**UNITED STATES COURT OF VETERANS APPEALS**

No. 96-1147

[Glen J. Shepard, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo d. west, jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided October 22, 1998 )

*Clayte Binion* was on the pleadings for the appellant*.*

*Robert E. Coy,* Acting General Counsel; *Ron Garvin*, Assistant General
Counsel; and *Thomas A. McLaughlin*, Special Assistant to the Assistant
General Counsel, were on the pleadings for the appellee.

Before NEBEKER, *Chief Judge,* and HOLDAWAY and STEINBERG, *Judges.*

NEBEKER, *Chief Judge*: The Court has before it the issue of its
jurisdiction to entertain Glen J. Shepard\'s appeal (hereafter *Shepard
I*) filed on September 9, 1996, from a Board of Veterans\' Appeals (BVA
or Board) decision issued on October 25, 1990. The jurisdictional issue
centers on whether the BVA\'s failure to mail a copy of that decision to
the American Legion (Mr. Shepard\'s designated representative in October
1990) kept open the period in which to note an appeal to this Court.
While the appeal was pending, counsel for Mr. Shepard notified the Court
of his client\'s death, and filed a motion to substitute Mr. Shepard\'s
widow, Esther Shepard, as the appellant in this proceeding. The
Secretary has filed a response to the appellant\'s motion to substitute
Mrs. Shepard, stating no objection to substitution for the purpose of
determining the Court\'s jurisdiction and acknowledging Mrs. Shepard\'s
standing as a potential accrued-benefits claimant whose claim is
affected by the outcome of this proceeding.

At the time of his death, Mr. Shepard also had pending an appeal from an
October 20, 1995, BVA decision, which, inter alia, denied his attempt to
reopen the two claims denied by the October 25, 1990, decision. *Shepard
v. West,* U.S. Vet. App. No. 95-1123 (Notice of Appeal (NOA) filed Nov.
10, 1995) (hereafter *Shepard II*). Proceedings in *Shepard II* had been
stayed, upon the appellant\'s motion, pending resolution of the issue of
the Court\'s jurisdiction over the appeal in *Shepard I*.

In response to the Court\'s November 5, 1997, order directing that the
parties provide further information as to jurisdictional facts, as well
as further legal argument, the Secretary filed a memorandum and renewed
motion to dismiss, and Mr. Shepard filed a response. Mr. Shepard also
filed an unopposed motion to amend his response with the Declaration of
Robert L. Ashworth of the BVA concerning the BVA\'s transmission of the
October 1990 BVA decision to the appellant and to his then-designated
representative, the American Legion. Upon consideration of the parties\'
pleadings and of the record on appeal (ROA) in *Shepard II*, which is
relevant to the jurisdictional issue here, and for the reasons that
follow, the Court will grant the motion to amend Mr. Shepard\'s response
to the Secretary\'s motion to dismiss, will grant the motion for
substitution in *Shepard I*, and will dismiss this appeal. By order
issued concurrently with this opinion, the Court will direct the
dismissal of *Shepard II.* *See Shepard v. West*, \_\_ Vet.App. \_\_,
No. 95-1123 (per curiam order Oct. 22, 1998).

**I. FACTS**

The salient jurisdictional facts are as follows. First, Mr. Shepard\'s
own copy of the October 1990 BVA decision appears to have been mailed to
him in compliance with 38 U.S.C. § 7104(e). He had argued, however, that
the time for appeal from the BVA\'s 1990 decision never began to run
because the BVA failed to comply with the second requirement of section
7104(e), which\--at the time of that decision\--required that a copy be
mailed, via the U.S. Postal Service, to the appellant\'s then-designated
representative, the American Legion. *See Davis v. Brown*, 7 Vet.App.
298, 303 (1994). The Secretary has conceded that there is no way of
determining the exact date on which the American Legion received a copy
of the Board\'s October 25, 1990, decision, which was sent by \"flat
mail\" to the American Legion. *See Trammell v. Brown*, 6 Vet.App. 181,
183 (1994) (copies of BVA decisions sent by \"flat mail\" to VA regional
office rather than sent directly by BVA to claimant\'s representative
are not mailed in accordance with 38 U.S.C. § 7104(e)); accord *Davis*,
*supra*. Mr. Shepard did not contest that, in February 1996, his counsel
(not the American Legion) received a copy of the 1990 BVA decision as
part of the record designated by the Secretary in *Shepard II*.

**II. ANALYSIS**

This Court held in *Ashley v. Derwinski*, 2 Vet.App. 307, 311 (1992),
that actual receipt of a BVA decision by a claimant\'s \"designated
representative\" cures a section 7104(e) defect in mailing and begins
the running of the 120-day judicial appeal period under 38 U.S.C. §
7266(a). What is, accordingly, crucial to the jurisdictional issue here
presented is whether counsel was Mr. Shepard\'s \"designated
representative\" in early February 1996, or whether, at that time, the
American Legion continued in that role as to the two claims addressed by
the October 1990 BVA decision.

It is undisputed that Mr. Shepard and his counsel \[hereinafter
\"counsel\"\] executed an attorney-fee agreement for counsel\'s
representation of Mr. Shepard on his \"claim for benefits now pending\"
and submitted it to VA on November 20, 1995. Notice to VA of the fee
agreement confirmed a November 2, 1995, letter of representation from
counsel with signed consent from Mr. Shepard to counsel\'s
representation in matters concerning \"such claim.\" The Secretary,
citing 38 C.F.R. § 14.631(d) (1997), states that the specific letter of
representation as to the pending claims for benefits revoked the general
power of attorney held by the American Legion until the final
determination of those claims. *See* Appellee\'s Memorandum in Response
to Court Order and Renewed Motion to Dismiss (hereinafter \"Secretary\'s
Response\") at 2. According to the Secretary, VA has recognized counsel,
and not the American Legion, since November 1995 as the appellant\'s
sole representative regarding the claims now before the Court and all
transactions concerning those claims have been conducted exclusively
with counsel. *Id.*

In his pleadings, Mr. Shepard had disputed the Secretary\'s assertion
concerning the scope of counsel\'s representation. Mr. Shepard had
argued that the October 1990 BVA decision had become final and that
counsel could not, therefore, then be the representative in the
\"matters\" addressed there. Mr. Shepard had pointed out that the
October 1990 BVA decision dealt with his initial claims for service
connection of chronic obstructive pulmonary disease (COPD) and residuals
of a right ankle injury, while the October 1995 decision addressed his
attempt to reopen those claims. However, he had also contended that the
October 1990 BVA decision never became \"final\"\--in the sense of no
longer being appealable to the Court\--because of the defect in
complying with the requirement to \"mail\" a copy of it to the
claimant\'s representative at that time, the American Legion. *See* 38
U.S.C. §§ 7104(e), 7266(a); *Davis* and *Trammell*, both *supra.* In
this, he was correct as to the state of the law on the undisputed facts
as of November 1995 when he entered into the fee agreement for
representation to cover the \"claim for benefits now pending.\" Hence,
at that time counsel unquestionably became Mr. Shepard\'s representative
on each pending claim, thereby superseding the American Legion for that
purpose. Indeed, when counsel filed the September 1996 NOA in *Shepard
I*, he did so pursuant to *that* fee agreement, not some new fee
agreement.

The Secretary has the statutory authority to recognize an attorney as a
claimant\'s agent to prepare, present, and prosecute a claim for VA
benefits. *See* 38 U.S.C. § 5903; *see also* 38 U.S.C. § 5904(a). The
Secretary has the power to promulgate \"all rules and regulations which
are necessary and appropriate to carry out the laws administered by
\[VA\] and are consistent with those laws.\" 38 U.S.C. § 501(a). By
regulation, the Secretary has set forth the requirements for recognition
and delineated the scope of representation. *See* 38 C.F.R. §14.629
(1997) (statement in writing on attorney\'s letterhead that attorney has
authority to represent claimant, along with signed consent of claimant,
is equivalent to executed power of attorney); 38 C.F.R. § 14.631(c)(1)
(1997) (such specific authority to represent revokes appointment of
service organization as claimant\'s representative as it pertains to,
and during pendency of, \"that particular claim\"); 38 C.F.R.
§ 14.631(d) (specific authorization to represent a claimant established
under 38 C.F.R. § 14.630 applies \"only as it pertains to, and during
the pendency of, that particular claim\" after which general power of
attorney again applies \"as to any new or reopened claim\"). And the
Secretary has represented to the Court that, as to representation of Mr.
Shepard, he applied his regulation in a manner consistent with the
statute. *See* Secretary\'s Response at 2 (\"In sum, since November
1995, VA has recognized counsel (not the American Legion) as
appellant\'s sole representative regarding the claims that are now
before the Court, and all transactions concerning those claims perforce
have been conducted exclusively with his counsel. *See* 38 C.F.R. §
14.631(c)(1).\").

Accordingly, the Secretary did not exceed his authority when, in
November 1995, he recognized counsel as Mr. Shepard\'s designated
representative in \"all transactions\" concerning his then-pending
claims. *Id*. Here, the \"transactions\" concerning the claims include
both the effort to reopen the claims and the underlying predicate claims
of service connection for COPD and of residuals of a right ankle injury.
Accordingly, we hold that counsel became Mr. Shepard\'s representative
in November 1995, and that, as to these claims, counsel\'s
representation had ousted that of the American Legion.

Mr. Shepard had further argued, however, that, because the 1990 BVA
decision sent to counsel as part of the designation of the ROA in
February 1996 did not include notice of any defect in mailing or notice
of appellate rights, the time to appeal did not begin to run. *See In
the Matter of the Fee Agreement of Cox,* 10 Vet.App. 361, 375 (1997)
(claim remains open if denial not accompanied by statement of appellate
rights as required by 38 U.S.C. § 5104(a)), *vacated on other grounds*,
149 F.3d 1360 (Fed. Cir. 1998) (holdings affirmed; vacated only for
consideration of alleged facts occurring after this Court issued
opinion). He stated that he was not on notice as to any defect in
mailing until March 1997; nevertheless, he filed his NOA from the BVA\'s
1990 decision in September 1996, having had a copy of that decision
since February 1996, and he filed this NOA pursuant to the November 1995
representation agreement. The Court observes that the BVA\'s
then‑standard notice of appellate rights accompanied the copy of the
1990 Board decision. *See Shepard II*, Record at 166. The appellant has
offered no persuasive reason for his failure, within the initial 120
days after counsel\'s receipt of the written decision as part of the
*Shepard II* record designation, to inquire into the circumstances of
the BVA\'s mailing (or failure to mail) that decision, and to file an
NOA within that time period. *But cf. Cummings v. West*, 136 F.3d. 1468,
1472 n.2 (Fed. Cir. 1998), (citing *Butler v. Derwinski*, 960 F.2d 139,
140-41 (Fed. Cir. 1992), for proposition that Court lacks authority to
extend section 7266(a) appeal period, even on theory of equitable
tolling); *see also Bazalo v. Brown*, 9 Vet.App. 304, 310-11 (1996) (en
banc) (counsel charged with knowledge of law and held to higher standard
than is pro se appellant), *rev\'d on other grounds sub nom. Bazalo v.
West*, 150 F.3d 1380 (Fed. Cir. 1998). Counsel\'s argument\--which
appears to be that the copy of the 1990 BVA decision should have been
\"flagged\" in some way as still being appealable when he received his
copy in February 1996\--is unpersuasive.

The ultimate burden of establishing jurisdiction rests with the
appellant. *See McNutt v. G.M.A.C.*, 298 U.S. 178 (1936); *Bethea v.
Derwinski*, 2 Vet.App. 252 (1992). To be timely under Rule 4 of this
Court\'s Rules of Practice and Procedure and precedents construing 38
U.S.C. § 7266(a), an NOA must be filed with the Court within 120 days
after written notice of the BVA decision has been transmitted in
compliance with 38 U.S.C. § 7104(e), *see Butler, supra*, or where a
copy of the decision was not provided to both the claimant and his
designated representative in compliance with section 7104(e), after a
copy of the decision has actually been received by the claimant and his
or her designated representative, *see Ashley, supra*. This Court\'s
jurisdiction derives exclusively from statutory grants of authority
provided by Congress and may not be extended beyond that permitted by
law. *See* *Christianson v. Colt Industries Operating Corp.,* 486 U.S.
800, 818 (1988); Machado v. Derwinski, 928 F.2d 389 (Fed. Cir. 1991);
*Dudley v. Derwinski*, 2 Vet.App. 602 (1992) (en banc order).

The Court concludes that Mr. Shepard did not meet the burden of
demonstrating that an NOA from the BVA\'s October 1990 decision was
timely filed. Because no NOA was filed within the 120-day appeal period
provided by section 7266(a), the Court need not reach the issue whether
section 509 of the Veterans Benefits Improvements Act of 1996 (VBIA),
which became effective on October 9, 1996, retroactively gave effect to
the \"flat mail\" conveyance of the 1990 BVA decision to the
appellant\'s then-representative, the American Legion. *See* VBIA, Pub.
L. No. 104‑275 § 509, 110 Stat. 3322, 3344 (1996) (amending section
7104(e) to allow BVA, at its option, either to mail copy of BVA decision
to claimant\'s representative, or to send copy by other means reasonably
likely to be as speedy as mail).

**III. CONCLUSION**

The Court holds that when Mr. Shepard\'s counsel submitted a letter of
representation to VA, that letter ousted the American Legion as Mr.
Shepard\'s designated representative concerning the claims then still
pending that had been addressed in the October 1990 BVA decision denying
those claims on the merits. Accordingly, receipt by counsel in February
1996 of notice of that October 1990 decision began the running of the
120-day appeal period to the Court under 38 U.S.C. § 7266(a)(1). See
*Ashley, supra*. Because the NOA from the 1990 decision was filed more
than 120 days after the appeal period began to run, it was untimely, and
this appeal must be dismissed.

Finally, the Court received notice of Mr. Shepard\'s death during the
pendency of these proceedings, and his widow has moved to be substituted
in the appeal. The law regarding substitution of a survivor for a
deceased appellant is well settled. *See Richard v. Gober*, 10 Vet.App.
431, 432 (1997) (per curiam order) (where veteran dies while appeal of
BVA decision regarding claim for benefits under chapter 11 was pending
at Court, appeal becomes moot). The operative event is the death of the
veteran, and the consequent extinguishing of that individual\'s claims.
*Id*. The Court has held that, in such cases, dismissal is the
appropriate remedy. *Landicho v. Brown*, 7 Vet.App. 42, 54 (1994); *see
Zevalkink v. Brown*, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996), *cert.
denied*, 117 S. Ct. 2478 (1997).

A federal court, however, always has jurisdiction to determine its
jurisdiction. *See Heath v. West*, 11 Vet.App. 400, 402 (1998) (federal
court has duty to determine its subject-matter jurisdiction). The
parties agree that Mrs. Shepard has standing to pursue this appeal
because the outcome of this proceeding will affect the course of her
proceedings before VA, should she choose to seek accrued benefits. *See
Landicho*, 7 Vet.App. at 53 (survivor has no standing to pursue claim
after deceased veteran\'s death except as to survivor\'s being potential
accrued-benefits claimant). The Court finds no flaw in their reasoning
as to Mrs. Shepard\'s standing to seek disposition of the jurisdictional
issue. Accordingly, exercising its jurisdiction to determine
jurisdiction, the Court is permitting Mrs. Shepard to substitute for her
deceased husband as the appellant here, given her status as a potential
accrued-benefits claimant, so that the Court might rule on the validity
of Mr. Shepard\'s NOA in this case. A motion to substitute has also been
filed in *Shepard II,* and is addressed in the order issued in that
appeal.

The motion to substitute Mrs. Shepard for her deceased veteran husband
as the appellant in *Shepard I* is GRANTED. The Clerk is directed to
file the Declaration of Robert L. Ashworth as of the date of its receipt
by the Court. This appeal, *Shepard I,* is DISMISSED for lack of
jurisdiction.