           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                             NO . 08-1381

                                  KENNETH J. IRWIN , APPELLANT ,

                                                  V.


                                      ERIC K. SHINSEKI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                          On Appeal from the Board of Veterans' Appeals


                                       (Decided August 20, 2009)


        Jennifer A. Zajac, of Oceanside, California, was on the pleading for the appellant.

       Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Richard
Mayerick, Deputy Assistant General Counsel; and Gabielle L. Clemons, all of Washington, D.C.,
were on the pleading for the appellee.

           Before GREENE, Chief Judge, and MOORMAN and SCHOELEN, Judges.

       MOORMAN, Judge: On December 7, 2007, the Board of Veterans' Appeals (Board) issued
a decision denying veteran Kenneth J. Irwin's claim for service connection for diabetes mellitus.
On May 2, 2008, the Court received the appellant's Notice of Appeal (NOA). For the reasons
discussed below, the Court holds that because the appellant has not demonstrated that he filed his
NOA with the Court within the judicial-appeal period prescribed by statute, the Court will dismiss
the appeal for lack of jurisdiction.


                                              I. FACTS
       On May 2, 2008, more than 120 days after the Board's decision, the Court received a
document signed by Mr. Irwin and presented on the Court's preprinted NOA form, along with
several pages of correspondence. The preprinted NOA form, in bold lettering at the top of the form,
identifies this Court and states: "Notice of Appeal." It further contains the following preprinted
language: "The following named appellant appeals to the Court from a final Board of Veterans'
Appeals . . . decision." The document also identifies the date of the Board decision as December 7,
2007, and Mr. Irwin's name and address. The document was received from the Board. In the
attached correspondence from Mr. Irwin dated December 14, 2007, which is addressed to the Board,
he stated: "I wish to file a Notice of Appeal to the U.S. Court. I disagree with the decision the Board
of Veterans' Appeals made [o]n my claim." Mr. Irwin had addressed the envelope containing these
documents to the "Board of Veterans['] Appeals, Department of Veterans Affairs, Washington, DC,
20420." The envelope was postmarked "15 Dec 2007" by the U.S. Postal Service, and date stamps
on both the envelope and the documents themselves indicate that the Board received these
documents on January 7, 2008.
        On June 2, 2008, in response to a Court order directing Mr. Irwin, who was pro se at the
time, to explain why the Court should not dismiss his appeal because it was filed more than 120 days
after the mailing of the Board decision, Mr. Irwin states that he "had never received [the Board]
decision dated 7 Dec 07 until mid-May 2008. This is no fault of mine that 120 days had passed
since decision." June 2, 2008, Response to Court Order. Later that month, the Court issued an order
directing the Secretary to file a response and to include a preliminary record evidencing that the
Board decision was properly mailed to Mr. Irwin. A July 11, 2008, response from the Secretary
included a preliminary record and a declaration that a copy of the Board's December 7, 2007,
decision was timely mailed to the appellant. On September 5, 2008, counsel for Mr. Irwin filed a
notice of appearance.
        On November 6, 2008, the Court issued an order (1) directing the Secretary to submit a
memorandum explaining whether the above sequence of events was accurate and, if so, what effects,
if any, those events had on the Court's jurisdiction in this appeal, and (2) directing that Mr. Irwin file
a memorandum in response to the Secretary's memorandum not later than 20 days thereafter. On
November 26, 2008, the Secretary filed his response. The Secretary states that the Board's
computerized appeal tracking system showed that the above sequence of events was correct.
According to the Secretary, Mr. Irwin's documents were "'initially construed as a motion [for
reconsideration] pursuant to [Board] decision dated 12/7/07, but [were] actually a[n] NOA to the
[Court].'" Staff at the Board therefore subsequently mailed the documents to the Court. The
Secretary did not explain why it apparently took the Board four months to construe as an NOA the
documents submitted to the Board that consisted of the Court's preprinted NOA form and

                                                    2
accompanying correspondence, and to forward those documents to the Court. The Secretary asserts
that the Court lacks jurisdiction over this appeal because the Court had not received a timely NOA
from Mr. Irwin.
       On December 2, 2008, Mr. Irwin moved through counsel that this appeal be stayed until the
Court issued a decision in either Boone v. Shinseki, 22 Vet.App. 412 (2009), or Kouvaris v. Shinseki,
22 Vet.App. 377 (2009). The Court granted the relief sought in the motion. The Court issued
decisions in those appeals on March 10, 2009, and on February 25, 2009, respectively. The stay
therefore expired upon the issuance of those decisions, and the preexisting schedule for the filing
of Mr. Irwin's memorandum resumed at the point at which the appeal was stayed. See U.S. VET.
APP. R. 5(b) (providing that "[w]hen a stay expires, the preexisting filing schedule resumes at the
point at which it was stayed"). Mr. Irwin has not filed a response to the Secretary's November 26,
2008, memorandum. On March 26, 2009, the appeal was submitted to this panel for decision and
the parties were so notified.


                                                  II. ANALYSIS
                                               A. Equitable Tolling
       Under 38 U.S.C. § 7266(a),1 in order for a claimant to obtain review of a Board decision by
this Court, the Court must receive the claimant's NOA within 120 days after the date on which the
Board decision was mailed. See Henderson v. Peake, 22 Vet.App. 217, 221 (2008), appeal
docketed, No. 2009-7006 (Fed. Cir. Oct. 7, 2008) (submitted en banc June 29, 2009); Rosler v.
Derwinski, 1 Vet.App. 241, 242 (1991); U.S. VET. APP. R. 4. In Henderson, this Court held that the

       1
           38 U.S.C. § 7266 provides, in pertinent part:

                  (a) In order to obtain review by the Court of Appeals for Veterans Claims of a final
                  decision of the Board of Veterans' Appeals, a person adversely affected by such
                  decision shall file a notice of appeal with the Court within 120 days after the date
                  on which notice of the decision is mailed pursuant to section 7104(e) of this title.
                  (b) An appellant shall file a notice of appeal under this section by delivering or
                  mailing the notice to the Court.
                  (c) A notice of appeal shall be deemed to be received by the Court as follows:
                            (1) On the date of receipt by the Court, if the notice is delivered.
                            (2) On the date of the United States Postal Service postmark stamped on
                            the cover in which the notice is posted, if the notice is properly addressed
                            to the Court and is mailed.



                                                            3
120-day filing requirement under 38 U.S.C. § 7266(a) is jurisdictional and not subject to equitable
tolling. See 22 Vet.App. at 220-21 (holding that "for the civil cases rising from appeals to this
Court, there are no equitable exceptions to the 120-day judicial-appeal period established by section
7266(a)") (citing Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007)).
         In Bowles, the U.S. Supreme Court held that Mr. Bowles's failure to timely file his NOA in
accordance with the statute, 28 U.S.C. § 2107, deprived the appellate court of jurisdiction.
127 S. Ct. at 2366. In so holding, the Supreme Court reasoned: "Congress decides what cases the
federal courts have jurisdiction to consider. Because Congress decides whether federal courts can
hear cases at all, it can also determine when, and under what conditions, federal courts can hear
them." Id. at 2365. The Supreme Court stated: "As we have long held, when an 'appeal has not
been prosecuted in the manner directed, within the time limited by acts of Congress, it must be
dismissed for want of jurisdiction.'" Id. at 2366 (quoting United States v. Curry, 6 How. 106, 113
(1848)). In addressing the appellant's argument that his untimely filing should be excused because
he satisfied the "unique circumstances" doctrine, which had its roots in prior precedent, the Supreme
Court made clear that such doctrine is "illegitimate" because the Court has "no authority to create
equitable exceptions to jurisdictional requirements." Id. at 2366. The Supreme Court noted that if
its holding is thought to be "inequitable," Congress had the power to authorize courts to excuse
compliance with the statutory time limits.
         In Henderson, this Court discussed the effect of Bowles on Bailey v. West, 160 F.3d 1360
(Fed. Cir. 1998), which held that equitable tolling is available for NOAs filed at this Court, and
concluded that the premise upon which Bailey was decided could no longer stand. Applying Bowles,
the Court in Henderson held that because of the jurisdictional nature of the time limit for filing an
NOA, the Court could not consider Mr. Henderson's contention that his service-connected disability
prevented him from timely filing his appeal of the Board decision. Henderson, 22 Vet.App. at 221;
see also Jones (Bobby) v. Peake, 22 Vet.App. 247, 249 (2008) (holding that equitable tolling is
foreclosed by Bowles and Henderson, both supra, and dismissing appeal for lack of jurisdiction).2

         2
           The Court acknowledges the shift in caselaw based on Bowles, supra. Prior to Bowles and Henderson, this
Court had issued Bobbitt v. Principi, 17 Vet.App. 547, 554 (2004) (per curiam order), which held that the misfiling of
a Notice of Appeal with the Board within the 120-day judicial-appeal period would be considered a timely filed NOA
based on the equitable tolling of the judicial appeal period of 38 U.S.C. § 7266. The Court in Bobbitt noted that binding
caselaw required it to conclude that the Court had jurisdiction to review the appeal despite the misfiling of the NOA.

                                                           4
         Henderson and Bowles dictate the outcome here. Congress, in this Court's jurisdictional
statute, 38 U.S.C. § 7266, prescribed the time and manner for filing an appeal to this Court.
Pursuant to the statute, to obtain review by this Court, a person adversely affected by such decision
"shall file a notice of appeal with the Court within 120 days after the date on which notice of the
decision is mailed pursuant to section 7104(e) of this title." 38 U.S.C. § 7266(a) (emphasis added).
As noted above, Henderson specifically held the 120-day appeal period to be jurisdictional. In the
same statutory section, Congress set forth the requirement that the filing of the notice be made with
the Court. 38 U.S.C. § 7266(a). The requirement that the filing be with the Court is again made
clear in subsections (b) and (c) of the same statute. Pursuant to section 7266(b), an appellant "shall
file a notice of appeal under this section by delivering or mailing the notice to the Court." 38 U.S.C.
§ 7266(b) (emphasis added). Section 7266(c) provides the two specific circumstances under which
an NOA "shall be deemed to be received by the Court": (1) on the date of receipt by the Court, if
the notice is delivered; and (2) on the date of the U.S. Postal Service postmark, if the notice is
properly addressed to the Court and is mailed. There are no further exceptions set forth in the
jurisdictional statute. Congress has not authorized this Court to excuse compliance with the
statutory time limit of 120-days and the requirement that the notice be filed with the Court.


The Court, however, first discussed the relevant statutory provisions and clear direction in the appeals notice that
accompanied the Board decision:

                   Nowhere in the text of the statute [(38 U.S.C. § 7266)] has Congress authorized a
                   veteran to file an NOA with a VA regional office (VARO), the Board, the VA
                   medical system, or the VA Office of General Counsel in lieu of submitting it to the
                   Court. . . . In accordance with section 5104(a), VA sends to claimants with each
                   decision of the Board an appeals notice (VA Form 4597) that specifically directs
                   claimants how to appeal to the Court. The appeals notice also instructs a VA
                   claimant that an NOA "must be filed with the Court within 120 days from the date
                   of mailing" of the Board decision, provides the Court's address, and states that
                   while a claimant must mail a copy of the NOA to the VA General Counsel, that
                   mailing "does not take the place of" the NOA that must be filed with the Court.
                   The Federal Circuit has recognized the appeals notice as complying with the
                   requirements of section 5104(a), holding that it adequately explains "how and
                   when" to pursue an appeal to the Court. Cummings v. West, 136 F.3d 1468, 1472-
                   73 (Fed. Cir. 1998), cert. denied, 524 U.S. 954 [(1998)].

        Id. at 550. As discussed above, the Supreme Court decision in Bowles and our Court's decision in Henderson
make clear that the statutory filing deadline in a judicial review statute is not subject to the doctrine of equitable tolling.




                                                              5
       In this case, Mr. Irwin did not file, within 120 days of the mailing of the December 7, 2007,
Board decision, an NOA with this Court as required by 38 U.S.C. § 7266. The Court received
Mr. Irwin's NOA on May 2, 2008, directly from the Board through the mail. The NOA was filed
on that date, a date that is not within the 120-day period provided in the statute. Because the Court
did not receive an NOA from Mr. Irwin within the 120-day period prescribed by 38 U.S.C.
§ 7266(a), this Court lacks jurisdiction over this appeal.
                                  B. Motion for Reconsideration
       That is not the end of the matter. The Court must determine whether the Court's decisions
in Boone or Kouvaris, both supra, apply here. In Boone, this Court held that a pending motion for
Board reconsideration served to abate the finality of the Board decision, and the Court dismissed the
appeal for lack of jurisdiction. 22 Vet.App. at 415. The Court held that Mr. Boone's submission to
the VA regional office (RO) was not an NOA "because the document and the circumstances
surrounding its filing evidenced no clear intent to seek judicial review." Boone, 22 Vet.App. at 414.
The Court concluded that the filing, however, constituted a motion for Board reconsideration, which
was still pending at VA. Id. In Kouvaris, 22 Vet.App. at 379-80, the Court held that, although the
document filed with the Board within the 120-day judicial-appeal filing period was not an NOA
because it lacked any indicia of intent to seek review by the Court, the document constituted a
motion for reconsideration of the Board's decision, the motion for reconsideration was still pending
at VA, and the finality of the Board's decision was abated by the filing.
       Unlike Boone and Kouvaris, where the documents filed by each veteran failed to explicitly
express an intent to seek judicial review, here the documents filed by Mr. Irwin clearly expressed
an intent to seek judicial review by this Court. See Boone, 22 Vet.App. at 414 (holding that a
"review of Mr. Boone's submission to the RO . . . and the circumstances surrounding its filing
evidence no clear intent to seek judicial review," but concluding that the filing constituted a motion
for reconsideration); Kouvaris, 22 Vet.App. at 380 (holding that the Form 21-4138 filed at the Board
failed "to explicitly express an intent to seek judicial review" but that it met the regulatory
requirements for a motion for reconsideration). There was no ambiguity in the documents that the
Board received from Mr. Irwin on January 7, 2008, as to whether he sought judicial review. He
clearly did, as he submitted both an NOA on the preprinted form and correspondence stating the he
"wish[ed] to file a [NOA] to the U.S. Court." Neither of those documents expressed a request for

                                                  6
reconsideration by the Board. In addition, Mr. Irwin did not file a request for Board reconsideration
with the Board within the 120-day period that would abate the finality of the 2007 Board decision.
See Linville v. West, 165 F.3d 1382, 1386 (1999).
                               C. Timely Receipt of Board Decision
       Mr. Irwin, in his June 2008 response, contends that he had not received a copy of the
December 7, 2007, Board decision until mid-May 2008. However, the evidence does not support
this contention, as documents sent to the Board in January 2008 by Mr. Irwin demonstrate that he
had received the Board's decision not later than December 14, 2007, because that is the date that
appears on the documents that Mr. Irwin signed. Further, Mr. Irwin specifically referred to the
December 7, 2007, Board decision in the correspondence accompanying the NOA, and he dated that
correspondence December 14, 2007.
       Moreover, this Court has long held that "[t]here is a presumption of regularity under which
it is presumed that government officials 'have properly discharged their official duties.'" Ashley v.
Derwinski, 2 Vet.App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1,
14-15 (1926)). Although this presumption is not absolute, the burden is on the appellant to present
clear evidence that VA did not follow its regular mailing practices or that its practices were not
regular. Clarke v. Nicholson, 21 Vet.App. 130, 133 (2007); see also Jones v. West, 12 Vet.App. 98,
102 (1998) (noting well-established caselaw that an assertion of nonreceipt, standing alone, does not
rebut the presumption of regularity that VA properly mailed notice of its decision). In this case,
Mr. Irwin has not presented any evidence, let alone clear evidence, to rebut the presumption of
regularity that VA mailed him notice of the December 7, 2007, Board decision. To the contrary, the
Secretary has submitted evidence showing that VA properly discharged its mailing duties here. The
Secretary's July 11, 2008, response filed with the Court included the declaration from the director
of the Management and Administrative Service of the Board, who reviewed the claims file and
VACOLS (the Veterans Appeals Control and Locator System), the Board's computerized tracking
system, and stated that a copy of the December 7, 2007, Board decision was mailed to Mr. Irwin on
December 7, 2007, to an address that Mr. Irwin had indicated to be his mailing address. July 11,
2008, Response, Exhibit, Declaration at para. 3. The declarant noted that this address reflected the
change of address for Mr. Irwin that it had received in October 2007. The declarant further stated
that there was no indication in the claims file or in VACOLS that the Board decision was returned

                                                 7
by the U.S. Postal Service as undeliverable. Id. The Secretary maintains that the December 7, 2007,
Board decision was mailed to Mr. Irwin at his last known address pursuant to the requirements of
38 U.S.C. § 7104(e). The Court concludes that the Secretary properly mailed the December 7, 2007
Board decision to Mr. Irwin.
                                   D. Notice of Appellate Rights
       Finally, the Court notes that Mr. Irwin was fully informed of his appellate rights, which
included notification that his NOA must be filed with the Court. Accompanying the December 7,
2007, Board decision was a notice of appellate rights. See 38 U.S.C. § 5104(a) (providing that when
VA makes a decision as to a claim for benefits, the Secretary "shall, on a timely basis, provide the
claimant . . . notice of such decision . . . that shall include an explanation of the procedure for
obtaining review of the decision"). The notice of appellate rights provided by VA clearly stated that
in order to appeal the Board decision, Mr. Irwin had to file an appeal with the Court. The notice of
appellate rights is contained on VA Form 4597 and is entitled, in boldface, "Your Rights to Appeal
our Decision." June 13, 2008, Secretary's Response to May 20, 2008, Court Order, Attachment.
The notice stated that if "you are not satisfied with the Board's decision," one option is to "Appeal
to the United States Court of Appeals for Veterans Claims (Court)." The notice stated: "You have
120 days from the date this decision was mailed to you (as shown on the first page of this decision)
to file a Notice of Appeal with the Court." Id. The notice also provided instructions on how to
appeal to the Court. The notice instructed that to appeal to the Court, the Notice of Appeal must be
sent to the Court:
       How do I appeal to the United States Court of Appeals for Veterans Claims?
       Send your Notice of Appeal to the Court at:

                       Clerk, U.S. Court of Appeals for Veterans Claims
                              625 Indiana Avenue, NW, Suite 900
                                 Washington, DC 20004-2950

Id. (boldface in original). The notice also stated: "To ensure full protection of your right of appeal
to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other
VA office." Id. (boldface in original). The U.S. Court of Appeals for the Federal Circuit has
recognized the appeals notice as complying with the requirements of section 5104(a), holding that
it adequately explains "how and when" to pursue an appeal to the Court. Cummings v. West,

                                                  8
136 F.3d 1468, 1474 (Fed. Cir. 1998) (holding that Board notice was sufficient under 38 U.S.C.
§ 5104(a) and that VA was not required to provide detailed descriptions or information; "[t]he
statute requires only that the Secretary explain how and when to pursue reconsideration by the Board
and appeal to the court."), overruled in part on other grounds, Bailey, 160 F.3d at 1368.
Accordingly, the Court concludes that the notice of appellate rights clearly stated that Mr. Irwin
must file his NOA with this Court and that filing an NOA with the Board was not sufficient to
ensure his right to appeal to the Court.
        Significantly, Mr. Irwin was again fully and clearly advised of the requirement to file his
NOA with the Court on the one-page preprinted NOA form itself. May 2, 2008, Notice of Appeal.
The preprinted NOA form used by Mr. Irwin contained instructions set out in a box:
                                           INSTRUCTIONS
        Send this Notice of Appeal (NOA) (original only) to:

                          Clerk, US Court of Appeals for Veterans Claims
                                625 Indiana Avenue, NW, Suite 900
                                   Washington, DC 20004-2950

Id. (underlining, boldface, and italics in original). The instructions further stated: "It will be in time
if it is properly addressed to the Court and bears a legible postmark affixed by the United States
Postal Service (USPS) within 120 days after the mailing date of the [Board] decision that you are
appealing." Id. (boldface and italics in original). The form further instructed that the NOA may be
sent by facsimile transmission, provided the Court's facsimile number, and also stated that, if means
other than USPS were used, "the NOA will be too late if it arrives at the Court after the 120-day
time limit. The Court cannot extend the time limit." Id. (underlining, boldface, and italics in
original).
        Because the notice of appellate rights provided Mr. Irwin with the proper procedure for
seeking judicial review of the Board's decision and Mr. Irwin did not file an NOA with the Court
within 120 days of the mailing of the Board's decision, this Court lacks jurisdiction to consider his
appeal, and this appeal must be dismissed.
        The Court notes that there is no indication that Agency action frustrated the notice of
appellate rights that the appellant received. The appellant simply mailed the NOA to the wrong


                                                    9
entity in noncompliance with the jurisdictional statute and his notice of appellate rights. The Court
notes that there was no communication between Mr. Irwin and the Board that indicated that VA
would take any action on the documents received by the Board in January 2008. For example, there
is no indication that VA informed Mr. Irwin that VA would file his appeal for him (or would do so
within the 120-day appeal period) or that VA assisted him in filling out the preprinted NOA form
and led him to believe that VA would file his appeal. Nor is there any indication that VA informed
Mr. Irwin, upon receipt of his documents in January 2008, that VA would consider his filing to be
a motion for Board reconsideration.
       The Court recognizes that the record shows that the Board did not transmit Mr. Irwin's
documents to this Court until May 2008, approximately four months after it had received the
documents from Mr. Irwin in January 2008, which was a date within the 120-day judicial-appeal
period. It is not clear why the Board would hold the documents for such a long period prior to
mailing them to the Court. In the absence of evidence to the contrary, however, the Court will not
presume a motive on the Secretary's part that is inconsistent with the pro-veteran, nonadversarial
process that is applicable to proceedings within VA, including at the Board. Nevertheless, the Court
is concerned that VA had the documents for four months and did nothing. Unfortunately, the
statutory jurisdictional requirement of 120 days for filing Notices of Appeal with the Court is not
subject to equitable principles. Without congressional authority, the Court lacks the jurisdiction to
impose a remedy in this appeal.


                                       III. CONCLUSION
       Upon consideration of the pleadings of the parties and the foregoing analysis, the Court holds
that it lacks jurisdiction over the December 7, 2007, Board decision because the appellant did not
timely file an NOA in this Court. This appeal is DISMISSED.




                                                 10
