          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            No. 98-1375

                                JIMMIE HARVEY , JR., APPELLANT ,

                                                 V.


                                   HERSHEL W. GOBER,
                     ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal from the Board of Veterans' Appeals

(Argued April 5, 2000                                                        Decided Sep 19, 2000)


       Patrick H. Stiehm, of Alexandria, Virginia, for the appellant.

       Gary E. O'Connor, with whom Leigh A. Bradley, General Counsel; Ron Garvin, Assistant
General Counsel; and Michael A. Leonard, Deputy Assistant General Counsel, all of Washington,
D.C., were on brief, for the appellee.

       Before NEBEKER, Chief Judge, and KRAMER and IVERS, Judges

       PER CURIAM: The appellant, Jimmie Harvey, Jr., appeals from a June 15, 1998, Board of
Veterans' Appeals (Board or BVA) decision that denied his application for Service Disabled
Veterans' Insurance (SDVI) on the grounds that Mr. Harvey failed to meet the basic criteria for
entitlement to such benefits. Mr. Harvey filed a brief and a reply brief in support of his claim, and
the Secretary filed a brief urging affirmance of the BVA decision. This appeal is timely, and the
Court has jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). Upon consideration of the
submissions to the Court and the record on appeal, the Court will affirm the Board's decision for
the following reasons.


                                             I. FACTS
       Mr. Harvey served on active duty in the U.S. Army from May 1974 to March 1975. Record
(R.) at 45. In October 1974, he suffered an acute schizophrenic episode and was admitted to the
hospital. R. at 36. A medical board determined in January 1975 that he was no longer fit for
military duty, and he was separated from service three months later. R. at 36, 45. Within a few days
of his service separation, Mr. Harvey filed a claim for compensation benefits with VA for his
schizophrenia. R. at 47-48. He underwent a VA medical examination in April 1975 and was
diagnosed with "schizophrenic reaction, acute, undifferentiated type." R. at 53. The examiner noted
in his report that Mr. Harvey was competent and was not in need of psychiatric hospitalization. Id.
In May 1975, the VA regional office (RO) granted Mr. Harvey's claim for service connection and
assigned a 50% disability rating for his schizophrenia. R. at 58. Because Mr. Harvey's service-
connected disorder was rated above 10% disabling, he was eligible to apply for SDVI. See 38
U.S.C. § 241 (1970). His award letter, dated May 27, 1975, reflects that a copy of this decision was
to be sent to the "VA Center" in St. Paul, Minnesota. Id.
        Mr. Harvey filed an application for SDVI in August 1995. R. at 126-27. The RO denied his
request via letter in January 1996, stating that he was no longer eligible for these benefits. R. at 205-
06. At the time of Mr. Harvey's award in 1975, applications for SDVI, the RO reported, must have
been submitted within one year from the date VA notifies a veteran that his or her disability is
service connected. R. at 205; see also 38 U.S.C. § 241 (1970). The letter went on to state that RO
records showed that VA sent Mr. Harvey notice of his service connection on May 27, 1975. R. at
205. Consequently, Mr. Harvey's SDVI application was untimely by more than twenty years. Id.
The RO also noted that subsequent changes to the law had extended the eligibility period for SDVI
to two years from the date of service connection notification for new disability ratings dated after
September 1, 1991, but that this did "not apply when second or subsequent ratings are re-ratings of
the same disability." Id.; see also 38 U.S.C. § 7722 (1999).
        Mr. Harvey filed a Notice of Disagreement in March 1996. R. at 208-11. His representative
from Disabled American Veterans asserted that Mr. Harvey's service-connected disability "rendered
him unable to make decisions regarding matters such as insurance coverage." R. at 242. The Board
denied the claim in June 1998 (R. at 1-7), concluding that Mr. Harvey "has not demonstrated that
he was incompetent at any time during which he was eligible to apply for [SDVI] . . . . Therefore,
the statutory one-year eligibility period has not been tolled, and the veteran's application for such
benefits is untimely." R. at 5. The Board also stated that "[t]he law does not require the VA to




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provide notice of eligibility for [SDVI], and such lack of notice does not toll the statutory application
period." R. at 4. This appeal follows.


                                           II. ANALYSIS
        The Board denied Mr. Harvey's claim for SDVI because it concluded that he had not
established that he was incompetent during his one year of eligibility, and therefore, the filing period
was not tolled. See 38 U.S.C. § 722(a) (1970) (explaining that where the veteran is shown to have
been mentally incompetent during the SDVI filing period, the application for SDVI may be filed
within one year after the appointment of a guardian or within one year after the removal of mental
incompetency) (recodified as 38 U.S.C. § 1922(a) by Pub.L. No. 102-86, § 201(a)(1), 105 Stat. 414,
415 (1991) (extending that period to two years after the appointment of a guardian or the removal
of incompetency)); 38 C.F.R. § 3.353 (1999) (providing the standard for determining incompetency).
Mr. Harvey, however, has not raised this issue before this Court. Thus, the Court deems the issue
abandoned and will not address it further. See Ford v. Gober, 10 Vet.App. 531, 535-36 (1997)
(citing Bucklinger v. Brown, 5 Vet.App. 435, 436 (1993)).
        Mr. Harvey contends that the Board's finding that VA was not required to provide him with
notice of SDVI eligibility was contrary to law. Appellant's Brief (Br.) at 6-10. Specifically, he
argues that 38 U.S.C. § 7722(b)-(c) created a legal duty on the part of the Secretary to provide
veterans with notice of SDVI eligibility and that the Secretary did not fulfill his duty in this case.
Thus, he maintains that the statutory filing period for SDVI should be tolled. Id. Mr. Harvey did
not raise these issues before the RO or the Board. Consequently, the Secretary argues that they are
not properly before the Court. Secretary's Br. at 7.
        The Court disagrees with the Secretary and holds that it possesses appropriate jurisdiction
to consider those issues pursuant to Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000). In
Maggitt, the Federal Circuit held that the Court, in its discretion, may hear legal arguments presented
for the first time provided that it has proper jurisdiction of the claim. Id. In deciding whether or not
to hear a newly raised legal argument, "[t]he test is whether the interests of the individual weigh
heavily against the institutional interest the doctrine [of exhaustion of administrative remedies] exists
to serve." Id. (citing McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291


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(1992)). "Those institutional interests are, in the main, to protect agency administrative authority
and to promote judicial efficiency." Id.
       The doctrine of exhaustion, however, may not be invoked against an individual when: (1)
invocation of the doctrine will result in a prejudicial delay to the individual or doubt exists as to
whether the agency is empowered to grant effective relief, (2) the agency fashioned remedy is
considered inadequate because the agency is "shown to be biased or has otherwise predetermined
the issue before it[,]" or (3) the Congressional purpose or purposes of the statutory scheme under
which the individual is seeking to avoid application of the doctrine would be frustrated to the
detriment of the individual. Id. at 1378.
       The Court holds that, to invoke the doctrine of exhaustion of administrative remedies against
Mr. Harvey would require him to present his newly raised legal arguments to the Board, even though
it has already concluded that VA was not required to notify him of his eligibility for SDVI. The
Board's conclusion that VA was not obligated by law to provide notice to Mr. Harvey is indicative
that VA has already predetermined the issue. Therefore, the Court, in its discretion, will not invoke
the doctrine of exhaustion of administrative remedies against Mr Harvey. See id. The invocation
of the doctrine would also result in further delay, which while perhaps not prejudicial to Mr. Harvey,
would be unnecessary and require further unnecessary expenditure of adjudicative resources.
       At the time that Mr. Harvey was awarded service connection for his psychiatric disability in
May 1975 (R. at 60), 38 U.S.C. § 722 provided for a one-year period, commencing on the date
service connection is determined, in which a veteran awarded service connection for a condition
rated at least 10% disabling could apply for SDVI benefits. See 38 U.S.C. § 722(a) (1970). Because
Mr. Harvey did not submit his application for SDVI until August 1995 (R. at 126-27), more than 20
years after his award of service connection, that application was considered to have been untimely
under both the former § 722(a) and current § 1922(a). He contends, however, that VA failed to
notify him of his eligibility to apply for SDVI and that, because of such failure, the statutory period
for filing should be equitably tolled. For the following reasons, the Court disagrees.
       First, the Court must address what sort of obligation VA had to notify Mr. Harvey of his
eligibility for SDVI. At the time VA granted Mr. Harvey service connection for his schizophrenia,
the pertinent law regarding notice was found in 38 U.S.C. § 241(b)-(c) (1970). Subsequently, the


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law was altered, and now the relevant provisions are incorporated in 38 U.S.C. § 7722 (b)-(c). The
old and new provisions are essentially the same in content. Both provide that VA "shall by letter
advise each veteran at the time of the veteran's discharge or release from active military . . . service
(or as soon as possible after such discharge or release) of all benefits and services under laws
administered by the Department for which the veteran may be eligible." 38 U.S.C. § 7722 (b); see
also 38 U.S.C. § 241(b). Both also provide that VA "shall distribute full information to eligible
veterans . . . regarding all benefits and services to which they may be entitled under laws
administered by the Department . . . ." 38 U.S.C. § 7722 (c); see also 38 U.S.C. § 241(c). For the
purposes of this case, the Court will assume, without deciding, that the Secretary was under a duty
to notify Mr. Harvey of his eligibility for SDVI under both the former § 241 and the current § 7722,
and that if proper notification had not been made, the time for filing an application should be tolled.
See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998) (holding that in appropriate circumstances,
a statutory filing period may be equitably tolled due to conduct of VA). Accordingly, the Court need
not decide whether the old or new provisions would be applicable here. See Karnas v. Derwinski,
1 Vet.App. 308, 313 (1991).
        There are specific procedures that VA follows in order to notify veterans of their SDVI
eligibility:
        First, a copy of the rating sheet with the award letter is sent to the VA Insurance
        Center having insurance jurisdiction over the area in which the Regional Office is
        located. See DEPARTMENT OF VETERANS BENEFITS MANUAL M29-1, Part IV, para.
        1.02a (Jan. 27, 1976) . . . . Second, when the Insurance Center receives a copy of the
        award letter, it is screened to determine whether the veteran is eligible for SDVI. Id.,
        para. 1.02e. Third, veterans with eligible rating decisions are sent a form letter (FL
        29-5a) and a pamphlet (VA Pamphlet 29-9, Service-Disabled Veterans Insurance
        RH-Information and Premium Rates) regarding the requirements for applying for
        SDVI. Id., para. 1.03.
Secretary's Br. at 9-10. The Secretary represents that these procedures were in effect at the time VA
granted Mr. Harvey service connection, and that shortly after Mr. Harvey's rating decision was
issued, VA documented the notification procedures in its Manual M29-1. Id. He further represents
that the proper Insurance Center at the time of Mr. Harvey's award of service connection was in St.
Paul, Minnesota. Id. at 2. Additionally, the Secretary's appendices 5-6 show that Form Letter FL



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29-5a and Pamphlet 29-9 were created in July 1972--almost three years before Mr. Harvey's rating
decision was issued. Id. at 10, app. 5-6.
        Mr. Harvey seems to contend that these procedures were not properly applied in his case, as
it is his position that he never received notice of his SDVI eligibility. Appellant's Br. at 4-5. He first
asserts that the service connection award letter, which was sent on May 27, 1975, according to VA
records, stated only that a copy of the letter was provided to the VA Insurance Center in St. Paul,
Minnesota. R. at 58. The letter, he argues, did not notify him specifically of his SDVI eligibility.
Id. at 10; Reply Br. at 4. Mr. Harvey, however, has not made any express assertion that he did not
receive by separate mailing Form Letter FL 29-5a or Pamphlet 29-9, which discuss eligibility
requirements for SDVI. Moreover, even assuming that Mr. Harvey's argument could be understood
to be an assertion that he never received these materials, such a contention does not constitute the
"clear evidence" necessary to overcome the presumption that the materials were sent to him in
accordance with the normal course of VA business. See YT v. Brown, 9 Vet.App. 195, 199 (1996)
(holding that a statement of non-receipt does not rebut the presumption of regularity attached to the
normal procedure of mailing Statements of the Case to claimants); Ashley v. Derwinski, 2 Vet.App.
62, 64 (1992) (stating that the Court must apply a "presumption of regularity" to "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" ) (emphasis in original) (quoting United States v. Chemical
Foundation, Inc., 272 U.S. 1, 14-15 (1926)).
        Mr. Harvey next asserts that the Insurance Center was never actually notified of his service
connection award by the RO, and consequently, there was no act that would prompt the Insurance
Center to mail the SDVI eligibility notification to him. Appellant's Br. at 10; Reply Br. at 4. He has
nevertheless presented no evidence in support of such a proposition. Because the May 1975 RO
decision sent to Mr. Harvey shows that VA sent a copy of that decision to the "VA Center, St. Paul,
Minnesota," (R. at 58), the Court will assume, pursuant to the presumption of administrative
regularity, that a copy of his award letter was, in fact, sent to and received by the Minnesota location
(See Ashley, 2 Vet.App. at 64; Chemical Foundation, Inc., 272 U.S. at 14-15).
        Finally, Mr. Harvey asserts that if the Insurance Center had actually received a copy of his
award letter, then a file containing this letter and a copy of a subsequent notification letter to him


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regarding SDVI eligibility would have been prepared by the Insurance Center in the normal course
of business. Appellant's Br. at 10. That such a file does not now exist, Mr. Harvey argues, signifies
that no such notice was ever sent to him and would thus rebut the presumption of administrative
regularity. Id. The Secretary's representation at oral argument, however, reflects that at the time of
Mr. Harvey's service connection award, part of the regular administrative process of the Insurance
Center was to destroy any notification file that might have existed whenever an application was not
filed within the statutory period for filing. Consequently, the present non-existence of any file, many
years after the time in which such a file should have been destroyed in the normal course of business,
in no way demonstrates administrative irregularity. Because the file's non-existence at this time
cannot be relied upon to defeat the presumption of administrative regularity, Mr. Harvey's argument
must fail.
       Even if the Court were to conclude that VA has a statutory duty to notify a veteran of his or
her SDVI eligibility, the Court holds that VA presumably has fulfilled its duty in this case.
Therefore, honoring Mr. Harvey's request to toll the statutory filing period for SDVI benefits is
unwarranted.


                                        III. CONCLUSION
       Upon consideration of the foregoing, the Board's June 15, 1998, decision is AFFIRMED.




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