**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No. 03‑1632]{.smallcaps}

[Norman H. Sthele, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Argued June 29, 2004 Decided December 29, 2004 )

*Sean A. Ravin*, of Washington, D.C., for the appellant.

*Thomas A. McLaughlin*, with whom *Tim* *S*. *McClain*, General Counsel;
*R. Randall Campbell*, Assistant General Counsel; and *Gabrielle L.
Clemons*, were on the pleading, all of Washington, D.C., for the
appellee.

Before STEINBERG, KASOLD, and HAGEL, *Judges.*

HAGEL, *Judge*: On August 29, 2003, the appellant, Norman H. Sthele, who
was unrepresented, filed with the Court a Notice of Appeal seeking
review of a December 19, 2002, Board of Veterans\' Appeals (Board)
decision in which the Board denied him an effective date prior to
December 20, 1991, for his service-connected low-back disability. In his
Notice of Appeal, he wrote that he \"\[d\]id \[n\]ot \[r\]eceive \[a
c\]opy\" of the December 19, 2002, Board decision. In an attached,
unaddressed letter dated August 25, 2003, he asserted: \"I did not
receive a copy of this denial \[and\] I ask\[ed\] for a copy to be sent
to me when I found out about it \[but\] it took \[six\] months to get
it.\" Attachment to Appellant\'s August 29, 2003, Notice of Appeal.
Thereafter, attorney Sean A. Ravin filed a notice of appearance on the
appellant\'s behalf, and the Secretary filed a motion to dismiss the
appeal for lack of jurisdiction. The Secretary, in his motion to
dismiss, asserts that on December 19, 2002, the Board mailed to the
appellant a copy of the decision at issue in this appeal and that,
consequently, the appellant\'s Notice of Appeal was untimely because it
was filed more than 120 days after the Board decision was issued, thus
depriving the Court of jurisdiction over this appeal pursuant to 38
U.S.C. § 7266(a).

**I. BACKGROUND**

The appellant subsequently filed a pleading entitled \"Opposition to the
Secretary\'s Motion to Dismiss,\" in which he argues, among other
things, \"that the Secretary has not submitted evidence that the Board
mailed its decision on any particular date to \[his\] address of
record\" and that because \"there is no evidence that the Board mailed
its decision to \[him\] on a certain date, it is impossible for the
Secretary to assert that \[he\] filed an untimely \[N\]otice of
\[A\]ppeal to this Court.\" In light of the appellant\'s opposition, the
Court ordered the Secretary to file (1) a preliminary record evidencing
that the December 19, 2002, Board decision was mailed to the appellant
and his representative pursuant to 38 U.S.C. § 7104(e) and (2) a
response to the arguments raised by the appellant in his opposition to
the Secretary\'s motion to dismiss.

The Secretary filed a timely response that includes exhibits. Among them
is a declaration from Marvin H. Potes, Acting Director of the Management
and Administration Service of the Board in which Mr. Potes asserts that,
based upon his review of the appellant\'s claims folder and the
information available in the Board\'s computerized appeal-tracking
system, it is his \"understanding that the appellant\'s copy of the
Board\'s December 19, 2002, decision was mailed to the appellant on that
date at the following address: 206 Far West Road, Llano, TX 78643.\"
Secretary\'s Response to Jan. 7, 2004, Court order, Exhibit 2 (Jan. 27,
2004, Declaration (Decl.) of Marvin H. Potes), paragraph (para.) 3.
Specifying the manner in which VA determined the appellant\'s last known
address, Mr. Potes asserts as follows:

> The address provided by the appellant when he filed the VA Form 9
> Appeal to the Board . . . , which was received at the . . .
> \[r\]egional \[o\]ffice . . . on July 8, 2002, was 206 Far West Road,
> Llano, TX 78643. On September 12, 2002, the \[regional office\] sent a
> letter to the appellant at the 206 Far West Road address . . . to
> notify him that the claims folder was being returned to the Board for
> appellate review. There is no indication that either the \[Board\]
> decision or the September 2002 correspondence was returned by the U.S.
> Postal Service as undeliverable.

*Id.* at para. 4; *see* Preliminary Record (PR.) at 19.

The Court, on June 22, 2004, ordered the Secretary to file and serve on
the appellant in an expedited manner, a declaration from the Chairman of
the Board detailing the Board\'s current practices regarding the
date-stamping and mailing of Board decisions and those practices
employed at the time that the appellant\'s copy of the December 19,
2002, Board decision was date-stamped and mailed. The Secretary
responded by filing a declaration from Steven L. Keller, Senior Deputy
Vice Chairman of the Board, in which Mr. Keller asserts, among other
things, that \"current procedures do not require the presence of a Board
employee to observe the \[VA Central Office (VACO)\] mailroom procedures
once the cases are transferred to the VACO Mailroom.\" June 25, 2004,
Decl. of Steven L. Keller, para. 4. Mr. Keller further asserts that
\"\[a\] review of the appellant\'s claims folder and \[the Veterans
Appeals Control and Locator System (VACOLS)\] discloses that from
approximately December 1989 through December 2002\[\] the appellant\'s
address of record was 206 Far West Road, Llano, TX 78643.\" *Id.* at
para. 5. Finally, he asserts that he is \"satisfied that the
appellant\'s copy of the Board\'s December 19, 2002, decision was mailed
to him on that date, to the Llano, TX\[,\] address.\" *Id.*

On June 29, 2004, the Court heard oral argument regarding whether the
Court has jurisdiction over this appeal. During the course of that
proceeding, the Court, among other things, ordered supplementary filings
by both parties. The Secretary, on July 26, 2004, filed with the Court
(1) a preliminary record and (2) a response to the Court\'s June 29,
2004, order; his response includes numerous declarations from various VA
personnel.

The preliminary record is composed of \"photocopies of documents
contained in \[the\] appellant\'s three-volume VA claims file\"
(Secretary\'s July 26, 2004, Response at 1) but also reflects that the
claims file of the appellant, Norman Sthele, contains various documents
that relate to an April 2002 claim for dependents\' educational
assistance that was filed by his son, Michael J. Sthele. *See,e.g.*, PR.
at 20-26. Michael Sthele, in his April 2002 application for benefits,
listed his address as \"2907 Holly Green\[,\] Kingwood\[,\] TX 77339.\"
PR. at 20. In one document contained in the appellant\'s claims file but
pertaining to Michael Sthele\'s claim for educational assistance--an
October 3, 2002, Substantive Appeal to the Board--Michael Sthele listed
\"Sthele, Norman H.\" in the box in which he was directed to specify the
name of the veteran. PR. at 25. In the box in which he was instructed to
specify his address, Michael Sthele wrote \"2907 Holly Green\[,\]
Kingwood\[,\] TX 77339.\" *Id.* Also in the appellant\'s claims file is
a copy of a January 28, 2003, letter from the Board to the Oklahoma
Department of Veterans Affairs concerning a hearing with respect to
Michael Sthele\'s claim; in the letter, the Board incorrectly listed his
father, Norman H. Sthele, as the appellant. PR. at 26; *see* July 22,
2004, Decl. of Clarence J. Joe, Jr., Chief of the Hearing and
Transcription Unit at the Board, para. 6 (\"\[T\]he January 2003
correspondence did not identify the proper appellant.\"). A courtesy
copy of that letter was shown as having been sent to the appellant at
his son\'s Kingwood, Texas, address (PR. at 26), and Mr. Joe asserts
that a copy of such a letter had been posted to the appellant. *See*
July 22, 2004, Decl. of Clarence J. Joe, Jr., para. 4. Also in the
appellant\'s claims file is a VA report of contact form dated February
21, 2003, reflecting that, on that date, the appellant had contacted the
Board. PR. at 27. The form characterizes the appellant\'s purpose for
contacting the Board as his desire to inform the Board of a change in
his address and records his \"new address\" as \"206 Far West Road,
Llano, TX 78643.\" *Id.* The form reflects that \"VACOLS ha\[d\] been
updated to reflect this information.\" *Id.* Finally, the appellant\'s
claims file also appears to reflect that on June 29, 2004, the Board
sent to the appellant at the Kingwood, Texas, address another letter
concerning a hearing with respect to Michael Sthele\'s claim. *See* PR.
at 38. However, that letter would not have been sent to the appellant on
June 29, 2004, because it informed him that he was scheduled for a
hearing before the Board that was to take place on May 12, 2003. *See
id.* In fact, that letter was actually sent to the appellant on or about
January 28, 2003. *See* PR. at 26. The June 29, 2004, date is apparently
the date that the copy of that letter, which is included in the
preliminary record, was printed from VACOLS. *See* July 26, 2004, Decl.
of Martin E. Yancey, para. 9 (\"\[W\]hen the letters are printed, the
current date is shown.\").

The Secretary\'s response includes multiple declarations from various VA
personnel; most of them describe VA\'s procedures for determining an
appellant\'s last known address and the process involved in the mailing
of Board decisions to that address. In one declaration, Eva Gaskins,
Manager of the Decision Team Support Unit within the Management and
Administration Service of the Board, asserts that, although there is a
\"flow chart . . . that aids personnel in the process of dispatching
decisions, there are currently no written, standard operating procedures
regarding the date\[-\]stamping and mailing of Board decisions.\" July
26, 2004, Decl. of Eva Gaskins, para. 4. In another, Martin E. Yancey,
Administrative Officer, Director of Information Systems at the Board,
apprises the Court that \"VACOLS is a shared automated database created
by the Board for tracking and controlling appeals\" and that
\"\[w\]ithin each appellate record on \[the\] VACOLS, there are various
tabs, or headings, each relating to different parts of an appeal.\" July
26, 2004, Decl. of Martin E. Yancey, paras. 3 and 4. He further informs
the Court that \"\[b\]efore any Board-generated correspondence, to
include decisions, is dispatched\[\] or mailed, an electronic copy of
the correspondence . . . is electronically attached to \[the\] VACOLS\"
and that \"\[e\]ach attachment can be viewed and has a separate
\'Details\' button that includes information specific to that
document\[, including\] the then-current mailing address \[for an
appellant\].\" *Id.* at paras. 5 and 6. Providing further detail, Mr.
Yancey asserts:

> The address information stored under the Details function is linked to
> the Address tab for that specific appeal. The Details information is
> preserved to provide an historical record of the address used. If the
> information on the Address tab for the specific appeal is changed, the
> Details information for any attachments retains the information
> reflecting the address of record at the time the document was attached
> to \[the\] VACOLS.

*Id.* at para. 6. Regarding the facts in the instant case, Mr. Yancey
asserts:

> \[T\]he Attachment screen on \[the\] VACOLS shows that a decision was
> attached on December 16, 2002. The Details within that attachment show
> that the address of record at that time was 206 Far West Road, Llano,
> TX 78643. The Dispatch screen shows that the decision was mailed on
> December 19, 2002.

*Id.* at para. 7. Appended to this declaration are attachments in
support of those statements.

In another declaration, Mr. Keller, who had earlier filed a declaration,
informs the Court, among other things, that \"\[t\]he Board no longer
includes a cover letter with its decisions\" and that, \"given the
records available on \[the\] VACOLS, the Board can easily access
historical information regarding the date a decision was dispatched and
the address to which it \[was\] sent.\" July 26, 2004, Decl. of Steven
L. Keller, at para. 5.

In her declaration, Mary Ellen Larkin, Supervisor/Attorney of the
Litigation Support Group within the Appellate Group of the Board,
asserts as follows:

As part of the dispatch process, the Decision Team Support Unit verifies
the appellant\'s address by reviewing the claims folder for the most
recent, dated\[\] correspondence, ***either*** from the appellant to VA
***or*** . . . to the appellant from a VA facility, and matching that
address to the address noted on \[the\] VACOLS (the Board\'s
computerized appeal\[-\]tracking system). If the address on the most
recent dated correspondence differs from that on \[the\] VACOLS, the
dispatcher checks \[the\] VACOLS to see when the address information on
that system was updated. If the information on \[the\] VACOLS was
updated after the date of the most recent dated correspondence in the
claims folder, the dispatcher will use the VACOLS address. If the most
recent address in the claims folder post\[\]dates that noted on \[the\]
VACOLS, the dispatcher will update \[the\] VACOLS to show the most
current address and use that address in mailing.

July 26, 2004, Decl. of Mary Ellen Larkin, para. 3 (emphasis added).
Responding to a particular inquiry made by the Court during the course
of oral argument, Ms. Larkin further apprises the Court that Marvin
Potes, in a March 2004 declaration submitted to the Court in *Calloway
v. Principi*, No. 03-1980, \"was incorrect in stating that the Board
mailed th\[at\] appellant\'s copy of the Board decision in that case to
the \'last known address.\"\' *Id.* at para. 5.

**II. ANALYSIS**

A. Applicable Law

The ultimate burden of establishing jurisdiction rests with the
appellant. *See McNutt v. G.M.A.C.*, 298 U.S. 178, 189 (1936); *Bethea
v. Derwinski*, 2 Vet.App. 252, 255 (1992). An appeal to this Court is
commenced by the filing of a Notice of Appeal, which must be filed
within 120 days after the date on which notice of the Board decision was
mailed. 38 U.S.C. § 7266(a). In limited circumstances, the statutory
period prescribed for the filing of a Notice of Appeal may be equitably
tolled. *See, e.g., Irwin v. Dep\'t of Veterans Affairs*, 498 U.S. 89,
96 (1990); *Barrett v. Principi*, 363 F.3d 1316, 1321 (Fed. Cir. 2004)
(holding that equitable tolling of 120-day filing period may be
justified if veteran shows that failure to file timely was direct result
of mental illness); *Bailey v. West*, 160 F.3d 1360, 1364 (Fed. Cir.
1998) (en banc) (holding that equitable tolling of 120-day filing period
may be warranted where VA misled or induced claimant into missing filing
deadline).

Pursuant to 38 U.S.C. § 7104(e)(1), the Board is required to \"mail a
copy of its written decision to the claimant at the last known address
of the claimant.\" Pursuant to 38 U.S.C. § 5104(a), the Secretary is
required to \"provide to the claimant . . . notice of \[a VA\]
decision\" and such notice must \"include an explanation of the
procedure for obtaining review of the decision.\" This requirements
applies to both Board decisions and those of VA regional offices.
*Thompson v. Brown*, 8 Vet.App. 169, 175-77 (1995). In addition, a VA
regulation provides that \"\[a\]ll decisions of the Board will be
stamped with the date of mailing on the face of the decision.\" 38
C.F.R. § 20.1100(a) (2004).

The Court has recognized that \"\[t\]here is a presumption of regularity
under which it is presumed that government officials \'have properly
discharged their official duties.\'\" *Ashley v. Derwinski*, 2 Vet.App.
307, 308‑09 (1992) (quoting *United States v.* *Chem*. *Found*., *Inc*.,
272 U.S. 1, 14‑15 (1926)). In particular, it is the well-established
precedent of this Court that the Court will presume \"that the Secretary
properly discharged his official duties by mailing a copy of a VA
decision to the last known address of the appellant and the appellant\'s
representative, if any, ***on the date that the decision was
issued***.\" *Woods v. Gober*, 14 Vet.App. 214, 220 (2000) (emphasis
added). That presumption can be overcome only \"by the submission of
\'clear evidence to the contrary\'\" (*Ashley*, 2 Vet.App. at 309
(quoting *Rosler v. Derwinski*, 1 Vet.App. 241, 242 (1991))), and an
appellant\'s mere statement of nonreceipt is insufficient for that
purpose (*see Butler v. Principi*, 244 F.3d 1337, 1340 (Fed. Cir. 2001);
*Mindenhall v. Brown*, 7 Vet.App. 271, 274 (1994)). Although a mere
statement of nonreceipt is insufficient to rebut the presumption of
regularity, the Court, in *Ashley*, made it clear that the presumption
is far from absolute:

> \[W\]here an appellant submits clear evidence to the effect that the
> \[Board\'s\] \'regular\' mailing practices are not regular or that
> they were not followed, the Secretary is no longer entitled to the
> benefit of the presumption and the burden shifts to the Secretary to
> establish that the \[Board\] decision was mailed to the veteran . . .
> as required by 38 U.S.C. § 7104(e).

*Ashley*, 2 Vet.App. at 309. In *Chute v. Derwinski,* the Court held
that the presumption of regularity was rebutted where the Secretary was
unable to demonstrate that the Board had mailed notice of its decision
and the appellant\'s correspondence reflected that he was seeking
information regarding the status of Board review after the Board
decision had allegedly been mailed to him. *Chute*, 1 Vet.App. 352, 353
(1991) (per curiam order).

B. Application of Law to Facts of Case

1\. Presumption of Regularity

The Court, for the purpose of ruling on the Secretary\'s motion to
dismiss, will assume that the presumption of regularity attached to the
Board\'s mailing of notice of its December 19, 2002, decision on that
date to the appellant\'s last known address: 206 Far West Road, Llano,
Texas 78643. *See Woods,* 14 Vet.App. at 220; *Ashley*, 2 Vet.App. at
309. Having so assumed, the Court, for the reasons set forth below,
concludes that the record before the Court contains clear evidence, in
addition to the appellant\'s statement of nonreceipt, that is sufficient
to rebut the presumption. *See Ashley*, 2 Vet.App. at 309; *Chute*, 1
Vet.App. at 353. Having so concluded, the Court further concludes that
the Secretary has failed to meet his burden of establishing that notice
of the December 19, 2002, Board decision was, on that date or any other,
mailed to the appellant at 206 Far West Road, Llano, Texas 78643. *See
Ashley*, 2 Vet.App. at 309.

2\. Rebuttal of Presumption

The evidence before the Court in this case is somewhat perplexing and
reflects multiple irregularities in VA\'s handling of the appellant\'s
case that, coupled with the appellant\'s assertion of nonreceipt,
constitute the clear evidence that is necessary to rebut the assumed
presumption of regularity and shift the burden of persuasion onto the
Secretary. Specifically, the preliminary record reflects that the
appellant\'s claims file contains several documents that relate to his
son\'s April 2002 claim. *See* PR. at 20-26. Although that fact in
isolation might appear unremarkable, some of those documents were, for
reasons unknown, addressed to the appellant at his son\'s Kingwood,
Texas, address. *See* PR. at 26, 38. Of the greatest significance are
(1) Michael Sthele\'s October 2002 Substantive Appeal in which he listed
his father\'s name and gave his own address as 2907 Holly Green,
Kingwood, Texas, and (2) a courtesy copy of a January 2003 letter,
regarding Michael Sthele\'s claim, that was sent to the appellant at his
son\'s Kingwood, Texas, address. *See* PR. at 25-26. Also significant is
the February 21, 2003, report of contact form, which reflects that the
appellant had contacted the Board to, as characterized by VA records,
inform the Board that his \"new address\" was 206 Far West Road, Llano,
Texas 78643. *See* PR. at 27.

The declarations submitted on behalf of the Secretary reflect that
before mailing a copy of the Board\'s December 19, 2002, decision to the
appellant, a VA employee would have \"verifie\[d\] the appellant\'s
address by reviewing the claims folder for the most recent, dated\[\]
correspondence, ***either*** from the appellant to VA ***or*** . . . to
the appellant from a VA facility, and matching that address to the
address noted on \[the\] VACOLS.\" July 26, 2004, Decl. of Mary Ellen
Larkin, para. 3 (emphasis added). Consequently, if the Board followed
the procedures outlined in the declarations submitted to the Court, when
the Board was faced with determining the appellant\'s last known address
for the purpose of mailing him a copy of its December 19, 2002,
decision, it could have, based on the preliminary record submitted by
the Secretary in this case, identified Michael Sthele\'s October 3,
2002, Substantive Appeal, which listed the ***Kingwood***, Texas,
address, as the \"most recent dated\[\] correspondence\" in ***the
appellant\'s*** claims file. Making this even more plausible is the fact
that VA has admitted to incorrectly listing the appellant in the instant
case as the appellant in his son\'s case. *See* July 22, 2004, Decl. of
Clarence J. Joe, Jr., Chief of the Hearing and Transcription Unit at the
Board, para. 6 (\"\[T\]he January 2003 correspondence did not identify
the proper appellant.\"). The Court is therefore left with serious doubt
as to whether the December 19, 2002, Board decision was mailed to an
address other than Michael Sthele\'s Kingwood, Texas, address.
Furthermore, given the fact that the January 28, 2003, letter (PR. at
38) and a courtesy copy of that letter, addressed to the Oklahoma
Department of Veterans Affairs (PR. at 26), were mailed to the appellant
at the Kingwood, Texas, address, the Court finds it difficult to
conclude that the \"most recent dated\[\] correspondence\" in the
appellant\'s claims file at that time--the December 19, 2002, Board
decision--had not also been mailed to the Kingwood, Texas, address.

In light of the foregoing analysis, we hold that any presumption of
regularity applicable here has been rebutted by clear evidence. *See
Chute*, 1 Vet.App. at 353. Consequently, the burden is shifted onto the
Secretary to establish that notice of the Board\'s December 19, 2002,
decision was mailed to the appellant as is required pursuant to section
7104(e) or that the appellant in fact received a copy of that decision.
*See Ashley*, 2 Vet.App. at 309. The Secretary, for the reasons outlined
below, has failed to meet his burden.

3\. Secretary\'s Burden to Establish Actual Mailing

First, of significant concern to the Court is VA\'s admission that
\"there are currently no written standard operating procedures regarding
the date\[-\]stamping and mailing of Board decisions.\" July 26, 2004,
Decl. of Eva Gaskins, para. 4. The fact that it took several
declarations from various VA personnel to explain the Board\'s
procedures for date-stamping and mailing Board decisions fails to
portray a system imbued with consistency or uniformity. Second, the
Potes declaration merely reflects that upon his \"review\" of the
appellant\'s claims folder and the information available in the VACOLS
it was Mr. Potes\'s \"understanding\" that the December 19, 2002,
decision was mailed to the appellant at 206 Far West Road, Llano, Texas,
\"on that date.\" Secretary\'s Response to Jan. 7, 2004, Court order,
Exhibit 2, para. 3. In addition to the fact that Mr. Potes failed to
account for Michael Sthele\'s October 2002 Substantive Appeal, which
listed the Kingwood, Texas, address and was contained in the
appellant\'s claims file, the Court finds particularly troubling Ms.
Larkin\'s assertion that Mr. Potes, in a March 2004 declaration
submitted to the Court in *Calloway*, No. 03-1980, \"was incorrect in
stating that the Board mailed the appellant\'s copy of the Board
decision in that case to the \'last known address.\"\' *Id.* at para. 5.
The Court takes judicial notice that the language used by Mr. Potes in
his declaration in *Calloway* is substantially similar to that used by
Mr. Potes in the January 2004 declaration submitted by the Secretary in
this case. In light of Ms. Larkin\'s declaration and the nature of the
two Potes declarations, the Court concludes that the Potes declaration
in the instant appeal is devoid of probative worth on the question of
whether the Secretary has satisfied his burden of proving that notice of
the Board\'s December 19, 2002, decision was mailed to the appellant as
is required pursuant to section 7104(e).

Third, the Court acknowledges that VA has attempted to explain the
manner in which the VACOLS operates and provided a printed copy of a
VACOLS \"Attachment Detail\" screen that appears to reflect that a Board
decision regarding the appellant was attached on December 16, 2002, and
that the address to which the decision was to be mailed was 206 Far West
Road, Llano, Texas 78643. *See* July 26, 2004, Decl. of Martin E.
Yancey, Attachment at 2. However, nowhere does the Secretary explain how
that address was transferred from the VACOLS onto the \"address page\"
that was fitted into the envelope that was actually mailed to the
appellant (June 25, 2004, Decl. of Steven L. Keller, para. 3(b)), and
neither the Board decision itself nor any document associated with the
decision bears the Llano, Texas, address asserted by the Secretary to
have been used as the appellant\'s mailing address. In addition, there
was a three-day gap between the December 16, 2002, attachment of that
address data in the VACOLS, *see* July 26, 2004, Decl. of Martin E.
Yancey, para. 7, and the December 19, 2002, date-stamping and alleged
mailing of the decision. Moreover, the Secretary has not adequately
assured the Court that the historical data referred to by Mr. Yancey is
permanent and cannot be modified to \"correct\" a subsequently
discovered error. Indeed, the evidence submitted by the Secretary
reflects that various VA personnel have the computer capability to make
changes to the data contained within the VACOLS system. July 26, 2004,
Decl. of Martin E. Yancey, para. 3; July 26, 2004, Decl. of Mary Ellen
Larkin, para. 3. Such assurance is vital, particularly because the
VACOLS is within the exclusive control of VA and because that system is
generally inaccessible to claimants and their representatives.
Accordingly, the Court holds that the Secretary has failed to meet his
burden of demonstrating that a copy of the Board\'s December 19, 2002,
decision was mailed to the appellant at 206 Far West Road. *See Crain v.
Principi*, 17 Vet.App 182, 193-94 (2003).

4\. Timeliness of Notice of Appeal

Having so concluded, the Court further holds that the 120-day appeal
period regarding that Board decision did not begin to run until the
Secretary demonstrated that the decision was mailed to the appellant at
his last known address or that the appellant actually received a copy of
the decision. *See Clark v. Principi*, 15 Vet.App. 61, 63-64 (2001)
(citing *Ashley*, 2 Vet.App. at 311). In that regard, the Court notes
that the appellant has consistently maintained that he first received a
copy of that decision sometime in August 2003. *See, e.g.*, Attachment
to Appellant\'s Aug. 29, 2003, Notice of Appeal; Appellant\'s July 14,
2004, Response to June 29, 2004, Court bench order; Appellant\'s Sept.
10, 2004, Response. Although the appellant has never specified exactly
when in August 2003 he first received a copy of the Board\'s December
2002 decision, that is of no consequence because even assuming that he
received a copy on August 18, 2003, (*see* Sept. 2, 2004, Decl. of the
Appellant at para. 4 (stating that he received a copy of the Board
decision from the Texas Veterans Commission \"in an envelope with a
postmark dated August 18, 2003\")), he filed his Notice of Appeal on
August 29, 2003, well within the 120 days thereafter. *See Clark*, 15
Vet.App. at 64. Consequently, the Court accepts the appellant\'s August
29, 2003, Notice of Appeal as having been timely filed and will deny the
Secretary\'s motion to dismiss. *See id*.

Finally, the Court notes the statement by William E. Miller, Manager of
the VACO mailroom, that \"\[t\]he VACO mailroom is currently staffed by
29 contract employees\" and that a \"Board employee does not stay to
observe the VACO mailroom procedures once the mail is transferred to the
VACO mailroom.\" July 22, 2004, Decl. of William E. Miller, paras. 1 and
3. In his second declaration, Senior Deputy Vice Chairman Keller, in
attempting to explain Mr. Miller\'s declaration, asserts that \"\[i\]t
is my understanding that after several years, the process had become
sufficiently regularized such that the presence of a Board employee was
no longer required.\" July 26, 2004, Decl. of Steven L. Keller, para. 4.
The Court questions, but expresses no opinion on, whether the lack of a
Board employee in the VACO mailroom would affect the applicability of
the presumption of regularity to the Board\'s mailing of notice of its
decisions or would contravene the requirement in section 7104(e)(1),
that \"\[a\]fter 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.\" 38 U.S.C. § 7104(e)(1) (emphasis
added); *see Davis v. Brown*, 7 Vet.App. 298, 303 (1994) (\"\[T\]he
phrase \'the B\[oard\] shall promptly mail\' in \[section\] 7104(e)
means that the B\[oard\] decision must be correctly addressed, stamped
with the proper postage, and delivered directly by the B\[oard\] into
the custody of the U.S. Postal Service.\").

**III. CONCLUSION**

On consideration of the foregoing, the parties\' pleadings, and the
preliminary record, the the Secretary\'s motion to dismiss this appeal
is denied.

The Court orders that, not later than 60 days after the date of this
order, the Secretary file and serve on the appellant the designation of
the record on appeal. The appeal is returned to a single judge for
disposition.

*It is so ordered*.

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