2 Vet. App. 199 | Vet. App. | 1992
ORDER
On July 2, 1991, appellant filed a Notice of Appeal (NOA) from a Board of Veterans’ Appeals (BVA) decision which was mailed on February 27, 1991. On December 24, 1991, the Court issued an order directing appellant to show cause why this case should not be dismissed for lack of jurisdiction. Appellant’s response to the show cause order, filed out of time, does not address the issue.
Here, appellant’s NOA was dated June 27, 1991, the 119th day after the Board’s mailing of its decision to him. The file contains no envelope in which the NOA was mailed, and there is thus no evidence of the date of its mailing. In any event, even if there were an envelope and a postmark date, that would be unavailing. To be timely filed under this Court’s rules (U.S.Vet.App.R. 4) and precedents construing 38 U.S.C. § 7266(a) (formerly 4066(a)), an NOA must be actually received by the Court within 120 days after the BVA decision is mailed to an appellant. See Elsevier v. Derwinski, 1 Vet.App. 150, 152 (1991); Torres v. Derwinski, 1 Vet.App. 15, 17 (1990); but see DiDonato/Elegado v. Derwinski, 2 Vet.App. 42 (1991) (Steinberg, J., concurring) (expressing disagreement with Court’s position that section 7266(a) mandates that NOA must be actually received by Court by 120th day and suggesting change in Court’s Rule to accept post-mark date as date of “filing”). This Court’s jurisdiction derives exclusively from statutory grants of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). Since this appeal was not received by the Court within 120 days after the date, on which the BVA mailed its decision to appellant, it was untimely.
On consideration of the foregoing, it is
ORDERED that this appeal be dismissed for lack of jurisdiction due to an untimely filed NOA (filed 125 days after the BVA decision).
