Leonard v. Brown

10 Vet. App. 315, 1997 U.S. Vet. App. LEXIS 491, 1997 WL 341856

• Court: United States Court of Appeals for Veterans Claims
• Decided: June 23, 1997
• Docket: No. 95-1260
• Status: Published

Opinions

HOLDAWAY, Judge:

On August 22,1994, the Board of Veterans’ Appeals (Board or BVA) demed the appellant entitlement to an increased ratmg for a right shoulder disorder and an effective date prior to January 16, 1991, for a total disability rating based on individual unemployability. The appellant filed a request for reconsideration that was received by the BVA on April 11, 1995, seven months and two weeks after the BVA decision. The Chairman of the Board demed the motion on July 12, 1995. Approximately five months later, on December 21, 1995, the appellant filed a Notice of Appeal (NOA) with this Court. Noting that the appellant had not filed his appeal within the statutory 120 days of either the BVA decision or the Chairman’s demal of the motion for reconsideration, the Secretary filed a motion to dismiss for lack of jurisdiction.

I. BACKGROUND

The statutes concerning appeals to this Court require that an appellant file his appeal within 120 days after the notice of the BVA decision is mailed to him and any representative he may have designated. See 38 U.S.C. §§ 7266(a)(1), 7104(e). Case law from this Court has developed the following rules, germane to this case, for construing these statutory provisions. The 120-day time limit is tolled if a claimant files a request for reconsideration with the BVA within the prescribed 120-day period. See Rosler v. Derwinski, 1 Vet.App. 241 (1991). A new 120-day limit begins to run again after the Chairman acts upon the motion. See ibid. Failure to comply with the initial 120-day period, or in the event of a request for reconsideration to the BVA, failure to file within 120 days after the Chairman’s decision, requires dismissal. See Butler v. Derwinski, 960 F.2d 139 (Fed.Cir.1992). There is a presumption of regularity as to the mailing of a decision by the Board; it is presumed there was a proper mailing to both the appellant and his designated representative, if there was, in fact, such a designation. However, if the claimant clearly establishes an “irregular” mailing of the decision, the presumption of regularity is rebutted. If a claimant can shoulder his burden of clearly establishing an irregular mailing, the 120-day time limit will be tolled until such time as the Secretary can establish actual notice. See Hill v. Brown, 9 Vet.App. 246 (1996); Leo v. Brown, 8 Vet.App. 410 (1995); Trammell v. Brown, 6 Vet.App. 181 (1994); Ashley v. Derwinski, 2 Vet.App. 307 (1992). In this case, there is no doubt that the appellant’s NOA was received well after the 120-day period prescribed by statute. He failed to timely file both his request for reconsideration and, following the Chairman’s decision on that motion, his NOA. It is also without dispute that the BVA decision was properly mailed to the appellant on the day the decision was issued. The sole issue presented by this appeal is whether there was a designated representative and, if so, whether there was a defect in the mailing to that person that would toll the running of the statutory period. Complicating the issue in this case is the fact that Block 3, VA Form 23-22, the place for designation of a personal representative, is missing from the form. In an effort to establish the necessary jurisdictional facts to resolve this issue, the Court, by single-judge action, issued various orders to “show cause.” The Secretary made three separate motions to dismiss, with affidavits attached. The appellant responded to the Secretary’s motions, as well as the show cause orders directed to him from the Court. Rather than list these various factual matters in chronological order in a separate “fact” section, it will be clearer to cite to the facts necessary for disposition of this case in the “analysis” section of the opinion.

II. ANALYSIS

The affidavits attached to the record in this case show that the appellant was represented, at the times pertinent to resolving this issue, by the Disabled American Veterans (DAV). Appropriate mailing of the decision was indisputably made to the national headquarters of that organization. However, the mailing to the local office of the DAV in Montgomery, Alabama, was by “flat mail.” See Trammell, 6 Vet.App. at 183. In those cases where there is a designated local representative, previous precedent from this Court has found such mailing to be ineffective within the terms of the statute in effect at the time of the BVA mailing in this case. In other words, if the appellant had designated the local representative in Block 3, VA Form 23-22, as “his” representative, then the flat mail to that individual would be irregular by standards of the statute then in effect (since amended) and the time limit for filing an NOA would thus be tolled. See Hill, Leo, Trammell, and Ashley, all supra. On the other hand, if no local representative was listed in Block 3, or if the organization only was listed in Block 3, without a local address, then there would be no irregular mailing. The mailing to the national headquarters, which was indisputably “regular,” would suffice. The sole factual issue before the Court then is simply, has the appellant clearly established that he designated his local DAV representative in Block 3 of the prescribed form? We reject the proposition that the absence of Block 3, or its illegibility, destroys the presumption of regularity as to the mailing statute. The one has nothing to do with the other. Of course, in the absence of the Block 3, the appellant’s burden is somewhat eased. A forthright, unambiguous, and unrebutted affidavit from him that he had designated his local representative in Block 3 would be accepted. However, in this case, there is no such averment. Instead, the appellant merely stated, in effect, that he had always been represented by Mr. John Archer from the local office of the DAV in Montgomery and that he had “never” been represented by the DAV office in Washington, D.C. Notably missing is the essential fact as to whether he had annotated Mr. Archer’s name or indeed any name in Block 3, VA Form 23-22, together, of course, with the local address. Moreover, the Secretary produced proof that the appellant had in fact been represented by at least five other individuals from the DAV in a variety of proceedings dating back to 1988, including representation by the national office. In fact, the appellant was last represented by Mr. Garold K. Bertrand, Jr., of the national office, at an informal hearing before the BVA on the request for reconsideration referred-to earlier as the last action prior to the filing of the NOA. The appellant has not met his burden of clearly establishing a defect in the mailing. There is no direct evidence that the local representative was designated in Block 3. Moreover, to the extent the appellant’s affidavit implies that he designated Mr. Archer as his sole representative, then the evidence from the Secretary showing representation by several other individuals, including the national office, comprehensively rebuts that statement. From the record before us, the conclusion is inescapable that the representation of Mr. Leonard was “organizational,” not personal. Therefore, the mailing to the national headquarters, the part of the organization that the record shows represented him, conformed with the statute in effect at the time of the BVA decision.

III. CONCLUSION

It follows that the NOA filed in this case was not timely and it must be DISMISSED.