Bosmay v. Derwinski

2 Vet. App. 306 | Vet. App. | 1992

ORDER

On March 19, 1992, the Court dismissed appellant’s case for lack of jurisdiction based upon a Notice of Appeal (NOA) filed three days after the expiration of the 120-day appeal period prescribed by 38 U.S.C. § 7266(a) (formerly § 4066(a)). 2 Vet.App. 341. The preliminary record before the Court indicated that the Board of Veterans’ Appeals (Board or BVA) decision was dated and, therefore, mailed on September 27, 1991. See Sandine v. Derwinski, 1 Vet.App. 26 (1990); Rosler v. Derwinski, 1 Vet.App. 241 (1991) (Declaration of Dennis J. Kelly).

On April 2, 1992, appellant filed a motion for panel review pursuant to Rule 35(b) of the Court’s Rules of Practice and Procedure. However, panel review is not necessary because the Court, sua sponte, will reconsider its March 19, 1992, order.

Evidence recently proffered by the Secretary of Veterans Affairs (Secretary) in other appeals indicates that BVA decisions issued prior to January 16, 1992, cannot be presumed to have been mailed to an appellant or representative on “the date that appears on the face of a BVA decision”. The Declaration of Charles L. Cragin, Chairman of the BVA, dated February 24, 1992, which was submitted in Davis v. Derwinski, No. 91-0985 (U.S.Vet.App.) and subsequently filed in Ashley v. Derwinski, No. 91-386 (U.S.Vet.App.), reflects that the Chairman

cannot assure the Court with 100 percent certainty that, for decisions mailed prior to January 16, 1992, “the date that appears on the face of a BVA decision is that on which the decision is mailed.” ... The facts do show that, with two exceptions, all of the postmarks are no later than the next business days after the day of the decision.

Cragin Declaration at 2-3.

The date of appellant’s BVA decision, September 27, 1991, was a Friday; consequently, the date of mailing will be presumed to have been the next business day, Monday, September 30, 1991. See Rosler, 1 Vet.App. at 242; Sandine, 1 Vet.App. at 26. Hence, appellant’s NOA filed on January 28, 1992, was timely filed with the Court on the 120th day after the date of the presumed mailing of the BVA decision.

On consideration of the foregoing, it is

ORDERED, sua sponte, that the order of March 19, 1992, is vacated, the Secretary’s motion to dismiss this appeal for lack of jurisdiction is denied, and the appeal shall proceed in accordance with this Court’s Rules of Practice and Procedure.