was entitle to the benefit of the presumption that his counsel had mailed is v a nine timely to the v a unless the presumption of mailing had been rebutted by the a which did not occur in this case the veterans court heard by determining that the evidence of mailing was insufficient to establish the presumption of receipt of mr annan is the a nine by the mr parnell i guess there's i guess just an alternative way of looking at this credibility about the affidavit as to whether it was sufficient i mean suppose for example that an affidavit had come five years after the statement of the case or something could make a determination that the affidavit wasn't credible and that that presumption wasn't invoked as a result would you agree with that i would agree with that your honor although in this case the board and the v a treated this as a presumption of regularity issue as opposed to a presumption of mailing issue and the affidavit simply was not addressed until the most recent remand from the bedfords court which invoke the presumption that there would have to be some determination that the affidavit is credible thought my reluctance your honor is that it seems to me that that's part of the d a s burden in rebutting the presumption to me the question is whether or not the mailbox rule attaches when there is such a submission which is what took place in this case when i discovered that the v a had not received the v a nine that i had timely sent by regular mail to the v a now what one  matter they have for clarification about the impact of this case is that with the evolution of the electronic system of the v a and its  capable of being directly uploaded to the be a by both a claim and individually and through his representative can i ask you this if if if we separate  to legally err in saying that a declaration because it is self interested is not cannot cannot be legally sufficient think actually the veterans court went further than that i think the veterans court really focused on whether or not an affidavit from the attorney and by implication transforming this court that spoke directly to the submission by an attorney that the veterans court chose to follow the rule set out in sorrentino i suppose suppose we were to conclude that  the veterans court was wrong either as to a attorney declarant or or even more broadly as to the legal insufficiency of the declaration because simply because it is self serving and not independent proof and suppose what issues would be open on remand and in particular as a procedural matter would there be a opportunity for additional i don't suffer mentary affidavit  or anything like that that might address other topics such as and a their regular course of mailing practice in your office  but i have several responses to that but the problem with a rematch and in this case is is that the rules under which the veterans court operates are limited to the record that was before the board and the only record before the board was my affidavit that the v a nine had been timely mailed to the v a in adequate time for the v a to have received it  for the disposition by the veterans court and i do not believe that there is any basis for the veterans courts disposition of mr anthony is appeal  as a matter of law your declaration was sufficient the concern i have is that if we look at different cases from different circuits on the mailbox rule i think you are correct that you know a declaration might sometimes sufficient but it really is a case by case determination so how can we not quite possibly reverse don't we have to make a for the court below can make an assessment based on you know a case by case analysis as to whether you declaration was sufficient respectfully honore i don't think so the veterans court had two opportunities to deal with this and send it back on remit and for the board to address this under the mailbox rule  the department of veterans affairs and in this statutory scheme in this type of adjudicatory system the intent is to be not and the serial they had multiple opportunities to accept it as did the veterans court and both rejected it on bases that were not founded in any version of the law that i could locate even though you correctly state does fall that there are cases that talk about the circumstances in which an affidavit might or might not be accepted as attaching that was not what took place here  two issues here one was it male and two was it the on the st issue don't you bear the burden of establishing that it was male and if you establish that as male bad invokes the presumption and then the has the burden to show that it wasn't received is that not an accurate statement that i believe that is an accurate statement your honor and my point is that my affidavit did that and there is no evidence in the record to the contrary and that was the evidence that was both before the board and before the veterans court and they didn't correctly apply the law as it has been interpreted by the various courts about what constitutes attachment please the court we respectfully request that this court affirm the veterans court's decision and reject mr anthony as argument that a simple statement from a party or parties representative should be per se enough for the presumption of receipt to attach under the mailbox rule no matter how conclusory or no matter how many years after the fact the affidavit takes place here here particularly mr carpenter's affidavit i think it's interesting that your honor mentioned the statement the sum total of the statement which the veterans court and the board did both know in their decisions is a simple sentence that on january th two thousand and ten a male the substantive appeal to the regional office in waco texas it appears that mr on and he is arguing that a statement by an attorney no matter how late after the fact and no matter how devoid of detail should be per se enough for the presumption of receipt to attach but that does not accord demonstrating that in that case and no way was properly addressed stamped and mailed an adequate time anywhere that the board or veterans part contended that either ok why is there anything unusual about mr carpenter not raising the fact that this was mailed well made almost five years after the fact and that he raised it to a half years after the fact shows that a person a role that mr on a nia is advocating for that no matter what a statement from a party's representative should be enough for the presumption of receipt to attach i think we're more rebutting that by showing that here we have almost five years passage of time and yet he's asking this court to not only not only hold up the veterans court areas but t a party's own self serving testimony is not enough that's the exact language that the veterans court used in rio's two and at the veterans court used here but i don't believe that two and fifty and the veterans court's decision indicates that that means that an a certainly the veterans court might have done a better job of ilesa dating this but i think that's where it's important to note that rios to which the veterans court decision below was found by the times does state that it requires evidence of mailing apart from all parties and self serving testimony but does not preclude testimony at all indeed the veterans court specifically notes that there could be testimony of somebody witnessing the mailing or in the specifically in the light of the fifteen courts comments explicitly addressing the usefulness of a self serving affidavit in the context of the presumption of receipt the fine the court found no legal error in the board's alliance on correct yes it's correct that a self serving testimony is not enough but i don't think that i think if you look at rios two that doesn't mean that affidavits are testimony as a general rule  was enough to show the presumption of receipt infested rio's to itself i think is really notable because in rio's two there were actually two affidavits submitted from an employee of the parties representative so insufficient you agree with that i'm sorry but i think i can you please look at that do you agree with this proposition it would be legal error to rule that we hold self serving to mean simply conclusory or bare bones then yes if that statement does include detail of either the mailing itself or of routine business practices or circumstantial evidence which this court order going to  here that there is nothing in the star carpenter's affidavit it will be hosted or i'm not understanding your answer please tell me yes or no it is a legal error to reject a self serving i don't think it's legal error to always reject a statement from of party or parties representative stating that they mailed the appeal to a certain address i think is the pens on affidavit that's at hand and here the board clearly considered the facts of the specific affidavit at hand and noted that those the fact that this is the affidavit which were only one sentence long were not sufficient what your honor i think i put on it i think if you look to the examples that were addressed in rios and rios to just more more detail regarding that she saw the or the cases cited in rio to that and i can add this i did i was struck by the following longstanding aspect of the supreme court rules says that if the  postmark is i think twenty nine point two that if the postmark is missing or not legible the rd party commercial carrier doesn't provide the date of the document the date the document was received by the carrier the clerk will require the person who sent the documents so now we're talking about self serving to submit a notarized statement or declaration setting out in compliance with twenty eight u s c seventy four thousand seven hundred and forty six setting out the details of the filing and stating that the filing took place on a particular date within the permitted time doesn't i guess why should i not read that to say the supreme court thinks that  a self serving declaration can indeed suffice where the details of the filing may need to be filled in but really more than i put it in the mail addressed to the right place on this day well your honor i think a couple things i think that you know that the supreme court the what the supreme court found was was more than what's what we have in this case and again need is essentially asking and i can even quote from his brief that basically a statement no matter how long after or how conclusory essentially should be per say enough for the presumption of receipt and we would submit that even if this court finds that the veterans court erred by putting forth a bright line rule that it should not endorse mr ana nias view of the case but rather should just remount to the veterans court to although we do think that the veterans court did specifically just discuss the affidavit the reman would be for the veterans court to specifically look at the affidavit that mr carpenter submitted and determined based on the substance of that exact a whether that was sufficient for the presumption to attach or whether something more was needed in that particular case i would without and without a requirement that proof be quote affidavit itself then yes i think theoretically all the proof could be within the affidavit itself but that the veterans court is restricted to deciding on the facts of this specific affidavit and just to conclude since i know my program is almost up which is not supposed to be made by the better word by the board right which is why we believe that the court should actually affirm the veterans court's decision because the board the veterans court specifically noted that the did reject the affidavit because it was self serving but it did construe the theft of that specific affidavit and specifically cited to the exact nature of the facts alleged in the affidavit and analogized it to the facts of  cite the decision and rios to for the quote unquote self serving testimony aspect if this court has any other questions i'd be happy to answer them otherwise thank you of that time that is either unusual or somehow doesn't make the declaration more suspicious at the time in which the the a nine was filed was not remotely unusual and there would have been no reasonable expectation on either my client's part or my part as his advocate to assume that there was some unreasonable delay that had taken place that would have accounted for the lack of action on his into it the non receipt and that's really the problem here is that there was no way for my client or myself to know when the the a nine had been received under the new system with remote access to the claims file i am able to see within days occasionally sometimes weeks  whether or not the document was or was not received and given the length of time ahead of which the sixty day period for filing the being nine had left to  run under those circumstances i could simply have provided a nother the a nine had i known that it had not been received which i would be capable of knowing at the present time and that's why i made mention of the fact  that the advancements in the electronic filing process within the v a have hopefully a radical did this as a problem in the future ok i hope i've answered your question