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

No. 01-323

[Fred A. Davis, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Decided March 18, 2003 )

*Lewis C. Fichera*, of Sewell, New Jersey, was on the pleadings for the
appellant.

*Tim S. McClain*, General Counsel; *Joan E. Moriarty*, Acting Assistant
General Counsel; *Thomas A. McLaughlin*; and *Cristine D. Senseman*, all
of Washington, D.C., were on the pleadings for the appellee.

Before IVERS, STEINBERG, and GREENE, *Judges*.

STEINBERG, *Judge*: On February 12, 2001, the appellant, then pro se,
sought review of a June 9, 2000, Board of Veterans\' Appeals (BVA or
Board) decision that dismissed as untimely an attempted appeal of a
Department of Veterans Affairs (VA) regional office (RO) decision that
had denied an original effective date earlier than February 12, 1993,
for a 20% rating for his service‑connected postoperative residuals of a
hemorrhoidectomy. *Fred A. Davis*, BVA 92-18390, at 19 (June 9, 2000).
The appellant\'s Notice of Appeal (NOA) was received by the Court 248
days after the date of the BVA decision. The Secretary has filed a
motion to dismiss this appeal for lack of jurisdiction; he asserts that
the appellant has not filed a timely NOA. For the reasons that follow,
the Court will grant the Secretary\'s motion and dismiss the appeal for
lack of jurisdiction.

**I. Relevant Background**

The veteran, Fred A. Davis, had active U.S. military service from
January 1961 to January 1964. *Davis*, BVA 92-18390, at 1. In December
1995, the Roanoke, Virginia, VARO received from the veteran a VA Form 9
(Substantive Appeal to the Board), on which he had listed his address as
\"302 W. Canal Street\[,\] Richmond, VA 23220\". Preliminary Record
(Prelim. R.) at 1. On a VA Form 20-8992, which was received by the RO on
September 13, 1996, the veteran listed his then‑current address as \"15
W. Clay Street\[,\] Richmond, VA 23220\". Prelim. R. at 3. That VA Form
20-8992, in a pre-printed portion, stated:

> \[W\]e emphasize to all those choosing direct deposit that . . . VA
> must be notified each time your mailing address changes, even if your
> payments are deposited directly to your bank account. Use the space at
> the bottom of this letter to report any change of address.
>
> ***You must keep . . . VA informed of any mailing address change*** in
> order to receive notice about benefits, about VA examinations, about
> scheduled VA medical treatment and ***to allow . . . VA to contact you
> promptly***.

*Ibid.* (emphasis added). On October 4, 1996, he filed with the RO a VA
Form 572 (\"Request for Change of Address/Cancellation of Direct
Deposit\"), listing his then‑current address as \"4013 North Avenue,
Apt. 5\[,\] Richmond, VA 23222\". Prelim. R. at 6. The RO received from
the veteran on November 12, 1997, a completed \"Direct Deposit Sign-Up
Form\" with an address of \"210 Hospital St\[reet,\] Apt\[.\] 111\[,\]
Richmond, Va 23219\". Prelim. R. at 9-10. On November 22, 1999, the RO
received from him a VA Form 9, which listed \"210 Hospital Street\[,\]
Richmond, VA 23219\" as his address. Prelim. R. at 12-16. On June 9,
2000, the Board dismissed his appeal because the veteran had failed to
file a timely Substantive Appeal in accordance with 38 U.S.C.
§ 7105(d)(3) and 38 C.F.R. § 20.302(b) (1999). *Davis*, BVA 92-18390, at
1, 3.

The preliminary record on appeal contains a partial copy of a VA
envelope \[hereinafter June 9, 2000, envelope\] addressed to \"Fred A.
Davis\[,\] 210 Hospital Street\[,\] Apartment 111\[,\] Richmond, VA
23219\", with a June 9, 2000, U.S. Postal Service (USPS) postmark.
Prelim. R. at 18. Also on the envelope is a June 25, 2000, USPS sticker
that states: \"RETURN TO SENDER MOVED LEFT NO ADDRESS UNABLE TO FORWARD
RETURN TO SENDER\". Prelim. R. at 18. On July 6, 2000, the Director of
the BVA Administrative Service sent to the RO a \"Referral of
Correspondence\" memorandum (with the veteran\'s VA claims file number
on it) that noted that an enclosed BVA communication had been returned
undelivered and that requested that the RO remail it (\"with any
necessary explanation\") when the correct address was ascertained.
Prelim. R. at 20. That memorandum also had a July 18, 2000, date-stamp
on its reverse side. Prelim. R. at 21. On the June 9, 2000, envelope is
an RO date-received stamp of July 17, 2000. Prelim. R. at 18.

On August 11, 2000, the RO received from the veteran a letter inquiring
about his VA disability compensation checks and including the following
address: \"1701 Fairfield Way\[,\] Richmond, VA 23223\". Prelim. R. at
23-25; Secretary\'s Aug. 2001 Memorandum (Mem.), Exhibit (Ex.) 1. On the
July 6, 2000, BVA \"Referral of Correspondence\" memorandum is an
August 29, 2000, handwritten note apparently made by \"212A H. James\"
that stated: \"MR suspense due to returned checks\". Prelim. R. at 20.
On the June 9, 2000, envelope is the following handwritten note,
apparently also made by \"212A H. James\": \"9/6/00 - remailed 6/9/00
BVA decision to: 1701 Fairfield Way\[,\] Richmond, VA 23223\". Prelim.
R. at 18. Also on September 6, 2000, the RO sent to the Richmond City
Jail (addressed to 1701 Fairfield Way, Richmond, VA 23233) a request for
information; in a September 7, 2000, response, received by the RO on
September 12, 2000, a jail official noted that the veteran was
incarcerated there (apparently since February 2, 2000) and that,
although his length of sentence was six months, his scheduled release
date was still pending. Secretary\'s Aug. 2001 Mem., Ex. 2-3. The RO
received from the veteran on October 6, 2000, a VA Form 572 (\"Request
for Change of Address/Cancellation of Direct Deposit\") that indicated
that his new address was \"P.O. Box 12393\[,\] Richmond, VA 23241\".
Prelim. R. at 27-28; Secretary\'s Aug. 2001 Mem., Ex. 4. On the June 9,
2000, envelope, the following further handwritten note, again apparently
by \"212A H. James\", appears: \"11/2/00 mail returned from 1701
Fairfield Way, remailed to P.O. Box 12393\[,\] Richmond\[,\] VA 23241\".
Prelim. R. at 18.

The Court received the appellant\'s NOA on February 12, 2001. On
February 27, 2001, the Secretary transmitted to the Court a copy of a
June 9, 2000, BVA decision. Attached to that BVA decision copy was a VA
Form 4597 (\"Appeals Notice\"), describing the veteran\'s appellate
rights; no date-stamp appears on that form. On March 7, 2001, the Court,
through the Clerk of the Court, ordered the appellant, then pro se, to
explain why the Court should not dismiss this appeal for lack of
jurisdiction on the ground that he had not filed his NOA within the
120-day judicial-appeal period after the mailing of the notice of the
June 9, 2000, BVA decision. On March 8, 2001, the Secretary filed a
motion to dismiss the appeal on the ground that the appellant\'s NOA was
not timely filed.

On March 23, 2001, the Veterans Consortium Pro Bono Program filed (for
the purpose of case evaluation) a motion to stay the proceedings in this
case until April 13, 2001. The Court granted that stay motion on
March 26, 2001. On March 27, 2001, Lewis C. Fichera, Esq., filed a
notice of appearance on behalf of the appellant.

In a March 27, 2001, response to the Court\'s March 7, 2001, order, the
appellant, then through counsel, makes two arguments that his NOA was
timely. First, he contends that his NOA was filed within the 120-day
judicial-appeal period, because the notice of the June 9, 2000, BVA
decision was last mailed on November 3, 2000, and the Court received his
NOA on February 12, 2001. Mar. 2001 Response (Resp.) at 1-2. He
maintains that the Court should use the most recent BVA‑mailing date
because he has evidence that the previous BVA mailings were unsuccessful
(several dates appear on the BVA decision he received) and that, if the
Board mailed its decision more than once, the pro-claimant nature of the
veterans benefits system would require that the most recent mailing be
accepted as the one that initiated the appeal period. Mar. 2001 Resp. at
1-2. Second, he asserts that the Court should apply the doctrine of
equitable tolling because he was incarcerated from February 2, 2000,
until sometime in September 2000 and that his inability to receive his
VA mail was not his fault. Mar. 2001 Resp. at 2, 4. In support of his
arguments, the appellant has provided a copy of an envelope that he
avers was used to mail the BVA decision and on which is a November 3,
2000, USPS postmark. Mar. 2001 Resp. at 6.

On April 4, 2001, the Court, through the Clerk of the Court, ordered the
Secretary (1) to file a preliminary record evidencing that a copy of the
June 9, 2000, BVA decision was mailed to both the appellant and his
representative pursuant to the requirements of 38 U.S.C. § 7104(e) and
(2) to address the appellant\'s assertions that the decision copy mailed
to him contained more than one date. Apr. 4, 2001, Order. The Court also
ordered the appellant to provide to the Court a copy of the BVA decision
that he asserts was mailed to him on November 3, 2000. *Ibid.* On
April 20, 2001, the appellant provided a copy of that BVA decision, on
the first page of which appear three stamped dates: June 9, 2000;
September 6, 2000; and November 2, 2000. The September 2000 date is
crossed out and the word \"Remailed:\" is handwritten at a single
location in front of and half-way between the September and November
2000 dates. Also on the first page of that BVA decision is a July 5,
2000, date-received stamp of the \"BVA-ADMIN TEAM 3\".

On May 25, 2001, the Secretary filed a response to the Court\'s order
and the preliminary record. The preliminary record contains an affidavit
from the Director of the BVA Administrative Service. Prelim. R. at
30-32. The affidavit avers as follows: (1) A copy of the Board\'s June
9, 2000, decision was mailed on that date to the veteran at his
then-most recent address at 210 Hospital Street, Apartment 111,
Richmond, VA 23219; (2) the June 2000 mailing was returned to the Board
as undeliverable by the USPS with the notation \"Moved Left No Address;
Unable to Forward; Return to Sender;\" (3) on July 6, 2000, the Board
forwarded a copy of the decision to the Roanoke RO with a request that
the copy be remailed to the veteran after that RO had ascertained his
correct address; (4) on September 6, 2000, that RO remailed the copy to
him at 1701 Fairfield Way, Richmond, VA 23223 (which was the return
address provided by the veteran on correspondence mailed to that RO on
August 9, 2000); (5) the September 2000 mailing was returned to the RO;
(6) on November 2, 2000, that RO remailed the copy to the veteran at
P.O. Box 12393, Richmond, VA 23241 (the address provided by the veteran
on a VA Form 20-572 (\"Request for Change of Address/Cancellation of
Direct Deposit\") dated October 4, 2000, and received by that RO on
October 6, 2000); (7) there is no indication in the veteran\'s claims
file that the copy of the June 9, 2000, BVA decision that was remailed
to the P.O. Box 12393 address was returned as undeliverable by the USPS;
and (8) a copy of the June 2000 BVA decision was mailed on June 9, 2000,
to the veteran\'s representative, the Virginia Department of Veterans
Affairs. Prelim. R. at 31, 32. Further, the affidavit indicates that the
original copy of the BVA decision retained by the Board administrative
office and contained in the veteran\'s claims file has only a June 9,
2000, date-stamp on it and that the additional date-stamps of September
6, 2000, and November 2, 2000, were placed on the file copy retained by
the RO at the time of each successive mailing by the RO. Prelim. R. at
32. The Secretary argues that a copy of the BVA decision was mailed to
the veteran on June 9, 2000, pursuant to the requirements of 38 U.S.C. §
7104(e), at his most current address of record in his claims file and
that the appellant\'s asserted nonreceipt of the Board\'s decision in a
timely manner was due to his failure to provide VA with his correct
address.

On July 18, 2001, the Court ordered the Secretary to file (1) an
affidavit as to the return as undeliverable of the September 2000
mailing of the BVA decision and (2) a memorandum of law discussing the
implications of this affidavit as to his arguments in this case. *Davis
v. Principi*, No. 01-323, 2001 WL 880759, at \*2 (Vet. App. July 18,
2001) (table). The Court also ordered the appellant to respond to the
Secretary\'s affidavit and memorandum. *Ibid.* On August 16, 2001, the
Secretary notified the Court that, other than the handwritten notes on
the June 9, 2000, envelope, the appellant\'s claims file did not contain
any evidence regarding the return of the September 2000 mailing. Aug.
2001 Mem. at 1. On September 4, 2001, the appellant responded and
concedes that the Board mailed a copy of the June 9, 2000, BVA decision
to the appellant on that date. Sept. 2001 Mem. at 1. He argues that
there was no evidence that the Board mailed a copy of the June 9, 2000,
BVA decision to his representative. Sept. 2001 Mem. at 4.

On December 6, 2001, the Court ordered the Secretary to file an
additional memorandum of law discussing (1) to what extent the Secretary
had conducted a search of the appellant\'s claims file for other
possible and plausible addresses prior to the appellant\'s submission in
August 2000 of an additional address and (2) assuming that the
presumption of regularity had been rebutted in this case by the return
of the Board\'s June 9, 2000, mailing of the BVA decision, from what
date should the 120-day judicial-appeal period begin to run. *Davis v.
Principi*, No. 01-323, 2001 WL 1646881, at \*2 (Vet. App. Dec. 6, 2001)
(table). The Court also ordered the appellant to respond. *Ibid.* On
February 6, 2002, the Secretary responded with an affidavit from Holly
James, the Veterans Service Representative who handled the veteran\'s
claims file at the Roanoke RO during the latter half of 2000; she avers
as follows: (1) She was trained, and it was her practice, to review the
file to ensure that the current address was used when any correspondence
from a claimant was returned as undeliverable, *see* [VA Adjudication
Procedure Manual 21-1]{.smallcaps} ([Manual 21-1]{.smallcaps}), part
III, ¶ 1.04g (1997); (2) she would have remailed the June 2000 BVA
decision had she found a more current address for the veteran in this
case; and (3) from the notations in the claims file, she believes that
she did remail a copy of the June 9, 2000, BVA decision to the veteran
on both September 6 and November 2, 2000. Feb. 2002 Mem., Ex. 1. On
February 25, 2002, the appellant responded through counsel; he asserts
that, where notice of the BVA decision is returned as undeliverable, the
judicial-appeal period is tolled until VA successfully mails that notice
to the veteran at a current address and that the judicial-appeal period
in this case began on November 2, 2000, with the successful mailing of
the notice. Feb. 2002 Mem. at 3-4. He also argues that VA failed to mail
notice of the June 9, 2000, BVA decision to his representative.
Feb. 2002 Mem. at 7.

**II. Analysis**

***A. Judicial-Appeal Period***

In the instant case, as the parties agree, (1) the Board made an
unsuccessful attempt on June 9, 2000, to notify the veteran about its
decision issued on that same day by mailing to him a copy of the
decision at the Hospital Street address; (2) the RO made an unsuccessful
attempt on September 6, 2000, by mailing a copy to him at the Fairfield
Way address; and (3) the RO made a successful attempt by mailing a copy
to him in early November 2000 at the P.O. Box 12393 address. Prelim. R.
at 18. The veteran\'s filing of his NOA on February 12, 2001, was 248
days after the unsuccessful June 9, 2000, mailing; 156 days after the
unsuccessful September 6, 2000, mailing; and 102 days after the
successful November 2, 2000, mailing. The questions before the Court are
therefore (1) whether, and if so when, the Board fulfilled the mailing
requirements of section 7104(e) and (2) which VA mailing should be used
to calculate whether the veteran\'s NOA was timely filed within the
120‑day judicial-appeal period under 38 U.S.C. § 7266(a).

***1. Applicable Statutory Provisions***

This case turns on the interrelationships of various BVA obligations
under sections 5104(a), 7104(e), and 7266 of title 38, U.S. Code. Those
provisions provide:

**§ 5104. Decisions and notices of decisions**

> \(a\) In the case of a decision by the Secretary under section 511 of
> this title affecting the provision of benefits to a claimant, the
> Secretary shall, on a timely basis, provide to the claimant (and to
> the claimant\'s representative) notice of such decision. The notice
> shall include an explanation of the procedure for obtaining review of
> the decision.

. . . .

\* \* \* \*

**§ 7104. Jurisdiction of the Board**

. . . .

> (e)(1) 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.
>
> \(2\) If the claimant has an authorized representative, the Board
> shall--
>
> \(A\) mail a copy of its written decision to the authorized
> representative at the last known address of the authorized
> representative; or
>
> \(B\) send a copy of its written decision to the authorized
> representative by any means reasonably likely to provide the
> authorized representative with a copy of the decision within the same
> time a copy would be expected to reach the authorized representative
> if sent by first‑class mail.

\* \* \* \*

**§ 7266. Notice of appeal**

> (a)(1) 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 decision shall file a notice of
> appeal 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.
>
> \(2\) An appellant shall file a notice of appeal under this section by
> delivering or mailing the notice to the Court.
>
> \(3\) A notice of appeal shall be deemed to be received by the Court
> as follows:
>
> \(A\) On the date of receipt by the Court, if the notice is delivered.
>
> \(B\) On the date of the United States Postal Service postmark stamped
> on the cover in which the notice is posted, if the notice is properly
> addressed to the Court and is mailed.
>
> \(4\) For a notice of appeal mailed to the Court to be deemed to be
> received under paragraph (3)(B) on a particular date, the United
> States Postal Service postmark on the cover in which the notice is
> posted must be legible. The Court shall determine the legibility of
> any such postmark and the Court\'s determination as to legibility
> shall be final and not subject to review by any other Court.

38 U.S.C. §§ 5104(a), 7104(e), 7266(a).

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). Pursuant to 38 U.S.C. § 7266,
in order for a claimant to obtain review of a BVA decision by this
Court, that decision must be final and the person adversely affected by
it generally must file a timely NOA with the Court. *See Bailey (Harold)
v. West*, 160 F.3d 1360, 1363 (Fed. Cir. 1998) (en banc). *But see*
*Santana-Venegas v. Principi*, 314 F.3d 1293, 1298 (Fed. Cir. 2002)
(holding as matter of law that, where veteran misfiles NOA at RO where
he filed his original claim but files that NOA within 120‑day
judicial-appeal period, that period is tolled until Court actually
receives NOA).

To have been timely filed under 38 U.S.C. § 7266 and Rule 4 of this
Court\'s Rules of Practice and Procedure, an NOA must generally have
been received (or, in certain circumstances, be deemed received) by the
Court \"within 120 days after the date on which notice of the \[BVA\]
decision is mailed pursuant to \[38 U.S.C. § \]7104(e)\". 38 U.S.C.
§ 7266(a); *see Cintron v. West*, 13 Vet.App. 251, 254 (1999); *Leonard
v. West*, 12 Vet.App. 554, 555 (1999) (per curiam order); *see also*
38 U.S.C. § 7266(c)(2). *But see Irwin* *v. Dep\'t of Veterans Affairs*,
498 U.S. 89, 96 (1990); *Evans (Billy) v. West*, 12 Vet.App. 396, 399
(1999) (citing *Bailey (Harold)*, 160 F.3d at 1365, and other cases
regarding equitable tolling of NOA-filing period under certain
circumstances).

In order to fulfill the mailing requirements of section 7104(e), the
Board must \"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); *Thompson (Charles) v. Brown*, 8 Vet.App. 169, 179, *sua
sponte recons. ordered on other grounds*, 8 Vet.App. 430 (1995),
*reaff\'d*, 9 Vet.App. 173 (1996) (per curiam order). In addition, \"if
the claimant has an authorized representative,\" the Board must also
mail or send in some other timely way a copy of the BVA decision to that
\"authorized representative at the last known address of the authorized
representative\". 38 U.S.C. § 7104(e)(2); *Thompson (Charles)*,
8 Vet.App. at 180.

***2. Presumption of Regularity of Mailing***

For purposes of determining whether an NOA is timely filed under
section 7266(a) within the 120-day period from the Board\'s mailing of
notice of its decision, the Court applies to the Board\'s mailing of a
decision copy under section 7104(e) a \"presumption of regularity\" that
the Secretary and the Board discharged their official duties by mailing
the decision copy to the claimant and to the claimant\'s representative,
if any, at each of their last known mailing addresses on the date on
which the decision is issued. *Clark v. Principi*, 15 Vet.App. 61, 63
(2001); *Cross v. Brown*, 9 Vet.App. 18, 19 (1996); *Thompson
(Charles)*, 8 Vet.App. at 180; *Ashley v. Derwinski*, 2 Vet.App. 307,
309 (1992) (*Ashley II*), *aff\'g on recons.* 2 Vet.App. 62 (*Ashley
I*); *see also* 38 U.S.C. §§ 7104(e), 7266(a). That presumption can be
overcome only by \"clear evidence to the effect that the BVA\'s
\'regular\' mailing practices are not regular or that they were not
followed\". *Ashley II*, *supra*. Evidence of nonreceipt of a BVA
decision does not establish the \"clear evidence\" needed to rebut the
presumption of regularity of the mailing. *Ibid.*; *cf. Chute
v. Derwinski*, 1 Vet.App. 352, 353 (1991) (holding that presumption of
regularity was rebutted where Secretary could not show that he had
mailed notice of BVA decision and appellant\'s letters appeared to
reflect that he was seeking information regarding status of BVA review,
thus indicating that he had not received that notice).

This Court has held that the presumption of regularity of mailing has
been rebutted where a copy of a BVA decision that is mailed to a
claimant at his or her last known address is returned as undeliverable
by the USPS and the claimant\'s claims file discloses other possible and
plausible addresses that were available to the Secretary at the time of
the BVA decision. *Cross*, 9 Vet.App. at 19. The Court notes that,
although there is language in certain Court opinions that might suggest
that the presumption is rebutted by evidence of only a \"returned as
undeliverable\" mailing, those opinions do not establish a new basis for
rebuttal of the presumption because there were in those cases alternate
addresses for the claimant in the VA claims file at the time of the BVA
decision. *Woods v. Gober*, 14 Vet.App. 214, 220-21 (2000); *Thompson
(Charles)*, 8 Vet.App. at 178-79. The Court reiterates that in order to
rebut the presumption under current caselaw the appellant must establish
***both*** that the mailing was returned as undeliverable ***and*** that
there were other possible and plausible addresses available to the
Secretary at the time of the BVA decision. *See Woods*, *Thompson*, and
*Cross*, all *supra*.

Once the presumption has been rebutted, the Secretary has the burden to
show to the contrary \-- that is, that the BVA decision was mailed in
the appropriate manner. *See* *Ashley II*, 2 Vet.App. at 311. In order
to carry his evidentiary burden when the BVA decision has been returned
as undeliverable, the Secretary must establish that he thereafter
attempted to remail notice of the BVA decision to the veteran at the
alternative address(es) available to the Secretary at the time of the
BVA decision. *See Cross*, 9 Vet.App. at 19; *accord Woods*, 14 Vet.App.
at 221 (holding that, where presumption was rebutted, Secretary failed
to carry his burden to show that decision was appropriately mailed to
appellant because there was no evidence that decision was mailed to
alternative address that was in file at time of decision). In any event,
any defect in the mailing process may be cured by proof of actual
receipt of the BVA decision by the appellant, \"and the 120-day
\[judicial-appeal\] period does not begin to run until the date on which
that defect is cured by actual receipt.\" *Clark*, 15 Vet.App. at 63;
*see* *Ashley II*, 2 Vet.App. at 311.

***B. Application to Facts of Case***

***1. Mailing to the Appellant\'s Representative***

The appellant argues that the Board failed to mail a copy of the June 9,
2000, BVA decision to his representative as required by section 7266(a)
and section 7104(e)(2). Sept. 2001 Mem. at 4; Feb. 2002 Mem. at 7.
However, the appellant has provided no evidence to support rebuttal of
the presumption that the Board made such a mailing on the date of the
BVA decision. *See Thompson (Charles)*, 8 Vet.App. at 180. Accordingly,
the Court holds that the presumption of regularity has not been rebutted
as to the BVA mailing of notice to the appellant\'s representative.

***2. Mailing to the Appellant***

***a. Presumption of Regular Mailing*.** In the instant case, there is
no dispute regarding the following circumstances: (1) The Board mailed
the June 9, 2000, BVA decision to the appellant at the Hospital Street
address on June 9, 2000; (2) that mailing was returned as undeliverable
to the Board by the USPS; (3) there was no other address for the veteran
in the claims file at the time of the BVA decision; and (4) the RO, at
the request of the Board, searched the claims file for additional
addresses at some point after the Board in early July 2000 asked it to
do so. The Secretary contends, and the Court agrees, that, based on this
Court\'s section 7104(e) caselaw and the above facts, the presumption of
regularity was not rebutted, because, although the June 9, 2000, mailing
of the BVA decision was returned as undeliverable, there was no
additional possible and plausible address in the claims file ***at the
time of the BVA decision***. *See Woods*, 14 Vet.App. at 220-21;
*Cross*, 9 Vet.App. at 20; *Thompson (Charles)*, 8 Vet.App. at 178-79.
In a \"returned as undeliverable\" case, once the Court determines that
at the time of the BVA decision there was no additional address(es) in
the claims file for VA to use to mail the BVA decision to the appellant,
the Board is entitled to rely on the regularity of its mailing to the
original address and the presumption of regularity has not been
rebutted. *See Woods*, *Cross*, and *Thompson*, all *supra*.
Accordingly, the Court holds that VA fulfilled the mailing requirements
of section 7104(e) at the time of the first mailing on June 9, 2000.

***b. Equitable Tolling.*** The appellant asserts that the Court should
apply the doctrine of equitable tolling because the appellant\'s
inability to receive mail while he was incarcerated was not due to any
fault or action on his part. Mar. 2001 Resp. at 2. Equitable tolling is
available to toll the section 7266 judicial-appeal period under certain
circumstances. *See Bailey (Harold)*, 160 F.3d at 1365. However,
\"principles of equitable tolling . . . do not extend to what is at best
a garden variety claim of excusable neglect\", *Irwin*, 498 U.S. at 96,
and \"a veteran who files an untimely \[NOA\] must nevertheless show
that he \'exercised due diligence in preserving his legal rights.\'\"
*Jaquay v. Principi*, 304 F.3d 1276, 1287 (Fed. Cir. 2002) (en banc)
(quoting *Irwin*, 498 U.S. at 96).

A \"case does not involve a \'garden variety claim of excusable
neglect\' . . . \[where\] the appellant did all he was required to do in
order to obtain the relevant information regarding the benefits that he
sought.\" *Smith (Edward) v. Derwinski*, 2 Vet.App. 429, 435 (1992)
(citation omitted); *see also Chastain v. West*, 13 Vet.App. 296, 299
(2000) (holding that \"excusable neglect\" in veterans benefits context
is where late filing is veteran\'s fault). In regard to the presumption
of regular mailing, \"it is the burden of the veteran to keep . . . VA
apprised of his whereabouts.\" *Hyson v. Brown*, 5 Vet.App. 262, 265
(1993); *see also* Prelim. R. at 3 (notifying appellant that he \"must
keep . . . VA informed of any mailing address change in order to receive
notice about benefits . . . and to allow . . . VA to contact \[him\]
promptly\"). This Court has held in the appellant\'s favor where \"the
appellant had taken affirmative steps specifically to notify VA of his
address change after the file had been sent to the Board\", even though
the appellant had notified the RO instead of the Board. *Cross*,
9 Vet.App. at 20.

In this case, the veteran was in jail at the time of the BVA decision,
but, as evidenced by his August 11, 2000, letter to the RO regarding his
VA disability checks (Prelim. R. at 23-25), he knew how to communicate
with VA and did so from jail. Hence, there is no indication that he was
unable to carry out his *Hyson* duty to notify VA of his change of
address, about which duty he was specifically informed in September 1996
(Prelim. R. at 3). Because the appellant failed to exercise due
diligence in this regard, the Court rejects his equitable-tolling
argument. *See Irwin*, 498 U.S. at 96.

***c. Extending the Court\'s Caselaw***. The appellant argues, in
essence, that, irrespective of traditional equitable-tolling principles,
the Court should extend the current caselaw to hold that, where VA has
made more than one attempt to mail the BVA decision, the pro-claimant
veterans benefits system, *see Bailey (Harold)*, 160 F.3d at 1365,
requires that the 120-day judicial-appeal period be tolled until VA
mails the decision to the correct, current address. *See* Mar. 2001
Resp. at 1-2. The appellant also appears to be arguing that in order for
a claimant to receive the benefits of fair process, *see Austin
v. Brown*, 6 Vet.App. 547, 551-52 (1994); *Thurber v. Brown*, 5 Vet.App.
119, 122-26 (1993), VA must \"provide\", 38 U.S.C. § 5104(a), to the
claimant notice (in other words, the claimant must actually receive
notice) of the start of the 120-day judicial-appeal period. *See also
Sutton v. Brown*, 9 Vet.App. 553, 569-70 (1996) (discussing fair-process
procedure for Board to provide notice of its intent to adjudicate case
based on issue or evidence (and of intended reliance on that evidence to
deny claim) not addressed by RO). Such an argument implicates the
Board\'s section 5104(a) responsibility to \"provide to the claimant
(and to the claimant\'s representative) notice of \[a BVA\] decision\",
which notice \"shall include an explanation of the procedure for
obtaining review of the decision\", 38 U.S.C. § 5104(a).

The section 5104(a) provisions require the Board to ensure that a copy
of the BVA decision is provided to a claimant along with notice of the
claimant\'s appellate rights. *See Thompson (Charles)*, 8 Vet.App. at
175-76; *see also* 38 C.F.R. § 3.103(b) (2002) (providing that
\"\[c\]laimants and their representatives are entitled to notice of any
decision made by VA\"). Hence, in order to accept the appellant\'s
argument, the Court would have to hold that a failure of compliance with
the section 5104(a) duty tolls the running of the section 7266(a)
judicial-appeal period. In *Ashley I*, this Court has already held that
it does not. *Ashley I*, 2 Vet.App. at 65-66 (holding that it is proper
***mailing*** of notice of BVA decision under section 7104(e) that
triggers section 7266(a) judicial‑appeal period, not occurrence of
notification or, in other words, actual receipt of notice of BVA
decision, that does so). *But cf. Thompson (Charles)*, 8 Vet.App. at
176‑77 (concluding that \"section 5104(a)\'s general command to provide
certain types of notices is given content as to BVA decisions by section
7104(e)\'s more specific command to provide copies of BVA decisions by
\'mail\'\" and holding that presumption of mailing rebutted where Board
sent notice to appellant at his address of record but did not also mail
notice to another address of appellant that BVA had used immediately
before issuing BVA decision).

In view of several relatively recent opinions of the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit), which lend some
support to the appellant\'s contentions here in terms of setting forth
liberal bases for the application of equitable-tolling principles, we
agree that we should reexamine our caselaw and proceed to do so.

Notwithstanding clear statutory and regulatory language, the Federal
Circuit has concluded in several cases that NOAs have been timely filed
based on post-*Irwin* equitable-tolling principles. Those Federal
Circuit cases include: *Santana-Venegas*, 314 F.3d at 1298 (noting VA
guidelines requiring timely assistance and timely response to
correspondence sent to VA and holding \"as a matter of law that a
veteran who misfiles his or her \[NOA\] at the same VARO from which the
claim originated within the 120-day judicial-appeal period of 38 U.S.C.
§ 7266, thereby actively pursues his or her judicial remedies, despite
the defective filing, so as to toll the statute of limitations\");
*Jaquay*, 304 F.3d at 1288-89 (noting VA guidelines requiring timely
assistance and timely response to correspondence sent to VA and holding
that equitable tolling applied where claimant had actively pursued
judicial remedies during section 7266 appeal period by filing motion for
BVA reconsideration at RO, even though claimant received specific notice
that motion must be filed at Board); *Santoro v. Principi*, 274 F.3d
1366, 1370 (Fed. Cir. 2001) (holding that NOA addressed to Court but
with incorrect zip code that caused it to be delivered to VA General
Counsel rather than to this Court was \"properly addressed\" and thus,
by implication, was timely filed under section 7266(c)(2), even though
NOA and NOA cover were apparently not available); and *Linville
v. West*, 165 F.3d 1382, 1385-86 (Fed. Cir. 1999) (holding that, in
keeping with *Rosler v. Derwinski*, 1 Vet.App. 241, 249 (1991), VA
regulatory postmark rule, 38 C.F.R. § 20.1001(b), applied to motions for
BVA reconsideration so as to toll section 7266 judicial-appeal period,
even though under that regulation reconsideration motions generally may
be filed at any time and under 38 C.F.R. § 20.305(a) VA\'s postmark rule
applied only when document must be filed within certain time period).

Nevertheless, the tolling of the appeal period in this case would go
beyond those Federal Circuit cases for two reasons. First, the Federal
Circuit specifically found in *Santana-Venegas* and *Jaquay*, both
*supra*, that the appellants had actively pursued their judicial
remedies. *See Santana-Venegas*, 314 F.3d at 1298 (holding as matter of
law that due diligence is satisfied where veteran misfiles NOA at RO
where he filed his original claim but files that NOA within 120-day
judicial‑appeal period); *Jaquay*, 304 F.3d at 1288 (holding that
due-diligence requirement is satisfied by filing motion for BVA
reconsideration within judicial-appeal period, even though filing was
made at RO instead of Board). In contrast, by failing to keep VA
apprised of his current address, the appellant here, as we concluded in
part II.B.2.b., above, did not act with the necessary due diligence.
*See Hyson*, 5 Vet.App. at 265; Prelim. R. at 3.

Second, the Federal Circuit in *Linville*, *supra*, constructed an
interpretation of a regulation that supported a liberal reading of the
statute involved, and in *Santoro*, *supra*, the court used a USPS
regulation to find that the appellant\'s error in using the wrong zip
code on the envelope was not fatal to his equitable-tolling argument. In
this case, however, there appears to be no principled way in which to
interpret the language of sections 7104(e)(1) and 7266(a) to allow the
appellant to control the length of the NOA-filing period by periodically
submitting new addresses to VA. *Cf. Rosler*, 1 Vet.App. at 249 (noting
that Court was cognizant of possibility that claimant could frustrate
judicial review period by filing repetitive motions for BVA
reconsideration). Furthermore, although recognizing the importance of
section 5104(a) notice, *see Thompson (Charles)*, 8 Vet.App. at 176-77,
the Court is not inclined to create a continuing -- and possibly endless
-- VA duty to pursue ***the current address*** of a claimant,
particularly in the face of the claimant\'s lack of due diligence in
failing to notify VA of his changed address. *See Jaquay*, 304 F.3d at
1283 (\"an appeal by a veteran of a BVA decision involves a waiver of
sovereign immunity, which must be strictly construed\"). Moreover, this
case is unlike *Rosler*; there, the motion for BVA reconsideration
raised questions of the Board\'s jurisdiction and whether there was any
Board action for the Court to review, whereas here, there is no question
whether the BVA decision is available for review but only whether the
appellant has timely appealed that decision.

Hence, we cannot interpret the above discussed Federal Circuit cases as
overruling *Ashley I*\'s holding that the section 7266(a)
judicial-appeal period does not \"begin\[\] on the date a BVA decision
is ***received*** by the claimant and the claimant\'s authorized
representative, if any\", *Ashley I*, *supra*, but instead begins when
the Board promptly mails a copy of its decision to the claimant at his
last known address pursuant to 38 U.S.C. § 7104(e)(1). *See* 38 U.S.C.
§ 7266(a). The Court notes that (1) nothing in this opinion alters VA\'s
continuing duty to take all reasonable steps to make sure that a
claimant actually receives notice pursuant to section 5104(a) and
(2) the Board and the RO in this case met the requirements of that
notice provision by continuing to mail the BVA decision copy to a new
address each time one was discovered for the claimant (although a better
record on appeal as to the second returned notice would have been
helpful). The Court reaffirms its holding in *Ashley I* that the
important VA duty under section 5104(a) to \"provide\" to a claimant
notice of a decision and the claimant\'s appellate rights does not
affect the tolling of the section 7266 judicial-appeal period. *See* 38
U.S.C. §§ 7104(e)(1), 7266(a); *Ashley I*, *supra*.

Accordingly, the Court holds that the first mailing to the veteran on
June 9, 2000, which, as we stated in part II.B.2.b., above, fulfilled
the mailing requirements of section 7104(e), should be used to calculate
whether the veteran\'s NOA was timely filed within the 120-day
judicial-appeal period under 38 U.S.C. § 7266(a) and that the
appellant\'s February 12, 2001, NOA was therefore untimely as having
been filed well beyond that 120-day period.

**III. Conclusion**

Upon consideration of the parties\' pleadings, the evidentiary record,
and the foregoing analysis, the Court grants the Secretary\'s motion to
dismiss for lack of jurisdiction.

APPEAL DISMISSED.