## United States Court of Appeals for the Federal Circuit

2007-7239

HAROLD D. SAVITZ, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Sandra W. Wischow , Goodman Allen & Filetti P LLC, of Richmond, Virginia, argued for claimant-appellant. Tara K. Hogan , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Of c ounsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Martin J. Sendek , Attorney, United States Department of Veterans Affairs, of Wa shington, DC. Of counsel was Michael J. Timinski , Attorney. Appealed from: United States Court of Appeals for Veterans Claims Judge Alan G. Lance, Sr.

## United States Court of Appeals for the Federal Circuit

2007-7239 HAROLD D. SAVITZ Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secretar y of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in 05-1470, Judge Alan G. Lance, Sr.

__________________________ DECIDED: March 6, 2008

___________________________

Before MAYER, BRYSON, and GAJARSA, Circuit Judges

. BRYSON, Circuit Judge

. Appellant Harold Savitz appeals from t he decision of the Court of Appeals for Veterans Claims (“the Veterans Court”), in which the court affirmed a decision of the Board of Veterans’ Appeals denying Mr. Savitz an earlier effective date for service connection for a foot condition. In light of our recent decision in Rios v. Nicholson , 490 F.3d 928 (Fed. Cir. 2007), we reverse and remand. I Mr. Savitz served on active duty in the Un ited States Army from July 18, 1944, to December 4, 1945. For three months of that period, du ring the winter of 1944-45, he2007-7239 2 was a prisoner of war and was confined in a German P.O.W. camp. In December 1945, Mr. Savitz submitted to the Veterans Administration (“VA”) a claim for service connection for frozen feet and malnutrition. On April 30, 1946, the VA denied his claim in a letter that informed him of his right to appeal the decision within one year. During the course of the next 46 years, Mr. Savitz had various contacts with the VA, but none of those contacts involved his claim for frozen feet. The VA has no record of a timely appeal by Mr. Savitz of the 1946 denial of service connection. In August 1992, Mr. Savitz sought to reopen his claim for service connection for residuals of frozen feet and possible peripheral neuropathy. Mr. Savitz stated that he “suffer[s] from cold feet, especially in the winter, but occasi onally will have trouble sleeping in the summer and must use a hot water bottle or a heater.” The VA granted Mr. Savitz’s claim for service connection for frozen feet and peripheral neuropathy in April 1993 and assigned an effectiv e date of August 7, 1992, for the determination of service connection based on the agency’s record of communication with Mr. Savitz on that issue. Mr. Savitz then sought to obtain an earlier effective date for the determination of service connection. He contended that he had not allowed the VA’s 1946 decision to become final because he had sent a timely letter to the VA seeking to appeal the 1946 decision. He argued that his 1946 letter se rved as a notice of disagreement with the 1946 decision and that the 1946 dec ision therefore never became final. Although the VA does not have the letter or any record of having received such a letter, Mr. Savitz presented two typed draft letters in support of his contention that he sent the notice of disagreement in 1946. One of the drafts is unsi gned and undated and discusses the2007-7239 3 substance of his appeal. The ot her is on the letterhead of an electrical company and is dated July 8, 1946, but is unsigned and cuts off after three lines. Mr. Savitz also submitted a copy of a letter and an acco mpanying envelope with a 1946 postmark from a fellow prisoner of war, Fred Raiford, who stated t hat he exchanged shoes with Mr. Savitz while they were pris oners of war in order to accommodate Mr. Savitz’s swollen frozen feet. Mr. Savitz’s position is that the letter from Mr. Raiford was a “buddy statement” that he offered in support of his claim in 1946. The Board denied Mr. Savitz’s claim fo r an earlier effective date for service connection, holding that he had failed to show that he had filed a timely notice of disagreement in response to t he 1946 decision. The Board rul ed that Mr. Savitz’s effort to show that he timely submitted his not ice of disagreement in 1946 was governed by 38 U.S.C. § 7105(b)(1), which provides that if a notice of disagreement is not received by the VA within one year , it will be accepted as timely fil ed if it is “postmarked before the expiration of the one-year period.” Based on section 7105, the Board concl uded that there were only two ways in which Mr. Savitz could prov e that he mailed a timely not ice of disagreement for the 1946 denial of service connection: by a postmark showing a date within one year of the date of the decision, or by pr oof of actual receipt by t he VA within that period. The Board found that the evidence submitted by Mr. Savitz did not include a postmarked letter to the VA or proof of re ceipt of the notice of disagreement by the VA prior to 1992. The Board then explained: Without a federal postmark or proof of actual receip t by the VA, there is no proof that the July 1946 letter and attach ments were ever put into the post office or delivered to a postman until November 1992. The veteran has never proven that he put the July 1946 letter and attachments into the post2007-7239 4 office or delivered them to the postman until November 1992. Since he has not proven that he put the letter into the post office or delivered them to the postman in 1946, it cannot be presumed that the July 1946 letter and attachments reached the VA in 1946. The Veterans Court affirmed. Mr. Savi tz argued that the co urt should apply the common law “mailbox rule,” under which his notice of disagreement would be presumed to have been received by the VA if he coul d prove that he depos ited the notice of disagreement into an authorized mailbox or otherwise placed it into the hands of U.S. Postal Service officials. The Veterans Court, however, held the common law “mailbox rule” inapplicable and held that t he only way Mr. Savitz could prove a timely filing of his notice of disagreement was by satisfying the requirements of section 7105. The court then rejected Mr. Savitz’s effort to show ti mely filing because he had failed to satisfy the requirements of section 7105, i.e., he had not shown that t he VA had actually received the notice of disagreement within one year nor had he shown that his letter bore a postmark showing that the not ice was mailed before the ex piration of the one-year period. This appeal followed. II In our recent decision in Rios v. Nicholson , 490 F.3d 928 (Fed. Cir. 2007), we held in another veterans case that the comm on law mailbox rule is not automatically abrogated by enactment of a statut e providing a postmark date rule to determine date of receipt. Rios held that “if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.” Rios , 490 F.3d at 9312007-7239 5 (citing Rosenthal v. Walker , 111 U.S. 185, 193 (1884)). We pointed out that the common law mailbox rule and the statutory postmark rule serve different purposes. The latter establishes when a particular document is deemed to have been received, while the former establishes whether the document is presumed to have been received at all. The government concedes that although Rios dealt with a different statutory provision, 38 U.S.C. § 7266, our analysis in Rios is equally applicable to the statute at issue in this case, 38 U.S.C. § 7105(b)(1), and we agree. Nonethel ess, the government contends that the Veterans C ourt’s statements in this case rejecting the application of the mailbox rule constitute harmless erro r because “the [B]oard and the Veterans Court carefully evaluated the evidence Mr. Savitz presented to support his contention that he submitted a timely [notice of disagreement] in 1946. The [B]oard carefully considered Mr. Savitz’s assertion that he submitted a timely [notice of disagreement] in 1946 and concluded that Mr. Savitz’s proffered evidenc e was insufficient to meet the presumption of the mailbox rule . . . .” We disagree with the government’s harmless error contention. Both the Board and the Veterans Court appear ed to view Mr. Savitz’s claim that he timely filed his notice of disagreement through the pers pective of the statutory “postmark rule” set forth in 38 U.S.C. § 7105(b)(1). T hus, the Board stated that “[w]ithout a federal postmark or proof of actual receipt by t he VA, there is no proof that the July 1946 letter and attachments were ever put into the post office or delivered to a postman until November 1992.” The Board appears to have concluded that the only way Mr. Savitz could establish that he mailed the notice of disagreement was by pointing to proof of a postmark or actual receipt. That approach is contrary to the2007-7239 6 mailbox rule, which creates a presumption of receipt upon proof that a particular document was placed in the cust ody of the Postal Service. Similarly, the Veterans Court stated that, in light of the statutory postmark rule, “there is no evidence of [a notice of di sagreement] filed or postmarked before the expiration of the one-year period.” The Vete rans Court did not analyze the evidence or the Board’s opinion under the common law mailbox rule. For that reason, the conclusion of both the Board and the Court with regard to Mr. Savitz’s failure of proof does not establish that the Board and Court would have viewed his proof as insufficient if they had applied the common law mailbox ru le rather than the st atutory “postmark” rule. Because neither the Board nor the Vete rans Court has addressed the issue of whether Mr. Savitz’s evidence satisfies the common law mailbox rule and thus creates a presumption that his notice of disagreement was rece ived by the VA in 1946, we reverse the decision of the Veterans C ourt and remand for further proceedings under the proper standard. Because app lication of the mailbox rule will likely require a factual determination as to the evidence of mailing in 1946, the Veterans Court may find it necessary to remand to the Board for new fact ual findings as to whether Mr. Savitz has made a sufficient showing to be entitled to t he benefit of the common law mailbox rule. Although Mr. Savitz has requested that we make an independent determination that his evidence is sufficient to create a presumption of receipt under the mail box rule, that is a factual determination that is not within our jurisdiction to make. REVERSED and REMANDED

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