CAVC–Rios v. Mansfield (2007)–Presumption of Regularity


For years we have been telling Vets to mail important correspondence to the VA by Certified Mail, Return Receipt Requested (CM3R). There is a reason for this. I have personally had more than one service officer tell me this is a waste of time as VA can contest what you mailed to them. Not so. If you have recently received your SOC and are now filing a Form 9 Substantive Appeal and representing yourself pro se, this is an excellent method. The CAVC recognizes that you would not go to great lengths to mail the RO an 8 ½ X 11 glossy photo of your grandchild via CM3R at about the same time. It is far more likely that you blew the $6.45 on mailing the F-9. 

     That the VA received it is called the common law mailbox rule. This is an adjunct of its close relative, the presumption of regularity of the mail. If you can prove you mailed something via the USPS and you either have a witness who was with you when you mailed it, or you are really good friends (or even having an affair) with your local postmaster/mistress and they will testify in your behalf, then you can prove the common law method. If VA mails something to you (they almost never mail it CM3R) and they have your address correct, then it is assumed that you received it. So, basically Vets have to prove via receipt or testimony that they aren’t lying and VA doesn’t. Interesting concept, huh? We won’t go into why that law sucks today.

 

     Enter one Rafael G. Rios with a Notice of Appeal (NOA) to the CAVC who also mailed a copy of it to the Office of the VA General Counsel just to be safe.  He did all this through the Puerto Rico Public Advocate for Veterans Affairs (PRPAVA) who duly recorded the transactions in their books. Turns out this was a very smart move on Rafael’s part. The CAVC rules he didn’t send it, the VA Secretary jumps in and starts harping about how the PRPAVA once mailed an NOA to the wrong address in the past and that this is proof against Rafael’s assertion. Well, ladies and gentlemen, the CAVC promptly takes Mr. Mansfield aside and points out how he has the facts so confused that he should just shut up, sit down and start taking notes on what the Court is getting ready to tell him. Which he does. Smart move on Mr. Mansfield’s part.  He didn’t lose as much face this way. 

    All in all, this is a lovely decision that goes in the Veteran’s favor because Rafael was probably a Boy Scout and was prepared.  As we also mentioned, this is a perfect illustration of CYA. You, as the Vet, no matter how many times you hear the phrase “Veteran friendly environment”, should keep your wallet in your front pocket and sit in a corner so no one can get behind you. This is why this author and most of his moderator friends won their claims before the VA. We trusted no one to do it for us; we CM3Red everything we sent VA or hand delivered it and got a receipt; and we represented ourselves.  Which is certainly not to say that there aren’t some really super VSOs out there. Just because we haven’t met any yet doesn’t mean they don’t exist. Y’all believe in God, don’t you? I rest my case.

 

     So, without further ado, we present Rafael’s tete a tete with Mr. Mansfield…

 

http://www.uscourts.cavc.gov/documents/Rios_04-0354.pdf


     The part I like best is when Judge Kasold freely admits they actually lose things in the hallowed halls of the CAVC. Perish the thought! That stupidity should never happen at any level of the VA system-ever. With that admission of fact in mind, it is all the more reason to have proof of mailing to any VA entity. Forewarned is forearmed in this business. Trust us.

About asknod

VA claims blogger
This entry was posted in Important CAVC/COVA Ruling, Presumption of Regularity and tagged , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.