monday,
August 3, 2015.
       On August 11, 2015, the appellant, through current counsel, filed a Substantive Appeal
referencing the August 2013 rating decision as the decision being appealed. R. at 694. In the
Substantive Appeal, the appellant's counsel wrote:
       Letter accompanying the [SOC] is undated—see attached. [The appellant] called
       to inquire about his case on the exact date of this [VA] Form 9[, Appeal to the
       Board of Veterans' Appeals,] and asked how he was supposed to know when the
       Form 9 was due if the letter was undated. After submitting [the appellant's] signed
       [VA Form] 21-22a and fee agreement, our office filed the Form 9 immediately.
       Eve[n] though the SOC is dated, the letter was not[;] therefore[,] this Form 9 should
       be accepted as timely.

Id.
       Later in August 2015, the RO sent the appellant a letter advising him that his Substantive
Appeal was untimely because it had been submitted more than 60 days after the date listed on the
SOC. R. at 680-84. The RO further informed the appellant that its August 2013 decision on his
claims was final. R. at 680. The appellant filed an NOD with the RO's timeliness determination,
arguing that the RO had erred in finding his Substantive Appeal untimely in light of the undated
notice letter that accompanied the SOC. R. at 676-77. The appellant also submitted an inquiry to
the Deputy Under Secretary about his appeal and, in response, VA "apologize[d] for th[e]
oversight" that the "cover letter to the SOC was undated." R. at 653. The appellant subsequently
perfected his appeal of the timeliness determination, noting that VA had not considered whether
equitable tolling of the time to file the Substantive Appeal was warranted under the circumstances
of this case. R. at 537.
       The appellant testified at a May 2017 hearing before a Board member that, "as soon as" he
received the undated notification letter and dated SOC, he contacted his current counsel to file his
appeal. R. at 137; see R. at 128 (counsel noting that the appellant "may have opened [the letter] a
day or two before" he contacted counsel). The appellant's counsel advised the Board member that
he was aware of SOCs in other veteran-clients' cases in which the date on the notification letter
post-dated the date on the SOC by 1, 6, 7, and 34 days, and offered to submit copies of those
documents as evidence.4 R. at 124-25. He reiterated the appellant's contention that his Substantive


       4
           These documents do not appear in the record of proceedings.



                                                        3
Appeal should be deemed timely in light of VA's failure to date the notice letter that accompanied
the SOC and the confusing instructions in the undated notice letter that his Substantive Appeal
was due 60 days from the date of the letter. R. at 125.
       In July 2017, the Board issued the decision on appeal. The Board noted that, although the
SOC cover letter was undated, the SOC itself bore a date of June 2, 2015. R. at 5. The Board
further noted that the SOC contained the text of § 20.302(b)(1), providing that the date of mailing
of the SOC would be presumed to be the date on the SOC for purposes of determining whether a
Substantive Appeal is timely. R. at 6. The Board concluded that, because VA received the
appellant's Substantive Appeal 70 days after the June 2, 2015, date printed on the SOC itself, the
RO had properly closed the appellant's appeal of the August 2013 rating decision. R. at 7. The
Board did not consider whether equitable tolling or waiver of the time to file the Substantive
Appeal was warranted under the circumstances. This appeal followed.


                                          II. ANALYSIS
                                       A. Parties' Arguments
       In his briefs, the appellant argued that (1) VA's failure to date the cover letter that
accompanied the SOC denied him due process; (2) the 60-day time limit to file the Substantive
Appeal should not apply in his case because VA failed to comply with its own procedures, which
rebuts the presumption of regularity; and (3) the Board erred in declining to waive the timeliness
issue in this case. Appellant's Brief (Br.) at 4-12. In response, the Secretary contended that (1) the
appellant received the due process to which he was entitled; (2) the applicable presumption in this
case is not the judicially created presumption of regularity, but the regulatory presumption of
§ 20.302(b)(1), and therefore the date of mailing of the SOC in this case is presumed to be the date
of the SOC itself; and (3) the Board was not required to waive the timeliness issue in this case in
light of § 20.302(b)(1). Secretary's Br. at 5-14. The Secretary urged the Court to affirm the Board
decision.
       In the August 2018 request for supplemental memoranda, the Court asked the parties to
address whether (1) the regulatory presumption in § 20.302(b)(1) is a rebuttable presumption;
(2) the regulatory presumption controls over the "judicially-created" presumption of regularity;
(3) an undated notice letter accompanying an SOC is insufficient to provide notice to the claimant
about how to file a Substantive Appeal; and (4) the inclusion of the text of § 20.302(b)(1) in the



                                                  4
body of the SOC cures any deficiency created by VA's failure to date the notice letter
accompanying the SOC. With respect to question one, the parties agreed that the regulatory
presumption is rebuttable with clear evidence to the contrary.          Appellant's Supplemental
Memorandum (Supp. Memo.) at 3-7; Secretary's Supp. Memo. at 1-5. Turning to question two,
the appellant contended that there is no basis to prefer the regulatory presumption over the
judicially created presumption of regularity, Appellant's Supp. Memo. at 7-9, while the Secretary
asserted that the regulatory presumption controls because it is specific to the situation at hand,
Secretary's Supp. Memo. at 5-9. On question three, the parties also disagree: The appellant argued
that the undated notice letter was insufficient to provide him proper notice of how to file his
Substantive Appeal because it was misleading and confusing. Appellant's Supp. Memo. at 9-10.
The Secretary countered that the undated notice letter was not insufficient because the appellant is
charged with knowledge of the law, and the law is clear both that a Substantive Appeal is due
within 60 days from the date the SOC is mailed and that the SOC is presumed mailed on the date
listed on the SOC itself. Secretary's Supp. Memo. at 9-10. Finally, the appellant argued that the
inclusion of the text of § 20.302(b)(1) in the body of the SOC cannot cure VA's defective notice
because a notice error can only be cured by new, correct notice or by a showing that the claimant
had actual knowledge. Appellant's Supp. Memo. at 10-11. For his part, the Secretary contended
that the inclusion of the regulatory presumption in the SOC was sufficient to ensure that the
appellant had the information necessary to meaningfully participate in the adjudication of his
claims. Secretary's Supp. Memo. at 11-13.
       At oral argument, the appellant's counsel asserted for the first time that § 20.302(b)(1) is
inconsistent with its authorizing statute, 38 U.S.C. § 7105(d). Oral Argument at 5:06-:15.
Specifically, he argued that the Court has held that section 7105(d)(3) is unambiguous in that it
provides 60 days for the claimant to file a Substantive Appeal from the date the SOC is mailed,
not the date of the SOC itself, as the regulation provides. Id. at 5:15-:49. He also contended that,
because section 7105(d) pertains to the required content of the SOC and does not indicate that
appellate information (such as the time to file the Substantive Appeal) should be included, the
Secretary's inclusion in the SOC of information about the regulatory presumption regarding
mailing violates 38 C.F.R. § 19.30(b), which provides that appellate information will be provided
"with" the SOC, not "in" the SOC. Id. at 8:37-9:25. Therefore, he argued, the cover letter—
provided "with" the SOC—is the controlling statement of when the appellant's Substantive Appeal



                                                 5
was due and, because it is undated, there was no way for him to discern the due date for his
Substantive Appeal. Id. at 10:44-11:33.
       The Secretary asserted at oral argument that the appellant was provided all the information
necessary to file his Substantive Appeal in a timely manner, namely that the SOC was dated June 2,
2015, on all 18 pages and included the full text of § 20.302. Id. at 32:16-:20; 32:51-:56; 39:56-
40:02. He argued that, because the cover letter and the SOC were included in the same mailing, a
reasonable person would have understood that he had to file his Substantive Appeal within 60 days
from the date on the SOC itself. Id. at 33:56-34:18. The Secretary also argued that the Board was
required to give effect to the regulatory presumption of § 20.302(b)(1) and presume that the SOC
was mailed on June 2, 2015. Id. at 36:22-:30.
       Following oral argument, the Court issued an order directing the Secretary to show cause
why the Court should not invalidate that part of § 20.302(b)(1) that creates the presumption that
the date of mailing of the SOC is the date of the SOC itself as inconsistent with section 7105(d)(3),
§ 19.30(b), and the Secretary's own practice. In response, the Secretary argued that the Court
should not invalidate any part of § 20.302(b)(1) because the appellant "has failed to demonstrate
that [the] presumption operates to violate his right to due process of law." Response at 1. He
reiterated his belief that "the facts are clear that [the a]ppellant was provided with all the
information necessary to meaningfully participate in his appeal." Id. at 3. The Secretary also
noted that the appellant did not argue in his opening brief that § 20.302(b)(1) conflicts with section
7105(d), § 19.30(b), or the VA Adjudication Procedures Manual. Id. at 6. Accordingly, he argued
that the Court should refuse to entertain the appellant's arguments regarding the validity of
§ 20.302(b)(1). Id. at 6-7.
                                               B. Law
       At the outset, we note that the statute and regulations at issue in this case have been
amended effective February 19, 2019, as part of VA's transition to a new appeals process. See
Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA), Pub. L. 115-55,
§ 2(q)(1), 131 Stat. 1105 (Aug. 23, 2017); 84 Fed. Reg. 2449 (Feb. 7, 2019) (providing notice that
the effective date of the new VA appeals system outlined in the VAIMA is February 19, 2019).
Accordingly, the Court's decision today has limited application to only those cases unaffected by
the VAIMA. All references to statutes and regulations in this opinion are to the versions in effect
in August 2015 when the appellant submitted his Substantive Appeal.



                                                  6
        As the Board explained, "[a] Substantive Appeal consists of a properly completed VA
Form 9 . . . or correspondence containing the necessary information." 38 C.F.R. § 20.202 (2015);
see R. at 5. By statute, a claimant "will be afforded a period of sixty days from the date the [SOC]
is mailed to file the formal appeal." 38 U.S.C. § 7105(d)(3) (2015). VA promulgated 38 C.F.R.
§ 20.302, which provides that a Substantive Appeal must be filed either within 60 days of the date
on which VA mails the SOC or within 1 year of the date of mailing of the "notification of the
determination being appealed," whichever is later. 38 C.F.R. § 20.302(b)(1) (2015). Section
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]." Id. "The agency of original jurisdiction may
close the case for failure to respond after receipt of the [SOC], but questions as to timeliness . . .
shall be determined by the Board." 38 U.S.C. § 7105(d)(3). The 60-day time limit "is not a
jurisdictional bar to the Board's adjudication of a matter" and is subject to either implicit or explicit
waiver by VA. Percy v. Shinseki, 23 Vet.App. 37, 44-45 (2009). The Court has also held that the
deadline for filing the Substantive Appeal may be equitably tolled. Hunt v. Nicholson, 20 Vet.App.
519, 524 (2006). Because we must avoid constitutional questions wherever possible, we address
the appellant's statutory and regulatory arguments first. See Bucklinger v. Brown, 5 Vet.App. 435,
441 (1993) ("It is '[a] fundamental and long-standing principle of judicial restraint . . . that courts
avoid reaching constitutional questions in advance of the necessity of deciding them.'" (quoting
Lyng v. Nw. Indian Cemetery Prot. Ass'n, 485 U.S. 439, 445 (1988))).
                                             C. Discussion
                                     1. Competing Presumptions
        In addition to the regulatory presumption regarding the date of mailing of an SOC in
§ 20.302(b)(1) on which the Secretary relies, there is also a general presumption of regularity "'that
public officers perform their duties correctly, fairly, in good faith, and in accordance with the law
and governing regulations.'" Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)
(quoting Parsons v. United States, 670 F.2d 164, 166 (Ct. Cl. 1982)); see Davis v. Brown,
7 Vet.App. 298, 300 (1994); Saylock v. Derwinski, 3 Vet.App. 394, 395 (1992); Ashley v.
Derwinski, 2 Vet.App. 62, 64-65 (1992). The appellant contends that the Court should apply this
general presumption. This Court has applied the presumption of regularity to processes and
procedures throughout the VA administrative process, including to the RO's mailing of an SOC.
See Crain v. Principi, 17 Vet.App. 182, 186 (2003); see also Redding v. West, 13 Vet.App. 512,



                                                   7
515 (2000) (applying the presumption of regularity as to whether the RO received the veteran's
power of attorney); Baldwin v. West, 13 Vet.App. 1, 5-6 (1999) (applying the presumption of
regularity as to whether the RO examined and considered service medical records); Schoolman v.
West, 12 Vet.App. 307, 310 (1999) (applying the presumption of regularity as to whether the RO
sent the claimant an application form for dependency and indemnity compensation); Mindenhall
v. Brown, 7 Vet.App. 271, 274 (1994) (applying the presumption of regularity to the RO's mailing
of its decision to a veteran); Davis, 7 Vet.App. at 300 (applying the presumption of regularity to
the Board's mailing of a copy of its decision to a veteran).
        The parties disagree as to which presumption applies in this case: The appellant argues that
the presumption of regularity controls, while the Secretary asserts that § 20.302 is applicable. The
Court is persuaded by the Secretary's assertion that, where competing legal authorities are
potentially applicable, the more specific authority trumps the more general authority.          See
Secretary's Supp. Memo. at 5. Our conclusion generally rests on the closely related canon of
statutory and regulatory interpretation "that a more specific statute will be given precedence over
a more general one." Busic v. United States, 446 U.S. 398, 406 (1980); see Kowalski v. Nicholson,
19 Vet.App. 171, 176-77 (2005) (citing Zimick v. West, 11 Vet.App. 45, 51 (1998)).
        Although this Court has held that the judicially created presumption of regularity is
generally applicable to the mailing of an SOC, those cases are distinguishable from the present
case because the specific point of contention regarding the mailing at issue was not the subject of
any regulatory presumption.      See, e.g., Matthews v. Principi, 19 Vet.App. 23, 27 (2005)
(concerning VA's failure to send the SOC to the appellant's representative); Crain, 17 Vet.App. at
186 (concerning VA's mailing of the SOC to an incorrect address); YT v. Brown, 9 Vet.App. 195,
199 (1996) (concerning the appellant's claimed non-receipt of the SOC). Here, because the
presumption in § 20.302(b)(1) specifically addresses the date of mailing of the SOC, the precise
issue in this case, the Court concludes that the regulatory presumption applies, if it is valid.
Because the appellant asserted at oral argument that the regulation is invalid, however, we will
first settle that question.
              2. Validity of § 20.302(b)(1) Raised for the First Time at Oral Argument
        As an initial matter, the Court acknowledges that the appellant raised the validity of the
presumption in § 20.302(b)(1) for the first time at oral argument and that the Secretary has asked
the Court to refuse to address it. See Secretary's Response at 6-7. The Court also recognizes that,



                                                 8
ordinarily, "improper or late presentation of an issue or argument . . . should not be considered."
Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999). The Court, however, does have discretion to
hear arguments presented to it in the first instance, even if raised late. Maggitt v. West, 202 F.3d
1370, 377-78 (Fed. Cir. 2000) (holding that this Court has jurisdiction to hear arguments presented
to it in the first instance, provided that it otherwise has jurisdiction over the claim).
        Here, the Court concludes that the unique circumstances of this case weigh in favor of
exercising our discretion to address the late-raised argument regarding the validity of that portion
of § 20.302(b)(1) that creates a presumption of the date of mailing of an SOC. At oral argument,
the Court was presented with a compelling allegation that the regulation VA asks us to apply
conflicts with the appellant's statutory rights and the Secretary's concessions appeared to confirm
that allegation. Accordingly, it would be contrary to the interests of justice for the Court to simply
ignore that argument, presume the validity of the challenged regulation, and apply the regulatory
presumption to the appellant's case. Importantly, the Court concludes that entertaining this
argument is not prejudicial to the Secretary because the Court provided him the opportunity to set
forth the Agency's position on this question in writing and imposed no page limit on his ability to
do so, and he filed a 17-page response, along with 20 pages of attachments. The Court is satisfied
that exercising its discretion in this case is warranted.
                   3. Validity of the Presumption of the Date of Mailing an SOC
        Congress has conferred on the Secretary broad authority to "prescribe all rules and
regulations which are necessary or appropriate to carry out the laws administered by the
Department and are consistent with those laws." 38 U.S.C. § 501(a) (emphasis added). "The
framework for analysis is refined by consideration of the source of the authority to promulgate the
regulation at issue." United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982). Where, as here,
the Agency has promulgated a regulation "only under [the] general authority to 'prescribe all
needful rules and regulations,'" id. (quoting 26 U.S.C. § 7805(a)), the Court "owe[s] the
interpretation less deference than a regulation issued under a specific grant of authority to define
a statutory term or prescribe a method of executing a statutory provision," Rowan Cos. v. United
States, 452 U.S. 247, 253 (1981).
        We must first determine whether the regulation "harmonizes with the statutory language."
Vogel Fertilizer, 455 U.S. at 25. Section 7105(d)(3) is unambiguous: As a matter of right, a
claimant "will be afforded a period of sixty days from the date the [SOC] is mailed to file the



                                                   9
formal appeal" (emphases added). This means that a claimant shall not receive fewer than 60 days
to submit his or her Substantive Appeal. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409
(1993) ("The starting point in interpreting a statute is its language."); Haney v. Nicholson, 20
Vet.App. 301, 305 (2006) (noting that "may" is discretionary, while "will" is mandatory); Turco
v. Brown, 9 Vet.App. 222, 224 (1996) (noting that "will be" in a regulation makes the action that
follows mandatory).
       To comport with its statutory mandate, then, § 20.302(b)(1) must operate to provide all
claimants with 60 days from the date the SOC is mailed to perfect an appeal. Because the plain
language of the regulation does not purport to restrict the 60-day period, its terms do not appear to
directly conflict with the statute. The United States Supreme Court, however, "has firmly rejected
the suggestion that a regulation is to be sustained simply because it is not 'technically inconsistent'
with the statutory language, when that regulation is fundamentally at odds with the manifest
congressional design." Vogel Fertilizer, 455 U.S. at 26 (citing United States v. Cartwright,
411 U.S. 546, 557 (1973)).
       Although the statute does not answer the question of how to determine when an SOC was
mailed, leaving a gap that the Secretary attempted to fill by regulation, see Chevron v. Nat'l
Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984), the Secretary made numerous
concessions in his supplemental memorandum and at oral argument that demonstrate that his
application of the presumption in § 20.302(b)(1) does not protect the statutory right of all claimants
to 60 days to file a Substantive Appeal and, in fact, may create a substantial risk that claimants
will not receive the statutorily allotted time to perfect their appeals. Accordingly, we find that that
portion of the regulation is inconsistent with the requirements of section 7105(d)(3) and therefore
invalid. See, e.g., Citizen's National Bank of Waco v. United States, 417 F.2d 675, 679 (5th Cir.
1969) ("It is equally clear, however, that 'the regulations must, by their terms and in their
application, be in harmony with the statute. A [r]egulation which is in conflict with or restrictive
of the statute is, to the extent of the conflict or restriction, invalid.'" (quoting Scofield v. Lewis,
251 F.2d 128, 132 (5th Cir. 1958))); Disabled Am. Veterans (DAV) v. Sec'y of Veterans Affairs,
327 F.3d 1339, 1346 (Fed. Cir. 2003) (invalidating a proposed VA regulation that would
circumvent the statutory right to "one review on appeal to the Secretary" in 38 U.S.C. § 7104(a));
DAV v. Gober, 234 F.3d 682, 704 (Fed. Cir. 2001) (invalidating a VA regulation that operated
"contrary to the requirement" of the authorizing statute); Staab v. McDonald, 28 Vet.App. 50, 55



                                                  10
(2016) (invalidating a VA regulation that was inconsistent with the statute and contrary to the
intent of Congress).
       Specifically, the Secretary made the following concessions:
       1. The presumption in § 20.302(b)(1) may be rebutted by "clear evidence that the cover
           letter [accompanying an SOC] was, in fact, not mailed to the claimant on the date
           indicated on the SOC." Secretary's Supp. Memo. at 1.
       2. "[W]hen the notification letter that accompanied the SOC bore a later date than the
           SOC itself . . . , there would be clear evidence that the SOC . . . was not, in fact, mailed
           on the date of the SOC." Id. at 4 (emphasis added).
       3. If a notice letter accompanying an SOC is dated later than the date of the SOC itself,
           the claimant must be given 60 days from the date of the notice letter to file his or her
           Substantive Appeal, despite the existence of the regulatory presumption that the date
           on the SOC is the date of mailing of the SOC. Oral Argument at 48:21-:45.
       4. Claimants are advised in the notice letter that they have 60 days from the date of the
           letter to file a Substantive Appeal. Id. at 51:49-52:03; see R. at 718.
       5. "Providing a date stamp on the letter is really a means . . . to ensure as best as we can
           that [a claimant] is provided the 60 days required by statute to provide his timely
           Substantive Appeal." Oral Argument at 52:05-52:15.
       6. Where the notice letter accompanying the SOC is undated, the presumption operates to
           provide a claimant 60 days from the date listed on the SOC itself to file the Substantive
           Appeal. Id. at 42:54-43:13; 43:24-:37; 47:04-:21.
       7. In this case, VA has "no evidence about when [the SOC] was received," nor does VA
           have "any specific information about when it was mailed." Id. at 36:50-37:07; see also
           id. at 40:12-:18, 45:12-19.
       8. The notice letter in this case was undated and, in practice, notice letters are sometimes
           dated later than the date of the SOC itself. Id. at 46:26-:44; see R. at 718-19.
Together, 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



                                                 11
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. See, e.g., Citizen's National Bank of Waco, 417 F.2d at 679; DAV, 327 F.3d at 1346;
DAV, 234 F.3d at 704; Staab, 28 Vet.App. at 55.
        In the absence of the specific regulatory presumption, the question thus becomes whether
the more general, judicially created presumption of regularity governs this case. We will, for the
sake of that principle, assume, without deciding, both that it does apply5 and that the Secretary
could rely on it to assert that VA mailed the SOC on June 2, 2015, as he argues, and now turn to
the question of whether the appellant has rebutted the presumption.
                                4. Rebutting the Presumption of Regularity
        The appellant may rebut the presumption of regularity—which essentially provides that
what appears regular is regular, see Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)—by
producing clear evidence that VA did not follow its regular mailing practices or that its practices
were not regular. See Woods v. Gober, 14 Vet.App. 214, 220 (2000); Ashley v. Derwinski,
2 Vet.App. 307, 309 (1992). Whether clear evidence exists to rebut the presumption is a question
of law that the Court considers de novo. See Crain, 17 Vet.App. at 188.
        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




        5
           For the presumption of regularity to apply, there must first be some evidence of a regular process. The
question of whether the Agency has a regular process, however, is a factual question. Kyhn v. Shinseki, 716 F.3d 572,
577-78 (Fed. Cir. 2013). The Court stresses that we are not finding that VA does, in fact, have a regular process for
dating and mailing SOCs. Rather, we find, based on the undisputed facts of this specific case, that, even assuming a
regular process, there is sufficient evidence to rebut it.



                                                        12
sometimes dated later than the date of the SOC itself,6 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. R. at 5-6; see Appellant's Br. at 9; R. at
718. Also, as noted above, the Secretary conceded that he does not have "any specific information
about when [the SOC] was mailed." Oral Argument at 36:50-37:07; see also id. at 40:12-:18,
45:12-19. All of this points to irregularity in the appellant's case.
                                                5. Secretary's Burden
         Where the appellant has presented clear evidence to rebut the presumption of regularity,
the burden shifts to the Secretary to establish proper mailing. See Baxter v. Principi, 17 Vet.App.
407, 410 (2004) (citing Cross v. Brown, 9 Vet.App. 18, 20 (1996) (per curiam order)). As noted
above, the Secretary asserted at oral argument that it is VA's regular practice to date the cover
letter with the date the SOC is sent. Oral Argument at 49:23-:31. As the Board found, this was
not done in this case; the letter accompanying the SOC is undated. R. at 5. Additionally, the
Secretary has conceded that he cannot demonstrate proper mailing of the SOC in this case. Id. at
40:12-:18.
                                                       D. Remedy
         Where the Secretary fails to carry his burden of showing compliance with mailing
procedures, "the period for filing a Substantive Appeal does not begin to run until the defect is
cured (i.e., when the claimant actually receives the SOC)." Crain, 17 Vet.App. at 187 (citing
Ashley, 2 Vet.App. at 311). Because the Board based its determination that the appellant's


         6
           With respect to the appellant's argument that notice letters in other cases were dated later than the date of
the SOC itself, the Secretary argued that "all of the cited letters have dates and thus the cited letters would be covered
by the portion of [§] 20.302(b)(1) that states that 'the date of mailing the letter of notification of the determination will
be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely
filed.'" Secretary's Br. at 11 (quoting 38 C.F.R. § 20.302(b)(1)). The Court notes, without deciding, that it appears
that the phrase "the letter of notification of the determination" in § 20.302(b)(1) refers to the letter that accompanies
the original decision being appealed, as explained in the notice letter that accompanied the appellant's SOC in this
case. See R. at 718 ("You must file your appeal with this office within 60 days from the date of this letter or within
the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have
appealed."). The Board also appears to have interpreted the regulation in this way. See R. at 6 ("The [appellant's]
August 2015 Appeal to the Board . . . was received by VA on August 11, 2015, a date 70 days after the issuance of
the June 2, 2015, [SOC] and over two years after the August 8, 2013, written notice to him of the adverse decision.").



                                                            13
August 11, 2015, Substantive Appeal was untimely on the application of the invalid regulatory
presumption in § 20.302(b)(1), the Court will set aside that finding and vacate the July 2017 Board
decision on appeal. See 38 U.S.C. § 7261(a)(3). Two factual questions remain: On remand, the
Board must determine when the appellant received the SOC dated June 2, 2015, and whether he
filed his Substantive Appeal within 60 days of that date. See Crain, 17 Vet.App. at 194; see also
38 U.S.C. § 7261(c) ("In no event shall findings of fact made by the Secretary or the Board of
Veterans' Appeals be subject to trial de novo by the Court."); Hensley v. West, 212 F.3d 1255,
1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial fact finding.").
       On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, including the specific arguments raised here on appeal, and the Board is required
to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534
(2002) (stating that, on remand, the Board must consider additional evidence and argument in
assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73
(1999) (per curiam order). The Board must proceed expeditiously, in accordance with 38 U.S.C.
§ 7112.
                                        E. Other Arguments
       The Court need not address the appellant's argument that the Board failed to consider
whether the time limit to file the Substantive Appeal could be waived or equitably tolled, see
Appellant's Br. at 11-12; Reply Br. at 5-6, in light of the conclusions that the regulatory
presumption in § 20.302(b)(1) is invalid and that the general presumption of regularity, if it applies,
has been rebutted. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that "the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court's opinion or that would require the Court to issue an advisory opinion"); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). Nor must the Court consider whether the inclusion
of the text of § 20.302 in the body of an SOC violates § 19.30. See Quirin, 22 Vet.App. at 395;
Best, 15 Vet.App. at 20. Additionally, because this matter has been resolved on statutory and
regulatory grounds, the Court need not address the appellant's due process arguments. See
Bucklinger, 5 Vet.App. at 441.




                                                  14
                                      III. CONCLUSION
       After consideration of the parties' pleadings, a review of the record, and oral argument, the
Board's July 31, 2017, finding that the appellant's Substantive Appeal was untimely is SET
ASIDE, the decision is VACATED, and the matter is REMANDED for further proceedings
consistent with this decision.


       PIETSCH, Judge, concurring: I join the majority opinion in full. 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.




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