Cato v. Shulkin, 706 F. App'x 683

Cato served in the military (Dec 1975–Jul 1976) and sought VA service connection for schizophrenia and related psychiatric conditions.
The VA Regional Office denied reopening in May 2006; the Board denied service connection on June 6, 2016 and mailed its decision that day.
A VA Regional Office mailed a copy of the Board’s June 2016 decision to Cato again on December 14, 2016, to the same address used previously.
Cato filed a notice of appeal to the U.S. Court of Appeals for Veterans Claims on April 26, 2017—more than 120 days after the Board’s mailing.
The Secretary moved to dismiss as untimely; the Veterans Court found Cato failed to produce clear evidence rebutting the presumption that the Board properly mailed the decision and dismissed the appeal.
Cato appealed to the Federal Circuit, arguing he never received the Board decision by mail.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cato rebutted the presumption of regularity that the Board properly mailed its decision	Cato: he did not receive the Board decision; mailing failed or went to wrong address	Secretary: records show the Board and RO mailed the decision to the same address and mailings were not returned	Court: Cato failed to provide clear evidence to overcome the presumption; dismissal for untimeliness stands
Whether the Federal Circuit may review the Veterans Court's factual application of the presumption of regularity	Cato: asks Federal Circuit to review Veterans Court’s finding that he did not rebut the presumption	Secretary: argues factual determinations are not reviewable here	Court: lacks jurisdiction to review factual findings or law-applied-to-facts challenges under 38 U.S.C. § 7292(d)(2); appeal dismissed

Butler v. Principi, 244 F.3d 1337 (Fed. Cir. 2001) (articulates presumption of regularity for public officers)
Toomer v. McDonald, 783 F.3d 1229 (Fed. Cir. 2015) (applies presumption of regularity to Board mailings and limits Federal Circuit review of factual challenges)