When the VA issues a decision on your disability claim, it is required by law to notify you and your representative of its decision and of your appellant rights. Ordinarily, you and your representative will receive a paper copy of the decision by mail. This document will list the reasons the VA granted or denied the claim and inform you of your right to appeal the decision.
Veterans’ appellant rights are governed by specific time periods. Once the VA has made a decision, you have limited time to file an appeal. If that time elapses before the VA receives your appeal request, the claim will become final and you will no longer be able to appeal the decision.
But what happens if the VA has mailed a decision to you but not your representative? The clock starts regardless. You have received notice of the VA’s decision, so it’s your responsibility to file an appeal within one year’s time.
The VA’s failure to notify representatives could lead to veterans missing their appeal deadlines. When you notify the VA about your new representative, it’s assumed that the VA always sends copies of all correspondence to that representative.
But this is not always the case. Because VA decisions take a very long time, neither veterans nor representatives can guess when determinations or decisions will be issued. The VA does not have a time frame in which they must decide a claim.
The Presumption of Regularity
If you assume your representative has also received a copy of VA correspondence, you probably expect your representative to respond to the VA. But if you don’t inform your representative that a decision has been received and the time-period to appeal a claim elapses, you can’t argue that the VA should accept your appeal out of time.
Why is this? The United States Court of Appeals for Veteran Claims has held that “there is a presumption of regularity under which it is presumed that government officials properly discharge their official duties.’” (Sthele v. Principi, 2004). This means it is assumed that the VA always properly discharges its official duties by mailing a copy of a decision to the last known address of the veteran.
Although a veteran can overcome the presumption of regularity by submitting “clear evidence to the contrary,” a veteran’s and/or his representative’s mere statement of nonreceipt is insufficient for that purpose.
In other words, once the VA has decided a claim, it is presumed for legal purposes that it mailed a copy of the decision to the veteran and his or her representative. The time period for appeal begins the day it was presumed the VA mailed the decision. If time expires, it is not sufficient to argue that the veteran’s representative did not receive the decision to force VA to accept an appeal out of time.
What does this mean for veterans? If you receive any written correspondence from the VA regarding your VA disability claims, immediately notify your representatives to check that they received a copy as well. Protect your appellant rights. Do not assume that your representative has received a copy from VA.
Veterans Serving Veterans
Are you receiving the veterans’ disability compensation you are entitled to receive by law? If you need assistance appealing VA Rating Decisions for mental health conditions or physical disabilities that occurred in service, please contact the Berry Law Firm.
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