Veteranclaims’s Blog

May 1, 2013

Federal Circuit Application, Presumption of Regularity; Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992)

Excerpt from decision below:

“This case presents a narrow question of law: what evidence must the VA consider when evaluating whether a veteran has rebutted the presumption of regularity?

A
The presumption of regularity “provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.” Miley v. Principi, 366 F.3d 1343,
1347 (Fed. Cir. 2004)”
.
===========================

“The Veterans Court has developed a specific process to evaluate whether the veteran has rebutted the presumption. Beginning with Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992), and continuing in a long line of cases, the Veterans Court requires clear evidence that the VA’s normal mailing practices were not followed. If the veteran presents clear evidence to rebut the presumption, the
6 HARVEST TOOMER v. SHINSEKI

burden then shifts to the government to affirmatively prove that they followed their normal practices and mailed the decision. Sthele v. Principi, 19 Vet. App. 11 (2004), provides a good example of the application of the Ashley framework.”
===========================

“We agree with Toomer that the second mailing is at least some evidence that first mailing was irregular. However, in evaluating Toomer’s evidence of irregularity, the Veterans Court only noted his contact with the Board
stating that he never received a copy of his decision. Order at 2. The Veterans Court did address the alleged irregularities in the second mailing, but only with regard to Toomer’s equitable tolling arguments. Id. (Toomer “fails to explain how the Board’s mailing of an unsigned Board decision in August excuses his untimely filing.”).
The irregularities in the second mailing should have been considered when the Veterans Court weighed Toomer’s evidence of rebuttal of the presumption of regularity.
For instance, the Veterans Court has held that a handdated, un-signed Board opinion “does not appear to be regular on its face” and was not entitled a presumption of regularity. Alexander v. Principi, No. 04-62, 2004 WL 728142 (Vet. App. Mar. 16, 2004) (non-precedential)(finding that an unsigned, hand-dated Board decision did not satisfy the Secretary’s obligation to prove “the date on which the notice of the decision was mailed”).
The Veterans Court also failed to consider Toomer’s evidence separately from the Secretary’s.
The Veterans Court considered Toomer’s call to the VA but found it “does not constitute clear evidence…especially in light of the evidence provided by the Secretary” including the Gibson affidavit. Id. This was incorrect under Ashley. The proper question is whether Toomer’s evidence—taken as a whole—constitutes clear evidence to rebut the presumption of regularity. 2 Vet. App. at 309. Only then should
HARVEST TOOMER v. SHINSEKI 9

the Veterans Court consider rebuttal evidence from the Secretary.
Because the Veterans Court erred as a matter of law in failing to consider the totality of Toomer’s irregularity evidence, and in weighing the Secretary’s rebuttal evidence together with Toomer’s evidence, we remand the case for a correct application of the Ashley framework.”
===========================

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HARVEST O. TOOMER,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7130
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4086, Judge Bruce E. Kasold.
______________________
Decided: May 1, 2013
______________________
ETHAN Y. LEE, Milbank, Tweed, Hadley & McCloy,
LLP, of New York, New York, argued for claimantappellant.
With him on the brief was LAWRENCE KASS.
2 HARVEST TOOMER v. SHINSEKI

TARA K. HOGAN, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondentappellee.
With her on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and TODD M. HUGHES, Deputy Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General Counsel, and CHRISTA A. SHRIBER
Attorney, United States Department of Veterans Affairs,
of Washington, DC.
______________________
Before LOURIE, CLEVENGER, and REYNA, Circuit Judges.
CLEVENGER, Circuit Judge

Harvest O. Toomer (“Toomer”) appeals the United States Court of Appeals for Veterans Claims (“Veterans Court”) dismissal of his disability claim for failure to file a Notice of Appeal with 120 days of his Board of Veterans’ Appeals (“Board”) decision, as required by 38 U.S.C. § 7266(a). Toomer v. Shinseki, No. 09-4086 (Vet. App. Mar. 12, 2012) (“Order”). Because the Veterans Court erred as a matter of law in failing to consider Toomer’s evidence rebutting the presumption that the Board mailed his decision on the day it was decided, we vacate and remand.

I
Toomer served in the Army on active duty from 1971 to 1974. After his service, Toomer sought disability benefits for degenerative disc disease. In September 2004, the Department of Veterans Affairs (“VA”) Regional Office denied Toomer’s claim, finding that he did not prove that his current disability was service connected. Toomer appealed to the Board, which again denied his claim on
HARVEST TOOMER v. SHINSEKI 3

the merits. A33. The Board’s decision was issued on June
2, 2009.
Toomer alleges that he never received a copy of the
Board decision purportedly mailed on June 2. Toomer
called the Board on July 27, 2009, and requested information
about his case. The VA indicated that it would
send him another copy of his Board decision.
On August 4, the VA mailed Toomer a packet containing
four documents. The first document is a cover letter
stating:
On June 02, 2009 the [Board] entered a decision
in your appeal, a copy of which was mailed to your
most recent address of record at that time. However,
on July 27, 2009 you informed VA that you
had not yet received your copy.
I am furnishing you with another copy of the
Board’s June 02, 2009 decision.
A37. This document is date-stamped August 4, 2009, and
is signed by a member of the Decision Team Support
Division. Id. The second document is a copy of the VA’s
cover letter that was sent with the alleged first mailing.
This document is hand-dated “6/02/09.” A10. The third
document is a copy of Toomer’s Board decision denying
him service connection on the merits of his case. A11. This
document is also hand-dated “6/02/09,” and on the last
page there is a signature block which is stamped “FILE
COPY.” A18. There is no Veterans Law Judge signature
anywhere on the document. Finally, the fourth document
is VA Form 4597, which alerts the veteran to his or her
appeal rights. A19. VA Form 4597 states that the Veteran
has 120 days “from the date this decision was mailed to
you (as shown on the first page of this decision)” to file an
appeal to the Veterans Court.
4 HARVEST TOOMER v. SHINSEKI

Toomer reviewed the materials in the packet sent by
the VA, and filed his notice of appeal to the Veterans
Court on October 28, 2009, within 120 days of August 4,
but outside of the 120-day window from June 2.
The Veterans Court ordered Toomer to show cause
why his appeal should not be dismissed for failing to file
within 120 days of June 2.
In response, Toomer made two arguments. First,
Toomer argued that the VA’s first mailing should not be
entitled to the presumption of regularity. Toomer also
asked that the Veterans Court equitably toll the filing
period because Toomer was misled by the VA’s August 4
cover letter. The Veterans Court rejected both of the
arguments and dismissed Toomer’s appeal.
The Veterans Court did not substantively consider
Toomer’s equitable tolling argument because of our decision
in Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir.
2009) (en banc) (“Henderson I”), holding that the 120-day
limit to file a Notice of Appeal was jurisdictional and
could not be equitably tolled. While Toomer’s appeal of
the Veterans Court decision was pending before our court,
the Supreme Court decided Henderson v. Shinseki, 131
S.Ct. 1197 (2011) (“Henderson II”), reversing our prior
decision and holding that the 120-day appeal period was
not jurisdictional and could be equitably tolled.
In light of this change in the law, we remanded Toomer’s
appeal to the Veterans Court for consideration of
Toomer’s equitable tolling arguments. Toomer v. Shinseki,
No. 2010-7120, 424 F.App’x 950 (Fed. Cir. May 25, 2011).
On remand, the Veterans Court again dismissed Toomer’s
appeal as untimely. Order at 3. Toomer now appeals to
our court for the second time, alleging that the Veterans
Court legally erred in assessing his claim of rebuttal of
the presumption that the VA’s first mailing was regular.
In the alternative, Toomer argues that he is entitled to
equitable tolling.
HARVEST TOOMER v. SHINSEKI 5

II
Our jurisdiction to review CAVC decisions is generally
limited to questions of law which we review de novo. 38
U.S.C. § 7292(a); Willsey v. Peake, 535 F.3d 1368, 1370-73
(Fed. Cir. 2008) (explaining this Court’s rule of law jurisdiction).
This case presents a narrow question of law: what evidence must the VA consider when evaluating whether a veteran has rebutted the presumption of regularity?
A
The presumption of regularity “provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.” Miley v. Principi, 366 F.3d 1343,
1347 (Fed. Cir. 2004)
. As relevant to this case, the VA is
required to mail a date-stamped, signed copy of the VA’s
decision to the veteran and his designated representative,
if any. See 38 U.S.C. § 7104(e) (the VA must mail the
Board decision to the Veterans address of record, and the
Veterans’ representative, if any); 38 C.F.R. § 20.1100(a)
(“All decisions of the Board will be stamped with the date
of mailing on the face of the decision”); VA Chairman
Memorandum No. 01-06-09 (Board decision must be
signed by the Veterans Law Judge on the last page.).
While the VA is entitled to the presumption that it
mails a decision on the date it issues, Chute v. Derwinski,
1 Vet. App. 352, 353 (1991), the presumption is not absolute.
The Veterans Court has developed a specific process to evaluate whether the veteran has rebutted the presumption.
Beginning with Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992), and continuing in a long line of cases, the Veterans Court requires clear evidence that the VA’s
normal mailing practices were not followed.
If the veteran presents clear evidence to rebut the presumption, the
6 HARVEST TOOMER v. SHINSEKI

burden then shifts to the government to affirmatively prove that they followed their normal practices and mailed the decision. Sthele v. Principi, 19 Vet. App. 11 (2004), provides a good example of the application of the Ashley framework.
In Sthele, the Veterans Court first considered the entirety
of the veteran’s irregularity evidence, id. at 17-18, before
turning to the Secretary’s affirmative evidence of mailing,
id. at 18-19. Because the veteran’s file contained several
misaddressed documents and the VA’s evidence “fail[ed]
to portray a system imbued with consistency or uniformity,”
id. at 18, the Veterans Court held that the veteran
had overcome the presumption of regularity. See also
Crain v. Principi, 17 Vet. App. 182 (2003) (finding mailing
irregular when VA used the incorrect zip code); Thompson
v. Brown, 8 Vet. App. 169 (1995) (separately examining
veteran’s irregularity evidence and Secretary’s affirmative
evidence of mailing).
Accordingly, the Veterans Court must consider all relevant evidence of irregularity when evaluating a veteran’s challenge to the presumption of regularity. While we agree that the veteran must present clear evidence of
irregularity, the Veterans Court may not unduly limit its consideration of the evidence the veteran has presented.

Under Ashley the Veterans Court must first consider the totality of the evidence the veteran presents to rebut the presumption, and then, if the Veterans Court determines it rises to the level of clear evidence, consider if the government
has shown by the preponderance of the evidence that the challenged action actually occurred.

B
In this case, Toomer presented two pieces of evidence to rebut the presumption that the Board mailed its decision on June 2. First, Toomer noted that he called the VA to inquire about the status of his case in late July. This is
certainly relevant to the question of whether the VA
HARVEST TOOMER v. SHINSEKI 7

mailed the decision in June. It does not, however, alone rise to the level of clear evidence of irregularity. See Crain v. Principi, 17 Vet. App. 182, 186 (2003). (“An assertion of nonreceipt of a VA decision alone does not establish the “clear evidence” needed to rebut the presumption of regularity of the mailing.”).
Second, Toomer in essence relies on Ashley to argue that the contents of the second mailing are additional evidence of the first mailing’s irregularity. For instance, while the August cover letter in the second mailing was date stamped, the remaining documents were only handdated, and the Board opinion he received was conspicuously missing a signature in the signature block. Although Toomer had no way of assessing the consequences of a hand-dated and unsigned opinion, these documents could be evidence that there was no first mailing, or that
a Veterans Law Judge never signed his decision.
The Secretary argues that Toomer’s second copy was not irregular. The Secretary notes that no VA regulation or policy requires that a second, courtesy copy be signed and date-stamped. The Secretary asserts in his briefing that once a veteran’s board decision is issued, his file—containing a copy of the original signed and date-stamped Board decision—is returned to the veteran’s Regional
Office. The Secretary posits that by the time Toomer requested a second copy, his decision was no longer in the possession of the Board. Respondent’s Brief at 19. Apparently the Board merely printed a second copy from their files and mailed it to Toomer. This also explains how the VA was able to present a signed, date-stamped copy of Toomer’s decision to the Veterans Court during Toomer’s
appeal.
To support its position that the VA mailed Toomer’s decision on June 2, 2009, the VA submitted a declaration from Wayne Gibson, Director of Office Management,
Planning, and Analysis for the Board. A46-48. Mr. Gibson
8 HARVEST TOOMER v. SHINSEKI

averred that, based on the Board computerized tracking system, a copy of the June 2, 2009 decision was mailed to Toomer’s current address. A46-47. The Veterans Court considered this evidence and concluded that Toomer failed
to rebut the presumption of regularity. Order at 2.
We agree with Toomer that the second mailing is at least some evidence that first mailing was irregular. However, in evaluating Toomer’s evidence of irregularity, the Veterans Court only noted his contact with the Board
stating that he never received a copy of his decision. Order at 2. The Veterans Court did address the alleged irregularities in the second mailing, but only with regard to Toomer’s equitable tolling arguments. Id. (Toomer “fails to explain how the Board’s mailing of an unsigned Board decision in August excuses his untimely filing.”).
The irregularities in the second mailing should have been considered when the Veterans Court weighed Toomer’s evidence of rebuttal of the presumption of regularity.
For instance, the Veterans Court has held that a handdated, un-signed Board opinion “does not appear to be regular on its face” and was not entitled a presumption of regularity. Alexander v. Principi, No. 04-62, 2004 WL
728142 (Vet. App. Mar. 16, 2004) (non-precedential)(finding that an unsigned, hand-dated Board decision did not satisfy the Secretary’s obligation to prove “the date on which the notice of the decision was mailed”).
The Veterans Court also failed to consider Toomer’s evidence separately from the Secretary’s. The Veterans Court considered Toomer’s call to the VA but found it
“does not constitute clear evidence…especially in light of the evidence provided by the Secretary” including the Gibson affidavit. Id. This was incorrect under Ashley. The proper question is whether Toomer’s evidence—taken as a
whole—constitutes clear evidence to rebut the presumption of regularity. 2 Vet. App. at 309. Only then should
HARVEST TOOMER v. SHINSEKI 9

the Veterans Court consider rebuttal evidence from the Secretary.
Because the Veterans Court erred as a matter of law
in failing to consider the totality of Toomer’s irregularity
evidence, and in weighing the Secretary’s rebuttal evidence
together with Toomer’s evidence, we remand the
case for a correct application of the Ashley framework.

III
Toomer also argues that he is entitled to equitable
tolling of the appeal period under Henderson II, 131 S.Ct.
1191 (2011). We need not reach this issue. If the Veterans
Court on remand decides that Toomer never received the
June 2 mailing, then Toomer’s appeal was filed within the
120-day deadline and Toomer does not need to resort to
equitable tolling. Alternatively, if the Veterans Court
concludes that Toomer did not overcome the presumption
of regularity, then Toomer would not be entitled to equitable
tolling because he cannot show that the government
violated its procedures with regard to his Board decision.
See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96
(1990) (allowing equitable tolling “where the complainant
has been induced or tricked by his adversary’s misconduct
into allowing the filing of the deadline to pass.”).
IV
For the reasons set forth above we vacate and remand
Toomer’s appeal to the Veterans Court for a correct application
of the Ashley framework.
VACATED AND REMANDED
COSTS
No costs.

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