Rebut "presumption Of Regularity" Impossible?

[Quint7]

Before my claim for an EED goes before the BVA my rep requested a supplemental statement of the case. It arrived yesterday and while it incorporated the reasons listed in my denial, it also said the main basis for denial is (get ready) even though there is no proof that I was EVER notified of the result of my original claims in 1994 as there is no letter in my cfile OR no returned letter containing notification, the "presumption of regularity" allows VA TO ASSUME THAT THERE HAD BEEN A LETTER AND THAT IT WAS SENT.

What? I could see the whole mail delivery thing...... but to assume under the same idea that a letter WAS EVEN TYPED UP sounds like bs to me. How is this not a violation of due process? I have read about denials due to exams being missed and VA using that claim to rebut the "I never got a notice" , but for an initial decision? Immediately after my enlistment ended? I posted in the thread aboutbenefit of the doubt but how could anything trump something like this? To assume a document was generated (back in 1994-5, pre automated leters I assume) and sent with 0 proof seems like a bit of a stretch.

Any opinions?

[GuaymasJim]

Quint, Research "essential mail" in 38 CFR. An TDUI employment questionnaire was sent to me a couple of years ago but sent to an 8 year old address. Since I never received it, I never responded to it. The same RO sent an "award letter" reducing my compensation to the correct address showing argued that my current address was on records with the VA. While researching the validity of an employment questionaire being sent to me with continual and interrupted TDUI for 27 years and over (way over) 55 years old, I came across regulations regarding "essential mail" and the requirements that the VA must meet when mail deemed essential to a claim is returned to the VA undeliverable. I am not certain that those regulations will help you, but it would be worth looking into.

Good luck.

[deltaj]

So does anyone have any idea what could possibly be presented that would provide "clear evidence to the contrary" to rebut the 'presumption of regularity"?

In the reasons and bases they site "YT v Brown, 9 Vet App 195, 199 (1996)", "Mindenhall v Brown 7 Vet App 271" and my old favorite, "Hyson v Brown 5 Vet App 262, 264-65 1993".

I have read Hyson many times and I cited it to THEM in that there was absolutely no attempt made to track me down in 1994 even though I know I read some friggin where that if it is an original claim immediately post discharge the VA is expected to do more diligence in finding out why you are a no show for an exam.

I just don't get how "Due Process" can be trumped by "presuming" a document that they or I can't prove existed ever was made and mailed out.

Are there any V.A. examinations from that time or correspondence to you showing your latest address of record? 38 CFR 3.1 used to have a definition of latest address of record. This would also tie to 38 CFR 3.103 and one law in 38 USC I can't recall on notification. Try reading Crain v. Principi, Huack v. Brown, and George Box v. R James Nicholson. There are also references to other cases on refuting the presumption of regularity in these aforementioned cases. You might want to also read the Federal Circuit decision in Andrew Collaro v. Togo West. Try reading Larry Ruffin v. Anthony Principi then consider whether you made that earlier claim for the highest rating possible and consider what evidence of record V.A. had at the time of the earlier rating decision. If you have any new and material evidence from the era of an earlier denied claim you might want to read the federal circuit decision in Lewis Hodge v. Togo West. You might also want to look at the federal circuit decision in Howard Roberson v. Anthony Principi. The case Sterling Rice v. Eric Shinseki is also interesting reading on TDIU claims. Steve Stout v. Anthony Principi is also interesting reading. Also try looking up the phrase flat mail on the website of the U.S. Court of Veterans Appeals in case V.A. sent one or more of the notices to your appointed representative via flatmail. Also consider 38 CFR 3.157 (b) if you had an exam showing an increase in disability prior to your earlier claim and then read Robert Moore v. Edward Derwinski considering the denial of TDIU.

[LarryJ]

Concrerning the "Presumption of Regularity":

As some of you know, I am a Veterans Service Officer. Now, as a VSO I am "expected" to receive, due to the Power of Attorney process, all the same mailings and notices that my veteran receives. Right? WRONG!

I receive NOTHING that they receive. NOTHING! When asked about this the VA replies "Well, gee, we didn't REALLY think that you were a REAL veterans service officer." HUH? What do you mean? "Well, nobody in THIS office has ever heard of the Jewish War Veterans, so we don't recognize you as a regular, REAL, veterans service officer..............................................."

Yeah, "Presumption of Regularity" my ass!

I PRESUME WITH REGULARITY that the VA is a LOT OF THINGS............none of them being "REGULAR".

(sorry, but I'm damned tired of dealing with these folks and it is a good time for a vacation.....................I'm goin' to Vegas!).

[john999]

Why not run all this by a veteran's lawyer? They fight hard if there is a lot of retro. The VA will keep you running around on this for years. Proving the VA did not send you a letter is like proving a negative. There might be another loophole we are not aware of since we don't do claims for a living.

[Notorious Kelly]

As life-impacting as claims are for us, it's absolutely Criminal that the VA can get away with "we mailed it".

For any negative issue, they should have to have delivery confirmation and follow-up. Damn the cost.

[john999]

The VA is too cheap to send it certified/return receipt because they just don't care. They sent a toilet seat to me certified mail. I guess a letter of denial for benefits is of less import than a toilet seat.