ORDER
On August 3, 1995, thе appellant filed a Notice of Appeal (NOA) from a January 10, 1995, Board of Veterans’ Appeals (Board or BVA) decision. Because the NOA was received more than 120 days after the date stamped on the BVA decision, the Court, on September 13, 1995, ordered the appellant to show cause, within 20 days, why this appeal should not be dismissed for lack of jurisdiction. On September 21, 1995, the appellant filed a response asserting that he has never received an offiсial notice of the Board’s January 10, 1995, decision. Further, the appellant states that the decision was “sent to an attorney using my mailing address”, that the attorney nоtified him of the decision, and that this was the first time he had been informed of the decision. The appellant has provided the Court a copy of the transmittal еnvelope which is addressed to “Bill Jacobs, Esq.” at the appellant’s address in Iowa and bears a postmark of May 30, 1995. The return address listed on the enveloрe is the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.
It appears that at some point after the claims folder was sent to the Board in March 1993 and before the Board issued its Januаry 10, 1995, decision, the veteran moved from Texas to Iowa, and jurisdiction over the file was transferred from the Houston VARO to the Des Moines, Iowa, VARO. The materials the veteran submitted to those VAROs after the file was sent to the Board and that reflected his new mailing address, P.O. Box 3397, Dubuque, Iowa 52004, do not appear to have been аssociated with the claims folder prior to the issuance of the January 10, 1995, Board decision.
Deck, para. 5.
This Court has held that there is a “presumption of regularity”, as applied to the mailing of BVA decisions pursuant to 38 U.S.C. § 7104(e), that “‘the Secretary and the BVA properly discharged [their] official duties by mailing a copy of a BVA decision tо the claimant and [to] the claimant’s representative, if any, on the date the decision is issued’, and that that presumption can be overcome only by ‘сlear evidence to the contrary”’. Davis v. Brown,
Absent any evidence that the appellant took affirmative steps specifically to notify VA of an address chаnge after filing a VA Form 1-9 (Substantive Appeal to the BVA) and absent evidence that mailings to the address appearing on that form had been returned as undeliverable, the BVA is entitled to rely on that address as being the veteran’s last known address and to use it for purposes of mailing a copy of its decision. See Thompson v. Brown,
In this case, unlike in Thompson, the apрellant had taken affirmative steps specifically to notify VA of his address change after the file had been sent to the Board (thus after he had filed his VA Form 1-9) and before the Board issued its decision; however, the appellant’s notification was sent to the Houston, Texas, and Des Moines, Iowa, ROs and not the Board. The issue before the Court is whether the appellant’s notification to VA through the ROs of his new mailing address in Iowa was sufficient notice to require the Board to have mailed its decision to his Iowa address. The new address disclosed in the claims file should have been associated with the claims file at the Board prior to the Bоard’s issuance of the January 1995 decision; the RO was obligated to inform the Board of the new address, or to follow through on the Board’s instructions to ascertain the new address itself. See Bell v. Derwinski,
Accordingly, the Court finds that the evidence is sufficient to rebut the presumption of regularity, and holds that the Secretary has failed to prove compliance with the provisions of 38 U.S.C. § 7104(e) requiring the BVA to mail a copy of its decision to the claimant’s last known address. See Thompson and Hyson, both supra. The Court thus holds that the appellant’s 120-day judicial appeal period began to run when the defect in providing a copy of the BVA decision to him was cured by his actual receipt sometime after May 30, 1995, the date on which the Des Moines RO mailed a copy of the BVA decision to him. As to the possibility of the defective mailing being cured by the appellant’s actual receipt of a copy of the BVA decision, .the Secretary has offered no evidence of the date of actual receipt by the appellant, although, bаsed on the appellant’s assertion that he had received notification of the Board decision and his submission of a copy of the transmittal envelоpe which bears a postmark of May 30, 1995, it seems likely that that occurred sometime between the May 30,1995, date of mailing and the August 3, 1995, date of filing the NOA — a period оf less than 120 days. The Court thus holds that the 120-day NOA filing period had not expired prior to the Court’s receipt of the NOA and that the NOA was thus timely filed. See Davis,
On consideration of the foregoing, it is
ORDERED that the Secretary, within 30 days after the date of this order, file with the Clerk and serve on the appellant the designation of the record on appeal.