VA Undeliverable mail policy 1982

[willj57]

Im looking for the VA policy on undeliverable mail that was in effect back in 1982. More accurately, policy on essential mail. Also on how to locate veteran if where abouts is deemed unknown  due to returned mail.

 

[willj57]

Berta, where do I find these #'s?  I will get back to all as quick as I can. Thank you all.  I see a 216/JMC. I'll keep looking.

[Berta]

Oh, that sounds like a VA Regional Office ID- they often put an alphanumeric on the right hand side of a RO decision- it is the RO code number and the initials of the last person who handled the claim.

I thought this was a BVA decision.

BVA decisions have Docket numbers and Citation numbers to the top left of their decisions.

This is a M21-1MR search feature for undeliverable mail-

https://www.google.com/search?q=M21-1MR+undeliverable+mail&rlz=1C1CHBF_enUS695US695&oq=M21-1MR+undeliverable+mail&aqs=chrome..69i57.9535j0j8&sourceid=chrome&ie=UTF-8

There are many M21-1MR excerpts there , and some might have been policy in 1982.

However I hope you have ordered your c file- it could possibly reveal your claim is still Open......

Can you scan and attach the last decision you got from your VARO here if it mentions at all the undeliverable mail......

(Cover C file name, address -prior to scanning it.)

 

 

Edited April 19, 2018 by Berta

[willj57]

Found the docket No. 13-24 937A, and citing of Bernard v. Brown, 4 Vet. App. 384(1993). 

I also have reviewed some of the return mail policy.  One thing I found interesting is the VA state for agents not to rely on the address and to use the phone.  It also has steps to search even the VA medical file.

All that was done was two letters to the same wrong address.  And no one from the VA ever called the Michigan address to check.  How can that not be a failure by the VA to assist and notify.  This is what the DRO stated in the NOD; The veteran had previously submitted a claim for a nervous disorder that was received by VA on 3/18/1982. 

As part of VA's development of this case a decision was made to schedule a VA examination. Twice VA sent examination notices to the address that had been provided by the veteran and each time they were returned. A decision was  therefore was made to deny the veteran's claim.

The VA form 21-8947 notes that no letter was required because of course VA was unsure as to the veteran's  whereabouts. Apparently the veteran had moved without apprising VA of this fact. Over the course of the next three years there were several communications with the VA related to educational benefits and the veteran reopened this claim in 2012.

ETS 01/31/1982

VA hosp 3/18/1982  (3 weeks hosp) Left TX to MI. VA had new address from approx 04/09/1982

VA sends out first request on 7 May 1982 to TX address

VA supposedly send out a second letter to same TX address

VA 25 May 1982 issued a C&P Disallowance, noted the veterans "Whereabouts Unknown" and closes claim with no rating decision.

VA same day 25 May 1982 conducts an master Record Audit showed the veterans correct address.  VA already had correct and did not pursue the claim after May 25 1982.

Claim open for 54 days! That's duty to assist.

 

 

 

[Berta]

If I were you I would file a CUE claim. This is just a draft-

This is a claim of Clear and unmistakable error under auspices of 38 USC 5109 A ,in violation of 38 CFR 4.1 et al: specifically 4.6.

 "4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

As my enclosed evidence reveals, the VA was fully aware of my address the same day they closed the claim:

ETS 01/31/1982

VA hosp 3/18/1982  (3 weeks hosp) Left TX to MI. VA had new address from approx 04/09/1982

VA sends out first request on 7 May 1982 to TX address

VA supposedly send out a second letter to same TX address

"VA 25 May 1982 issued a C&P Disallowance, noted the veterans "Whereabouts Unknown" and closes claim with no rating decision.

VA same day 25 May 1982 conducts an master Record Audit showed the veterans correct address.  VA already had correct and did not pursue the claim after May 25 1982."

 

(You stated  "One thing I found interesting is the VA state for agents not to rely on the address and to use the phone.  It also has steps to search even the VA medical file."

You can bolster this claim with a copy of that citation. And enclose copies of the info you mentioned above.

I am not sure a CUE is the best way to handle this----this crap has happened before to many vets---

but it would be a start. I think there have been COVA and CAVC cases on this.I will try to find something more.

 

 

 

 

[Buck52]

You may want to read this BVA denial before you file CUE.

https://www.va.gov/vetapp15/Files2/1516618.txt

 

[Berta]

That case regards the "presumptive of regularity" that I am trying to find further references on.

"The claimant may rebut that presumption by submitting clear evidence to the effect that VA's regular mailing practices are not regular or that they were not followed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). "The appellant's statement of non-receipt, standing alone, is not the type of 'clear evidence to the contrary' which is sufficient to rebut the presumption of regularity of the notice." Mindenhall, 7 Vet. App. at 274. Absent evidence that the claimant notified VA of a change of address and absent evidence that any notice sent to the claimant at his last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996)."

It is not the same situation the hadit vet has.

But the citations might help- I cannot find Cross V Brown- yet.

Here is Ashley V Derwinski.

https://veteranclaims.wordpress.com/2013/05/01/federal-circuit-application-presumption-of-regularity-ashley-v-derwinski-2-vet-app-307-309-1992/

I have not found Mindenhall yet but is referenced here:

"The Court reviews the Board's determinations regarding notification and timeliness of an NOD under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  As to the mailing of the RO's decision and notification letter, there is a presumption of regularity under which Government officials are presumed to "have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992).  Although the presumption may be rebutted by clear evidence that the mailing procedures were not regular or were not followed in a particular instance, "[a]n 'assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.'"  Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting Jones v. West, 12 Vet. App. 98,102 (1998))."

http://helpdesk.newmobility.com/index.php?pg=kb.printer.friendly&id=81

In this vet's case-willj57- the VA did have the veterans address the very same day they said they didnt have it.

There are 7224 decisions at the BVA with the terms "undeliverable mail "in them-from 1992 to the first 1/4 of 2018.

In Clark V Nicholson ,the BVA made this point.

"As the April 1987 notice letter was mailed to his correct address and was not returned as undeliverable, the veteran's bare statement of nonreceipt is not sufficient to rebut the presumption of regularity. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (appellant's statement of nonreceipt, without more, is not clear evidence that can be used to rebut the presumption of regularity)."

https://www.va.gov/vetapp09/files1/0903073.txt

I think the presumption of regularity shoud be raised in the CUE. I just posted a draft of it and it can be tweeked with more relevant legal citations.... such as The United States Court of Appeals for Veterans Claims (Court) has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 (1926)). The presumption of regularity attaches to "all manner of VA processes and procedures." See Woods v. Gober, 14 Vet. App. 214, 220 (2000). Thus, it follows that the presumption is applicable to VA employees' theoretical handling of a NOD filed by the Veteran. Absent clear evidence to the contrary, VA is entitled to the presumption that a VA employee would have properly handled the Veteran's NOD had it been filed in a timely manner. In addition, as government employees, employees of the United States Postal System are also entitled to the presumption of regularity in handling and delivering mail, to include any mail sent by the Veteran to VA."https://www.va.gov/vetapp15/Files2/1516618.txt

This is not a regulation, this is basic VA case law and procedure, as determined by the court.

But I wish I could find Cross V Brown, as Jesse Brown as I recall was Secretary in the 1980s,or 1990s I believe and that would show the same Presumptions 0f Regularity were in affect at time the VA denied this hadit vet's claim.