# Dudnick v. Brown

> United States Court of Appeals for Veterans Claims · September 12, 1996 · 9 Vet. App. 397

URL: https://www.frixlaw.com/law-library/cases/8167117

## Case

- **Full name:** Stewart L. DUDNICK v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** September 12, 1996
- **Citations:** 9 Vet. App. 397; 1996 U.S. Vet. App. LEXIS 739; 1996 WL 528208
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Farley, Holdaway, Steinberg
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8167117

## Opinion text

ORDER
PER CURIAM.
On April 2, 1996, the appellant filed a Notice of Appeal (NOA) from a June 1,1995, Board of Veterans’ Appeals (BVA) decision. The BVA had received the appellant’s motion for reconsideration on October 3, 1995, and denied it on February 27, 1996. The Secretary has filed a motion to dismiss for lack of jurisdiction.
Since the appellant was represented at the BVA by the Disabled American Veterans (DAV), the Secretary has provided (1) an affidavit stating that on June 1, 1995, the BVA mailed the decision to the representative’s national office and (2) a VA Form 23-22 completed by the appellant and designating the DAV with no specific address.
In response to the Secretary’s motion to dismiss, the appellant has filed a statement with supporting documentation from the United Parcel Service (UPS) asserting that the BVA received his motion for reconsideration on September 29, 1995. The pertinent documentation consists of two UPS receipts: (1) a Delivery Confirmation Request stamped “BVA October 3, 1995” and (2) a UPS delivery notification reflecting that a shipment was delivered to “Department of Veterans’ Affairs,” 810 Vermont Avenue, NW, Washington, DC 20220, on September 29, 1995. The Court notes that the mailing address of the BVA is 811 Vermont Avenue, across the street from other departmental offices, including the Secretary’s, located at 810 Vermont Avenue. See Federal Staff Directory 788-89 (Ann L. Brownson ed., Spring ed. 1996).
Upon the filing of a request for reconsideration by the BVA within the 120-day time period, the finality of the BVA decision is abated, and a new 120-day time period begins to run on the date on which the BVA *398 mails its denial of the request to reconsider or its new decision on reconsideration. See Rosler v. Derwinski, 1 Vet.App. 241 (1991). In the instant appeal, the Court finds that the appellant filed a motion for reconsideration at the VA on September 29,1995, within the 120-day time period, and therefore, the finality of the BVA decision was abated until the denial of the appellant’s motion for reconsideration on February 27,1996.
The Court finds that on April 2, 1996, the appellant filed his NOA with the Court in a timely fashion, and the Court has jurisdiction over this appeal.
On consideration of the foregoing, it is
ORDERED that the Secretary’s motion to dismiss is denied. It is further
ORDERED that the Secretary, within 30 days after the date of this order, file with the Clerk and serve on the appellant the designation of the record on appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8167117. Public record. Not legal advice.