           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                               NO . 00-1263

                                  ROBERT K. CLARK, APPELLANT ,

                                                    V.


                                    ANTHONY J. PRINCIPI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                          On Appeal from the Board of Veterans' Appeals



                                       (Decided June 14, 2001 )


       Gordon W. Sargeant and William W. McLemore (non-attorney practitioner), both of Austin,
Texas, were on the pleadings for the appellant.

      John H. Thompson, Acting General Counsel; Ron Garvin, Assistant General Counsel;
Thomas A. McLaughlin, Special Assistant to the Assistant General Counsel; and Cristine D.
Senseman, all of Washington, D.C., were on the pleadings for the appellee.

       Before KRAMER, Chief Judge, and FARLEY and GREENE, Judges.

       KRAMER, Chief Judge: On June 30, 2000, the appellant filed, through counsel, a Notice
of Appeal (NOA) from a June 29, 1999, Board of Veterans' Appeals (Board or BVA) decision that,
inter alia, denied his claim for an effective date prior to February 27, 1995, for the award of service
connection for asthmatic bronchitis. The appellant's NOA was filed with the Court 367 days after
the date stamped on the Board's June 1999 decision. On September 8, 2000, the Secretary filed a
motion to dismiss the appeal for lack of jurisdiction because the appellant failed to file a timely
NOA. For the reasons that follow, the Court will grant the Secretary's motion and will dismiss the
appellant's appeal for lack of jurisdiction.
                                        I. BACKGROUND
        On October 17, 2000, the appellant, pursuant to a Court order, filed a response to the
Secretary's motion to dismiss. In his response, the appellant argued that the Secretary's contention
that notice of the June 1999 Board decision was mailed to him on June 29, 1999, was "contrary to
the evidence of record in the claims file." Response at 1. The appellant asserted that the BVA had
conceded that it mailed notice of its June 1999 decision to him on May 8, 2000, and attached to his
response a copy of a letter from the Board that he asserted contained that concession. Exhibit 1. The
appellant requested that the Court deny the Secretary's motion to dismiss because his NOA was
timely filed, within 120 days after the May 8, 2000, date of mailing.
        The Court, on October 25, 2000, ordered the Secretary to file a preliminary record evidencing
that notice of the June 29, 1999, Board decision was mailed to the appellant and his representative
pursuant to the requirements of 38 U.S.C. § 7104(e). On November 20, 2000, the Secretary filed a
response to the Court order to which he attached the declaration of Nancy D. Stackhouse, Director
of the Administrative Service of the Board. Ms. Stackhouse stated in her declaration that: (1)
although the apartment number that the Board used to mail notice of its June 1999 decision on the
date of that decision was incorrect, there is no evidence that the notice was returned as undeliverable;
(2) a VA regional office (RO) received a memorandum from the American Legion (AL), the
appellant's representative, on April 27, 2000, that "set forth the appellant's contention that he did not
receive a copy of the Board's June 29, 1999, decision until [mid-] January 2000"; and (3) the Board,
subsequent to being notified of that memorandum by the RO, "re-mailed" a copy of its June 1999
decision to the appellant at his most current address then of record. Declaration (Decl.) at 2.
        On January 8, 2001, the Court ordered the Secretary to file a preliminary record evidencing
when the mailing defect with respect to the June 1999 Board decision, conceded in his November
2000 response, was cured or a statement that he had no further information to present on the issue.
The Court notes that, in that order, the appellant was given time to respond, if he so chose, to the
Secretary's response. On January 31, 2001, the Secretary responded to the Court order. In his
response, the Secretary argues that, although there was a defect in mailing notice of the June 29,
1999, BVA decision because the BVA used an incorrect apartment number for the mailing, that
mailing defect was cured when the appellant actually received a copy of the June 1999 Board


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decision. Secretary's Response (Sec. Resp.) at 1-2. The Secretary asserts that the appellant received
a copy of the June 1999 BVA decision in November 1999 when he received a requested copy of his
complete claims file, which would have contained the June 1999 Board decision. Sec. Resp. at 2.
In the alternative, the Secretary asserts that the appellant, by his own contention, as reported to the
Board by the AL, received a copy of the June 1999 Board decision in January 2000. Sec. Resp. at
3. The Secretary has appended to his response a preliminary record (Prelim. R.) that he asserts
supports his position, including a copy of a memorandum from the AL to the RO. In that
memorandum, the AL informs the RO that "[the appellant] contends that he did NOT receive the
BVA decision until mid-January 2000 [because] it was first sent to an [incorrect apartment
number] and then re-routed to [his current address]." Prelim. R. at 18 (emphasis in original). The
Court notes that the appellant did not respond to the Secretary's response.


                                         II. ANALYSIS
       The ultimate burden of establishing jurisdiction rests with the appellant. See McNutt v.
G.M.A.C., 298 U.S. 178, 189 (1936); Bethea v. Derwinski, 2 Vet.App. 252, 255 (1992). Pursuant
to 38 U.S.C. § 7266(a), in order for a claimant to obtain review of a BVA decision by this Court, that
decision must be final and the person adversely affected by that decision must file a timely NOA
with the Court. See Bailey v. West, 160 F.3d 1360, 1363 (Fed. Cir. 1998) (en banc). To have been
timely filed under 38 U.S.C. § 7266(a) and Rule 4 of this Court's Rules of Practice and Procedure,
an NOA generally must have been received by the Court (or, in certain circumstances, be deemed
so received) within 120 days after notice of the underlying final BVA decision was mailed. See
Cintron v. West, 13 Vet.App. 251, 254 (1999). But see Irwin v. Department of Veterans Affairs,
498 U.S. 89, 96 (1990) (under certain circumstances equitable tolling of judicial-appeal period may
be appropriate); Bailey, 160 F.3d at 1365 (Court held that equitable tolling could apply when VA's
conduct misled claimant into "allowing the filing deadline to pass"); Evans v. West, 12 Vet.App. 396,
399 (1999).
       In order to fulfill its responsibilities under 38 U.S.C. § 5104(a) to provide an appellant with
notice of a BVA decision, the Board must "promptly mail a copy of its written decision to the
[appellant] . . . at the last known address of the [appellant] . . . ." 38 U.S.C. § 7104(e). This Court


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has held that there is a "'presumption of regularity'" that applies to the mailing of Board 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 to 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 "'clear evidence to the contrary.'" Davis v. Brown, 7 Vet.App. 298, 300 (1994)
(quoting Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992)). When the presumption has been
rebutted, the mailing defect may be cured by proof that the Board decision was actually received
by the party to whom it was sent, and the 120-day period does not begin to run until the date on
which that defect is cured by actual receipt. See Ashley, 2 Vet.App. at 311; see also Davis, 7
Vet.App. at 303; Fluker v. Brown, 5 Vet.App. 296, 298 (1993).
       In the instant case, the Secretary concedes that the Board on the date of the decision mailed
notice of its June 29, 1999, decision to the appellant at an incorrect address. See Decl. at 2; Sec.
Resp. at 1. The Board's use of an incorrect address constitutes the "clear evidence" needed to
rebut the presumption of regularity that the Board properly mailed notice of its decision to the
appellant pursuant to 38 U.S.C. § 7104(e). See Fluker, 5 Vet.App. at 298; Piano v. Brown, 5 Vet.
App. 25, 26-27 (1993). The Secretary now bears the burden of showing that this mailing defect
was cured by the appellant's actual receipt of a copy of the Board's June 29, 1999, decision. See
Ashley, supra; see also Davis and Fluker, both supra. The Secretary has provided, and the appellant
has not contested, evidence, in the form of a memorandum from the AL to an RO, reflecting that
the appellant received a copy of the June 1999 BVA decision in mid-January 2000. Prelim. R. at
18. The Court thus concludes that the mailing defect was cured by the appellant's actual receipt
of a copy of the June 1999 Board decision in January 2000 and that the 120-day judicial-appeal
period began to run at that time. Even assuming that the appellant received a copy of the Board
decision as late as January 31, 2000, his NOA, which would have been due on or before May 30,
2000, was not filed within the 120-day judicial-appeal period. Given these conclusions, the Court
need not address the Secretary's assertion that the appellant received a copy of the June 1999 BVA
decision in November 1999. Because the appellant's NOA was not filed within the 120-day
judicial-appeal period and because there is nothing in this appeal to suggest that tolling of the
judicial-appeal period would be appropriate, the Court concludes that the appellant has not met
the burden of demonstrating that an NOA was timely filed. See Santoro v. West, 13 Vet.App. 516,


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521 (2000) (Court held that nothing in appeal allowed for equitable tolling of 120-day statutory
judicial-appeal period because "in order for an appellant to have been 'induced by VA conduct', the
appellant must have relied to his or her detriment on something that VA did that breached a duty to
that particular VA claimant or, perhaps, some action VA had a duty not to do").


                                      III. CONCLUSION
       On consideration of the foregoing, the Secretary's motion is granted and this appeal is
DISMISSED for lack of jurisdiction.




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