Jonathan D. Fithian v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 08-3077

JONATHAN D. FITHIAN , APPELLANT ,

v.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued July 13, 2010 Decided November 9, 2010)

David L. Allred, of Bethesda, Maryland, was on the application for the appellant.

Pamela M. Nash, with whom Richard Mayerick, Deputy Assistant General Counsel; R.

Randall Campbell, Assistant General Counsel; and Will A. Gunn, General Counsel, were on the

response, all of Washington, D.C., for the appellee.

Before GREENE, LANCE, and DAVIS, Judges.

DAVIS, Judge: U.S. Army National Guard veteran Jonathan D. Fithian appeals through

counsel from a May 15, 2008, Board of Veterans' Appeals (Board) decision that denied his claim for

VA benefits. On September 25, 2008, the Court received from Mr. Fithian a Notice of Appeal

(NOA), which was more than 120 days after the May 15, 2008, Board decision and therefore would

be an untimely NOA. See 38 U.S.C. § 7266(a) (establishing that a person adversely affected by a

Board decision shall file an NOA with the Court within 120 days after the date the Board decision

is mailed).

Because a VA regional office (RO) received from Mr. Fithian a letter constructively filed

with the Board which constitutes a motion for reconsideration of the May 15, 2008, Board decision;

and because that letter was received within the statutory appeal period for filing an appeal of a Board

decision to the Court; and because the motion for reconsideration is still pending at the Board, the

Court lacks jurisdiction to hear the appeal. The Court will therefore dismiss the appeal without

prejudice.

I. FACTUAL BACKGROUND

In response to an order to show cause why the September 25, 2008, NOA should not be

dismissed, Mr. Fithian asserts that on July 21, 2008, he mailed a letter to the Board that constitutes

a motion for reconsideration. The letter reads:

July 21, 2008

Board of Veterans' Appeals

Notice of Disagreement

To Whom It May Concern:

My name is Jonathan D Fithian [redacted] am writing this day to disagree with your

decision on my compensation claim on my left leg and ankle. I'm not sure if there

was some kind of misunderstanding during my doctor visits, but the pain in my lower

left [sic] has continued to bother and hamper me ever since I [was] injured during

train-ups for OIF. I injured it again while in country and to this day have to take pain

medicine in order for me to sleep at night. I might be able to do might daily duties

but that is because I have become immune to the pain.

Thanks for your time and understanding,

[signature]

Jonathan D Fithian

Appellant's October 31, 2008, Response at 2. There is no indication in the record that the Board

received the July 21, 2008, letter, and Mr. Fithian received no communication from the Board in

response to the letter.

On September 8, 2008, the Nashville, Tennessee, RO received from Mr. Fithian a copy of

his July 21, 2008, letter, a letter from his wife providing a statement supporting his claim, and two

copies of a completed VA Form 9 (Substantive Appeal to the Board). The Nashville RO received

the letter within the 120-day period for filing either an NOA with the Court or a motion for

reconsideration with the Board1and the RO returned the materials to Mr. Fithian on September 12,

2008. The RO also enclosed a letter that stated: "[W]e cannot take any action on your

1

According to 38 C.F.R. § 20.1001(b) (2010), a motion for reconsideration of a Board decision may be filed

by the appellant at any time. The Court, in stating that the September 8, 2008, letter was filed within the 120 days for

filing a motion for reconsideration with the Board, is referencing the Rosler period during which the start of the 120-day

period to file an NOA can be postponed. See infra.

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correspondence. If you would like to appeal the [Board] decision, your appeal rights concerning that

determination are explained in the [form] you received with the [Board's] decision letter. We have

enclosed another copy for your convenience." Appellee's December 10, 2009, Response at Exhibit

3.

II. ARGUMENTS AND ISSUES

Mr. Fithian argues that his July 21, 2008, letter to the Board filed within the 120 days of the

mailing of the Board decision under 38 U.S.C. § 7266 was a timely filed motion for reconsideration,

which prevented the period to file an NOA from beginning.2 Alternatively, he argues that his

September 8, 2008, letter to the RO was a timely filed motion for reconsideration, which prevented

the time period to file an NOA from beginning. See 38 C.F.R. § 20.1001 (2010) (establishing the

criteria for a motion for reconsideration). He further argues because he timely filed a motion for

reconsideration, the 120-day period to file an NOA with the Court only began after the RO returned

the motion for reconsideration to him on September 12, 2008, and therefore his NOA was timely

filed with the Court, and his appeal is properly before the Court.

The Secretary, in response, argues that the Board did not receive the document Mr. Fithian

states he mailed on July 21, 2008, and the presumption of regularity does not apply to the appellant's

mailing of a letter to the Board, but only applies to Government actors. The Secretary further

contends that the U.S. Court of Appeals for the Federal Circuit's (Federal Circuit's) decision in

Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc), cert. granted, 130 S. Ct. 3502

(2010), overruled Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc), and consequently

a motion for reconsideration misfiled at the RO is not constructively filed at the Board. Therefore,

the Secretary asserts, the appellant did not file a timely motion for reconsideration that is capable of

postponing the start of the period to file an NOA. Finally, the Secretary argues that the only question

properly before the Court is whether the NOA is timely, and that if the Court determines the NOA

2

The parties used the term "toll" in their briefs and arguments to the Court, but we instead use "begin." In an

effort at clarity and consistency, as discussed infra, the Court has rephrased the arguments to omit the word "toll" and

"tolling."

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is untimely, the Court does not have jurisdiction to determine whether the letter to the RO is a

motion for reconsideration rather than an NOA, but must simply dismiss the case.

Two issues are presently before the Court. First, whether in light of the Federal Circuit's

recent decision in Henderson, filing a motion for reconsideration at the RO–or anywhere within

VA–is the same as filing a motion for reconsideration at the Board. Second, whether in determining

the timeliness of an NOA, the Court has jurisdiction to determine whether a document is an NOA

or a motion for reconsideration under 38 C.F.R. § 20.1001.

The Court holds that neither Henderson nor Bowles v. Russell overrules Jaquay's veteran-

friendly determination that a timely misfiling of a motion for reconsideration at the RO–or anywhere

within VA–is a constructive filing of the motion for reconsideration at the Board. See Bowles, 551

U.S. 205 (2007). The Court further holds that, in deciding whether an NOA is timely, the Court has

jurisdiction to identify what that document is under 38 C.F.R. § 20.1001.

III. ANALYSIS

Critical to an understanding of the jurisprudence in this area is a recognition that a motion

for reconsideration suspends or abates any earlier final decision by the Board when it is filed within

the 120-day statutory period to appeal the Board decision to the Court. See Rosler v. Derwinski, 1

Vet.App. 241 (1991). That is, a Board decision is no longer final once a motion for reconsideration

is filed. See Rickett v. Shinseki, 23 Vet.App. 366, 371 (2010) (stating that, when a motion for

reconsideration is filed within 120 days of a final Board decision, "finality does not attach until the

Board Chairman renders a decision denying the motion for reconsideration"); see also Interstate

Commerce Comm'n v. Bhd. of Locomotive Eng'rs, 107 S. Ct. 2360, 2368-39 (1987). Once a motion

for reconsideration has been filed, the Board decision only becomes final when the Chairman has

acted on the motion for reconsideration. See Rickett, supra. The Court cannot review the case on

the merits unless and until final Agency action has been taken. Id.; see also Civil Aeronautics Bd.

v. Delta Airlines, Inc., 81 S. Ct. 1611, 1619 (1961).

Before proceeding, we will clarify the distinction between the terms "abatement" and

"equitable tolling." Equitable tolling of the period to file an appeal under 38 U.S.C. § 7266(a) and

abatement of a final administrative decision are overlapping legal doctrines, but are nonetheless

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distinct. Equitable tolling is the doctrine that "the statute of limitations will not bar a claim if the

plaintiff, despite diligent efforts, did not discover the injury until after the limitations period had

expired." BLACK 'S LAW DICTIONARY 560 (7th ed. 1999). It is an equitable remedy where

"extraordinary circumstances prevented the plaintiff from filing despite his or her diligence" or

where "the plaintiff actively pursued his or her judicial remedies by filing a defective pleading during

the statutory period." AMERICAN JURISPRUDENCE 563 (2nd ed. 2000). Abatement, on the other hand,

is "[t]he act of eliminating or nullifying" or "[t]he suspension or defeat of a pending action for a

reason unrelated to the merits of the claim." BLACK'S LAW DICTIONARY 2 (7th ed. 1999). It "may

also mean the complete extinguishment of a cause of action" and can be "the equivalent of a

dismissal." AMERICAN JURISPRUDENCE 84 (2nd ed. 2000).

According to this Court's decision in Rosler, when the appellant has filed a motion for

reconsideration with the Board within 120 days after the mailing date of the Board decision, the

finality of that Board decision is abated and the 120-day statutory appeal period to the Court does

not begin until after the Board Chairman has denied the reconsideration motion. See id. at 249.

Therefore, the doctrine set forth in Rosler resets the start of the statutory appeal period once final

Agency action has been taken. Thus, "[t]he doctrine set forth in Rosler does not toll any limitations

period," but resets the start of the statutory appeal period once final action has been taken by the

Board. Jaquay, 304 F.3d at 1281 n.2. "Instead of temporarily halting the appeals period," as the

term "tolling" is generally used, "the Rosler rule resets the appeal period" or holds the appeals period

in abeyance until final action is taken by the Board. Id. Consequently, a motion for reconsideration

does not directly impact this Court's statutory jurisdiction under 38 U.S.C. § 7266 because the 120-

day statutory appeal period to the Court does not begin to run until final Agency action is taken. See

38 U.S.C. § 7266(a) ("In order to obtain review by the Court of Appeals for Veterans Claims of a

final decision of the Board of Veterans' Appeals, a person adversely affected . . . shall file a notice

of appeal with the Court within 120 days . . . ." (emphasis added)).

A. Presumption of Regularity: July 21, 2008, Letter to the Board

Mr. Fithian first argues that on July 21, 2008, he timely mailed to the Board a letter that met

the requirements for a motion for reconsideration, which reset the 120-day period to file an NOA.

Significantly, according to Rosler, as long as that motion was submitted to the Board within the 120-

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day period to file an appeal to the Court, the statutory appeal period would not begin to run until the

Board Chairman acted on the motion and the Board decision became final. The Secretary responds

that the Board did not receive the document Mr. Fithian states he mailed on July 21, 2008, and that

the presumption of regularity does not apply to the appellant's mailing of a letter to the Board, but

only applies to Government actors.

The Court notes initially that "[a]lthough the presumption of regularity 'usually runs in favor

of the government, it is equally applicable and appropriately applied in favor' of individuals who are

litigating against the Government." Marsh v. Nicholson, 19 Vet.App. 381, 385 (2005) (quoting Ala.

Airlines, Inc. v. Johnson, 8 F.3d 791, 796 (Fed. Cir. 1993)). Contrary to the Secretary's assertion,

the presumption of regularity can apply to Mr. Fithian's situation.

The presumption of regularity "supports the official acts of public officers and, in the absence

of clear evidence to the contrary, courts presume that they have properly discharged their official

duties." Ashley v. Derwinski, 2 Vet.App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc.,

272 U.S. 1, 14-15 (1926)). Here, the presumption of regularity indicates that if Mr. Fithian had filed

his letter with the Board, the Board, acting in its regular course of business and following its regular

processes, would have placed it in his claims file and acted on it in some way.

The Secretary asserts that the Board did not receive the July 21, 2008, letter. Mr. Fithian

acknowledges that he did not receive a response from the Board and so, rather than following up

with the Board, he mailed a letter to the RO on September 8, 2008. The evidence he offers in

support of his assertion that he mailed the July 21, 2008, letter is an affidavit that states (1) he mailed

the letter first class postage prepaid; (2) he sent the letter to the Board in Washington, D.C.; and (3)

he assumed it was delivered. These statements, however, are not sufficiently clear evidence to rebut

the presumption of regularity. They are also not sufficient to establish the presumption of receipt

under the common law mailbox rule. See Rios v. Mansfield, 21 Vet.App. 481, 482 (2007) (stating

that the "presumption of receipt permitted under the common law mailbox rule is not invoked

lightly" and "requires proof of mailing, such as an independent proof of a postmark, a dated receipt,

or evidence of mailing apart from a party's own self-serving testimony"). Based on this evidence,

which establishes neither that the Board received the letter nor that Mr. Fithian mailed the letter, the

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Court must conclude that the Board properly discharged its duties and that Mr. Fithian's July 21,

2008, letter was not received by the Board.

B. Misfiling a Motion for Reconsideration at the RO

Mr. Fithian next argues that on September 8, 2008, he timely mailed to the RO a letter that

met the requirements for a motion for reconsideration, which delayed the start of the statutory appeal

period to the Court. The Secretary asserts that the U.S. Court of Appeals for the Federal Circuit in

Henderson determined that filing a motion for reconsideration at the RO is not sufficient to meet the

requirements of 38 C.F.R. § 20.1001(b). The regulation states that a motion for reconsideration

"must be filed at the following address: Director, Management and Administration (01E), Board of

Veterans' Appeals, 810 Vermont Avenue, N.W., Washington DC 20420." 38 C.F.R. § 20.1001(b)

(2010).

A review of the significant caselaw related to this issue necessarily begins in September

2002, when the Federal Circuit decided Jaquay v. Principi and used "equitable tolling" and

"abatement" interchangeably in its analysis. As we discussed earlier, while these concepts are

similar, they are not the same. In Jaquay, a veteran timely (within the 120-day statutory appeal

period to the Court) filed a motion for reconsideration with the RO, which untimely forwarded it to

the Board. The Board denied the motion for reconsideration, and Mr. Jaquay filed a timely NOA

with the Court. The Federal Circuit considered the "veteran-friendly nature of the veterans' benefits

system" and the "non-adversarial stage of a claim for benefits" and held that a veteran who misfiles

his motion for reconsideration at the RO rather than at the Board effectively "tolls" the 120-day

statute of limitations of 38 U.S.C. § 7266. 304 F.3d at 1279-80, 88-89. While the Federal Circuit

inartfully used the word "toll," the meaning of its holding is consistent with "abate." Consequently,

the Federal Circuit in Jaquay correctly decided that misfiling a motion for reconsideration at the RO

abated the finality of a Board decision and prevented the 120-day statutory appeal period from

beginning. Significantly, when the finality of an administrative decision is abated, the impact is not

to toll a statute of limitations, but rather, simply to delay the start of the statutory appeal period to

the Court because, as here, the statutory appeal period does not begin until a final Agency action has

occurred.

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Following the Federal Circuit's decision in Jaquay, this Court decided Kouvaris v. Shinseki,

22 Vet.App. 377 (2009). Significantly, the Court recognized the "veteran-friendly nature of the

veterans benefits system" and cited Jaquay for the determination that "strict compliance as to where

within the Board, or even within VA, the motion for reconsideration must be filed is not required."

22 Vet.App. at 381. The Court further concluded that the filing of the motion for reconsideration

abated the finality of the Board decision. Id.

The Court again cited Jaquay in Boone v. Shinseki, 22 Vet.App. 412 (2009). Mr. Boone

mailed to his RO a form that the Court determined to be a motion for reconsideration. The RO

instructed him to mail the form to the Court. The Court determined that the documents Mr. Boone

filed with the RO met the criteria for a motion for reconsideration because, in part, it was irrelevant

whether the documents were filed at the Board or the RO. The Court stated: "The Board is not an

independent entity, but is part of VA and, subject to limitations expressed by statute, is under the

control of the Secretary. This being the case, strict compliance as to where within VA the motion

for reconsideration must be filed is not required." Boone, 22 Vet.App. at 414.

As these cases illustrate, despite the regulation's instruction that a motion for reconsideration

"must be filed" at the Board and mailed to a specific address in Washington, D.C., this Court has

adopted the Federal Circuit's view that the regulation's directive and the included address are for the

administrative convenience of the Board. Jaquay, 304 F.3d at 1286. The jurisprudence of this Court

and the Federal Circuit has consistently acknowledged VA as one entity for pleading purposes. Id.

Therefore, a motion for reconsideration misfiled at an RO abates the finality of the original Board

decision in accordance with Rosler as of the date of the filing at the RO. See Jaquay, 304 F.3d at

1289; see also Boone, 22 Vet.App. at 414; Kouvaris, 22 Vet.App. at 381.

On December 17, 2009, responding to the Supreme Court of the United States's (Supreme

Court's) decision in Bowles v. Russell, supra, the Federal Circuit decided Henderson. In Henderson,

the Federal Circuit sought to clarify its jurisprudence on equitable tolling under 38 U.S.C. § 7266(a).

The Federal Circuit and this Court had applied the doctrine of equitable tolling in several cases

where the equities seemed to favor the litigant rather than to require the strict enforcement of the

statutory appeal period. See Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (holding that

equitable tolling should be applied if a claimant's mental incompetency "rendered him incapable of

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'rational thought or deliberate decision making,' or 'incapable of handling [his] own affairs or unable

to function [in] society'" (citations omitted)); Bailey v. Principi, 351 F.3d 1381, 1382 (Fed. Cir.

2003) (holding that "the filing with the [RO] of a document that expresses the veteran's intention to

appeal to the Veterans Court equitably tolls the running of the 120-day notice of appeal period");

Bobbitt v. Principi, 17 Vet.App. 547, 554 (2004) (holding that the "appellant's actions fall under the

Federal Circuit's equitable-tolling-doctrine umbrella" where the appellant, within the 120-day

statutory appeal period to the Court, completed an NOA and gave it to her representative, who sent

the document to the Board and requested that the appeal be forwarded to the Court).

The Supreme Court's decision in Bowles required that the Federal Circuit and this Court

review their application of the doctrine of equitable tolling to the statutory appeal provision found

in section 7266(a). Section 7266(a) provides:

In order to obtain review by the Court of Appeals for Veterans Claims of a final

decision of the Board of Veterans' Appeals, a person adversely affected by such a

decision shall file a [N]otice of [A]ppeal with the Court within 120 days after the

date on which notice of the decision is mailed pursuant to section 7104(e) of this

title.3

Id.

The Supreme Court in Bowles determined that "the timely filing of a [N]otice of [A]ppeal

in a civil case is a jurisdictional requirement" and thus is mandatory; the Court also instructed that

there is "no authority to create equitable exceptions to jurisdictional requirements." 551 U.S. at 214.

In Henderson, the Federal Circuit, applying Bowles, expressly overruled two of its earlier decisions,

Jaquay, supra, and Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc), insofar as those cases

attempted to apply equitable tolling to the jurisdictional statute. The Federal Circuit stated: "Today,

for the reasons set forth below, based on Bowles, we expressly overrule Bailey and Jaquay's holdings

that the time period set forth in [section] 7266(a) is subject to equitable tolling." Henderson, 589

F.3d at 1203. Thus the Federal Circuit determined that a Notice of Appeal filed after the expiration

of the 120-day appeal period set forth in section 7266(a) was untimely and that the Court therefore

lacked jurisdiction to hear the appeal–even where, as in Mr. Henderson's case, "his failure to timely

3

In pertinent part, 38 U.S.C. § 7104(e) provides: "After reaching a decision on a case, the Board shall promptly

mail a copy of its written decision to the claimant at the last known address of the claimant."

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appeal was a direct result of his illness" of paranoid schizophrenia–because the 120-day time period

is not subject to equitable tolling. Id. at 1203-04.

The Federal Circuit overruled Jaquay in the first paragraph of its Henderson decision as part

of a discussion of equitable tolling and Notices of Appeal, not as part of any discussion related to

the location of filing a motion for reconsideration of a Board decision. Yet the Secretary argues that

Henderson completely overruled Jaquay–including the Court's jurisprudence related to motions for

reconsideration misfiled at an RO, which is based on Jaquay. If this were the case, then a motion

for reconsideration filed at the RO would not be constructively filed at the Board, Mr. Fithian would

not have filed a timely motion for reconsideration anywhere within VA, there would be no basis

upon which the finality of Board's decision would be abated, Mr. Fithian's NOA would be untimely,

and the Court would have to dismiss the appeal.

The Court rejects the Secretary's argument. Henderson specifically overruled only that part

of Jaquay that had incorrectly extended equitable tolling to section 7266(a). Nothing in the

Henderson analysis and holding disturbed the well-settled rule that a motion for reconsideration

misfiled at the RO is constructively filed with the Board. See Jacquay, Kouvaris, and Boone, all

supra.

Looking again at the specific language in Henderson, the Federal Circuit stated: "[W]e

expressly overrule Bailey and Jaquay's holdings that the time period set forth in [section] 7266(a)

is subject to equitable tolling." 589 F.3d at 1203. The court held that "38 U.S.C. § 7266(a) is a time

of review provision in a civil case and that, because Congress has not so provided, it is not subject

to equitable tolling." Id. at 1220. The Federal Circuit then continued: "If Congress determines that

the 120-day period for appealing to the Veterans Court from a decision of the Board should be

subject to equitable tolling, it may amend [section] 7266(a) to compel a result different from the one

we reach today." Id.

This very specific language in Henderson is significant because it is narrow, restricting the

Federal Circuit's overruling of Jaquay to the application of equitable tolling to the statutorily

provided time for appeal to the Court contained in section 7266(a). That holding provides: "[W]e

expressly overrule Bailey and Jaquay's holdings that the time period set forth in [section] 7266(a)

is subject to equitable tolling." 589 F.2d at 1203.

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Notably, Henderson did not disturb the Federal Circuit's previous decisions regarding VA

as a veteran-friendly, unified Agency where misfiling or misdirecting an Agency pleading such as

a motion for reconsideration is not fatal to a veteran's claim. Section 7266(a) is a jurisdictional

statute that applies to the Court's ability to review final Agency decisions; it in no way governs

motions for reconsideration before the Board, much less the location of their filing. Consequently,

Henderson's statement that equitable tolling was not available for section 7266(a) did not overrule

the Federal Circuit's longstanding precedent and that portion of Jaquay that determined filing a

motion for reconsideration at the RO rather than the Board was sufficient to meet the requirements

of 38 C.F.R. § 20.1001.

In examining the language of Henderson, the Court recognizes that the Federal Circuit's

opinion is not a model of clarity because it blurs the concepts of abatement and tolling. The Federal

Circuit is clear, however, that the Supreme Court's Bowles decision is the basis for the Henderson

outcome. In Bowles, the Supreme Court held: "Today we make clear that the timely filing of a notice

of appeal in a civil case is a jurisdictional requirement." 551 U.S. at 214; see also Henderson, 589

F.3d at 1222 (Mayer, J., dissenting) (stating that "[t]he majority seizes" upon this sentence from

Bowles). Neither Bowles nor Henderson address the issue of misfiling. The Bowles decision deals

exclusively with a statutory deadline that controls the number of days for filing a Notice of Appeal

of a district court decision. The Bowles decision does not relate to where that motion may be filed,

only the timing of the filing at the court. Neither the Supreme Court's decision in Bowles nor the

Federal Circuit's decision in Henderson disturbed a longstanding principle of veterans law

jurisprudence consistently holding that filing a motion for reconsideration at the RO is constructive

filing at the Board.

Because the Federal Circuit overruled Jaquay's holding only as it related to equitable tolling

of section 7266(a), and because Henderson does not address the issue of filing a motion for

reconsideration at an RO, and because Bowles deals exclusively with the timing of a filing at a court,

it is clear that the Federal Circuit in Henderson did not overrule Jaquay's veteran-friendly

determination that filing a motion for reconsideration at an RO constitutes a constructive filing of a

motion for reconsideration at the Board.

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Thus, the Court reaffirms our holding in Kouvaris that "[i]n light of the veteran-friendly nature

of the veterans benefits system, [] strict compliance as to where within the Board, or even within VA,

the motion for reconsideration must be filed is not required." 22 Vet.App. at 381; see also Boone,

22 Vet.App. at 414 (stating that "strict compliance as to where within VA the motion for

reconsideration must be filed is not required").

This is not the first occasion since the Federal Circuit decided Henderson the Court has

considered this issue. In Posey v. Shinseki, 23 Vet.App. 406 (2010), which was decided four months

after Henderson, the Court stated that "the fact that Mr. Posey mailed [his] document to the [RO]

rather than the Board is irrelevant." 23 Vet.App. at 409. The Court again cited Jaquay's holding that

"strict compliance as to where within VA the motion for reconsideration is filed is not required," 304

F.3d at 1287, and stated that Henderson overruled Jaquay on other grounds, id. at 408-09. We

confirm again Posey's interpretation of Jaquay.

Turning again to the facts of this case, Mr. Fithian mailed a letter to the Nashville, Tennessee,

RO on September 8, 2008. The RO received the letter on September 12, 2008, which was within the

120-day period to file an NOA with the Court. By filing the letter with the RO, Mr. Fithian

constructively filed the letter with the Board. If the letter was a motion for reconsideration, then

under Rosler it served to abate the finality of the May 15, 2008, Board decision. As a result, if the

September 12, 2008, letter is a motion for reconsideration, then there is no final Board decision that

Mr. Fithian could appeal to the Court under section 7266(a) until the Board Chairman acts on the

motion for reconsideration.

C. Jurisdiction To Characterize the Letter to the RO

The Court's analysis turns next to the letter Mr. Fithian mailed to the RO on September 8,

2008. As a preliminary matter, the Court must address the Secretary's argument regarding the Court's

jurisdiction to determine whether the letter was a Notice of Appeal, a motion for reconsideration, a

Notice of Disagreement, or some other kind of pleading. In other words, when determining whether

the Court may exercise its statutory jurisdiction to review final decisions from the Board, is the Court

restricted to determining only what something is not rather than what something is? Phrased in

zoological terms, may the Court determine only that what looks like a duck is not a duck, or may the

Court determine that what initially looks like a duck, is, in fact, a platypus, and say so?

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The Secretary argues that in determining whether an NOA is timely, the Court does not have

jurisdiction to determine whether the letter to the RO is or is not a motion for reconsideration. The

Secretary asserts that the only question before the Court is whether Mr. Fithian has filed a timely

NOA, and, if there is no timely NOA, the Court does not have the jurisdiction to determine what the

September 8, 2008, letter may be. Rather, the Secretary argues that "findings by the Court on any

issues other than whether Appellant timely filed an appeal with the Court would be dicta." Appellee's

December 10, 2009, Response at 6.

By returning the September 8, 2008, letter to Mr. Fithian and instructing him to mail it to the

Court, the RO implied that it was an NOA, not a motion for reconsideration. This raises a question

concerning the character of the letter. If it was a motion for reconsideration, then it was timely under

Rosler. If it was an NOA, then it was mailed to the wrong location. See U.S. VET . APP . RULE 3 ("A

person adversely affected by a Board of Veterans' Appeals decision may appeal that decision to the

Court only by filing a written Notice of Appeal with the Clerk of the Court").

The Secretary fails to recognize that in determining whether a document is, in fact, an NOA,

the Court must necessarily examine its substance and determine what it is. This Court's Rules of

Practice and Procedure require that an NOA include a person's name, address, and telephone number.

U.S. VET . APP . R. 3(c)(1). An NOA must also "reasonably identify the Board decision appealed from

and be able to be reasonably construed, on its face or from the surrounding circumstances, as

expressing an intent to seek Court review of that decision." Id. at (c)(2). In determining whether a

document contains these elements of an NOA, the Court will necessarily identify if a document is

instead a motion for reconsideration or a Notice of Disagreement. The fact that a document is

identifiably a motion for reconsideration or a Notice of Disagreement, may provide essential support

for the determination that it is not an NOA. In other words, determining that the creature in question

is a platypus provides the necessary proof that it is not a duck, despite the initial impression created

by its duck-like bill.

This Court has assessed the characterization of an ambiguous pleading on several occasions.

In Boone, the Court determined that "Mr. Boone's submission to the RO . . . was not an NOA . . .

because the document and the circumstances surrounding its filing evidenced no clear intent to seek

judicial review." 22 Vet.App. at 414. In reaching this conclusion, the Court considered that Mr.

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Boone did not file his VA Form 21-4138 (Statement in Support of Claim) with the Court, but rather

sent it to the RO. Id. at 412, 414. The Court also noted that Mr. Boone wrote on the document that

he could not "afford to hire an attorney and take this to the Court," which supported the conclusion

that he was "seeking reconsideration and not appealing." Id. at 414.

In Kouvaris, the Court examined the Form 21-4138 Mr. Kouvaris filed with the Board and

noted that it "lacked any indicia of intent to seek review by the Court." 22 Vet.App. at 380. The

Court also noted that "[t]he document had 'Notice of Disagreement' written across the top; it not only

was filed with the Board, it also expressed the explicit intent to 'file this [N]otice of [D]isagreement

with the Department of Veterans Affairs Board of Veterans' Appeals.'" Id.

Additionally, in Posey, the Court pinpointed five elements of the document Mr. Posey

submitted to the Court that illustrated why it evinced "no intent to seek review by the Court" but

instead "suggest[ed] that it [was] more properly considered a motion for reconsideration of the Board

decision." 23 Vet.App. at 408.

First, Mr. Posey's submission contains a VA Form 1-9, entitled "Appeal to Board of

Veterans' Appeals." Second, on that form, Mr. Posey checked the box labeled "I

want a [Board] hearing in Washington, D.C." Third, Mr. Posey attached a letter to

the Form 1-9 addressed to the VA regional office in Lakewood, Colorado (where the

form and letter were received on November 8, 2007). Fourth, the salutation of Mr.

Posey's letter reads: "To the Honorable Board of Veterans Affairs." Fifth, in his

letter, Mr. Posey reiterates his desire "to have a video conference hearing with one

of the [B]oard members in Washington, D.C." Nowhere in his letter does Mr. Posey

refer to the Court or indicate that he is seeking review of the Board's decision by the

Court. Rather, the Court is convinced Mr. Posey was seeking to have the Board

reconsider its July 2007 decision.

Id. The Court went beyond a cursory examination of the letter in an attempt to discern whether the

elements of an NOA were present, and instead looked at the letter as a whole to determine what it

was. In Posey, the Court determined that the document was not an NOA, but was instead a motion

for reconsideration of the Board decision.

The mechanical partitioning of analysis that the Secretary argues for is unrealistic as a matter

of practice. The Court necessarily must examine the language of the document in order to determine

whether it is an NOA. In conducting this examination, the Court may note an absence of language

that expresses an intent to seek Court review. See Posey, Kouvaris, and Boone, all supra. The Court

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is therefore justified in, and indeed, required to make comparisons between an NOA and a motion for

reconsideration or any other pleading that could be submitted by a veteran. For example, in Posey,

the Court stated: "[T]he document submitted to the Court is, in fact, a motion for reconsideration of

the Board decision rather than a Notice of Appeal . . . ." 23 Vet.App. at 406-07.

Finally, classifying a document is essential in order to avoid inconsistent decisions that would

leave the appellant in a catch-22 situation. If the Court refuses to exercise jurisdiction because it

concludes that the appellant's submission is not an NOA but makes no further determination about

the nature of the document, and then the Board refuses to exercise jurisdiction because it finds that

the appellant's submission is not a motion for reconsideration, the appellant would be in an untenable

position. The Court, therefore, does have the authority, in determining whether a timely NOA has

been filed, to also determine whether a document is a motion for reconsideration. See Butts v. Brown,

5 Vet.App. 532, 540-41 (1993) (en banc) (Court has jurisdiction to review Board's refusal to exercise

jurisdiction); see also Hayre v. Principi, 15 Vet.App. 48, 57 (2001) (Kramer, C.J., concurring in part

and dissenting in part as to dismissal) (stating that "this Court has the responsibility to determine for

itself whether it has jurisdiction to consider a claim"). That is, the Court is not limited to determining

only that something that looks like a duck is not a duck, but in the exercise of its appellate review

authority the Court may determine that something that initially looks like a duck is not a duck, but

is rather a platypus. These determinations are not dicta, but are essential to the decision of the Court

as it exercises its appellate review authority.

D. Nature of the September 8, 2008, Letter

Pursuant to the regulation,

a motion for reconsideration must be in writing and must include (1) the name of the

veteran, (2) the applicable VA file number, and (3) the date of the Board's decision

to be reconsidered. It must also set forth the alleged obvious error of fact or law in

the applicable decision of the Board, or other appropriate basis for requesting

reconsideration.

Boone, 22 Vet.App. at 414 (citing 38 C.F.R. § 20.1001(a)).

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The September 8, 2008, letter clearly satisfies the first two elements because it includes Mr.

Fithian's name and, in the redacted portion, his Social Security number.4 See Boone, 22 Vet.App. at

414 (noting that Mr. Boone's filing included his Social Security number but not mentioning that the

filing included a VA file number and stating that the filing constituted a motion for reconsideration).

According to Kouvaris, the date of the Board decision is "apparent from the circumstances" when

there is only one Board decision of record, as there is here. 22 Vet.App. at 380-81. Consequently,

the third element is satisfied as well.

As for the question of whether Mr. Fithian's letter "set[s] forth clearly and specifically the

alleged obvious error . . . of fact or law in the applicable decision . . . of the Board" (38 C.F.R.

§ 20.1001(a)), the letter states: "[P]ain in my lower left has continued to bother and hamper me."

Appellant's October 31, 2008, Response at 2. He also states that he "disagree[s] with your decision

on my compensation claim on my left leg and ankle." Id. While Mr. Fithian does not use the word

"reconsider," it is clear that he is expressing disagreement with the Board's decision and alleging an

error of fact regarding the continuation of pain in his lower leg.

It is also clear that Mr. Fithian's disagreement is with the Board, not the Court. His letter is

not addressed to the Court, nor does it mention the Court or an intent to seek judicial review. As

such, it cannot properly be construed as an NOA. See U.S. VET . APP . R. 3(c)(2) (stating that an NOA

must express intent to seek Court review); see also Posey, 23 Vet.App. at 408 (stating that a

document filed with the Court will be "liberally construed to constitute" an NOA); Kouvaris, 22

Vet.App. at 379 (stating that an intent to seek Court review can be "'clear from the document as a

whole and the circumstances of its filing with the Court'" (quoting Durr v. Nicholson, 400 F.3d 1375,

1381 (Fed. Cir. 2005)). Consequently, the Court determines that the September 8, 2008, letter to the

RO satisfies the requirements of § 20.1001(a).

The document Mr. Fithian timely filed at the RO, which was constructively filed at the Board,

is a motion for reconsideration and not an NOA. According to Rosler, this timely filing abated the

finality of the May 15, 2008, Board decision. Consequently there is no final Board decision until the

Board Chairman acts on the motion for reconsideration. See Rickett, supra. Because the Court can

4

On October 13, 2010, Mr. Fithian, responding to an October 12, 2010, Court order, informed the Court that

the redacted portion of the September 8, 2008, letter contained his Social Security number.

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only review final decisions of the Board, and because Mr. Fithian's letter is not an NOA but rather

a motion for reconsideration, the Court will dismiss his appeal without prejudice. See 38 C.F.R.

§ 7266(a).

The Board has not yet responded to Mr. Fithian's motion for reconsideration. Therefore the

motion is still pending before the Board. See Posey, supra. Should the Board decision, when final,

be adverse to Mr. Fithian, he may appeal to the Court. See Rosler, 1 Vet.App. at 249.

IV. CONCLUSION

On consideration of the foregoing, Mr. Fithian's appeal of the May 15, 2008, Board decision

is DISMISSED without prejudice.

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