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6.4. Presumption of Regularity
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). This presumption is a legal fiction that allows the Court to assume, without proof or evidence, that VA did whatever action it was supposed to have done. For example, a common use of the presumption of regularity is when there is a dispute about whether VA mailed a document to a claimant. The Court will presume that VA mailed the document to the claimant on the proper date and to the proper address even if there is nothing in the C-file about the mailing unless the claimant can show that the mailing did not happen that way.
The presumption of regularity does have some limits. First, the presumption of regularity applies only when the performance of the procedure appears regular. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (noting that the presumption of regularity "allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary" (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001))). The mailing of notices discussed above is a prime example. If the C-file contains some notices, but not others, the absence of letters seeking information or providing the purportedly requested information, may show that the mailing procedure was not performed regularly, such that the presumption is not applicable. See U.S. VET. APP. R. 28.1(a)(1) ("The record of proceedings shall contain . . . [documents] relevant to the issues before the Board that are on appeal to the Court"). 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)).