NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

HAROLD D. SAVITZ, 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

__________________________ 

2011-7174 

__________________________ 

Appeal from the United States Court of Appeals for Veterans Claims in Case No. 09-3842, Judge Alan G. Lance, Sr. 

___________________________ 

Decided: February 21, 2012 

___________________________ 

HAROLD D. SAVITZ, of Highland Park, Illinois, pro se. 

DANIEL RABINOWITZ, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent-appellee. With 

him on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and MARTIN F.

HOCKEY, Assistant Director. Of counsel on the brief were 
SAVITZ v. DVA 2

DAVID J. BARRANS, Deputy Assistant General Counsel, and 

AMANDA R. BLACKMON, Attorney, United States Veterans 

Affairs, of Washington, DC. 

__________________________ 

Before RADER, Chief Judge, NEWMAN AND PROST, Circuit 

Judges. 

NEWMAN, Circuit Judge. 

Mr. Harold D. Savitz appeals from the decision of the 

United States Court of Appeals for Veterans Claims (the 

Veterans Court)1 affirming the decision of the Board of 

Veterans’ Appeals denying his request for an effective date 

earlier than August 7, 1992 for service connection for residuals of frozen feet with nerve damage suffered as a 

prisoner of war in World War II. We conclude that the 

Veterans Court correctly interpreted the common law 

mailbox rule, as a matter of law. Findings of fact and the 

application of law to fact cannot be appealed to this court. 

Thus the decision of the Veterans Court must be affirmed. 

BACKGROUND

Mr. Savitz served on active duty in the United States 

Army, and during the winter of 1944-45 he was confined in 

a German P.O.W. camp. Upon release from the Army 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 the claim, informing him of his right to appeal the 

decision to the Board of Veterans Appeals within one year. 

Mr. Savitz states that in July 1946 he sent a letter indicating disagreement and intent to appeal that decision. The VA 

 1 Savitz v. Shinseki, No. 09-3842 (Vet. App. Apr. 20, 

2011). 
3 SAVITZ v. DVA

has no record of receiving such a letter. Over the course of 

the next forty-six years, Mr. Savitz had contacts with various components of the VA on matters unrelated to his claim 

for injury due to frozen feet, although he states that there 

were continuing disabling effects. 

On August 7, 1992 Mr. Savitz asked to reopen the claim 

for service connection for residuals of frozen feet and possible peripheral neuropathy. The VA granted service connection in April 1993 and assigned an effective date of August 

7, 1992. In 1996 Mr. Savitz requested an earlier effective 

date. He stated that he had sent a timely letter to the VA in 

July 1946, seeking to appeal the April 30, 1946 decision. He 

states that this 1946 letter served as a Notice of Disagreement with the 1946 decision and that the 1946 decision 

therefore never became final. The Regional Office denied 

the claim in 1997. Following a series of appeals and remands, in 2005 the Board of Veterans Appeals denied Mr. 

Savitz’s request for an earlier effective date. The Veterans 

Court affirmed that decision in 2007. This Court remanded, 

stating: 

Because neither the Board nor the Veterans 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 received by the VA in 1946, we reverse the decision of the Veterans Court and 

remand for further proceedings under the proper 

standard. Because application 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 factual findings as to whether Mr. Savitz has 

made a sufficient showing to be entitled to the benefit of the common law mailbox rule. 
SAVITZ v. DVA 4

Savitz v. Peake, 519 F.3d 1312, 1315-16 (Fed. Cir. 2008). On 

further remand from the Veterans Court in 2009, the Board 

of Veterans Appeals recognized that: 

[T]he Federal Circuit determined that the common 

law “mailbox rule” would be applicable to this case if 

the Veteran could prove that he deposited the notice 

of disagreement into an authorized mailbox or otherwise placed it into the hands of U.S. Postal Service officials. In essence, if he could establish that 

he mailed the document, it would be presumed that 

such document was received by VA shortly thereafter. 

Savitz, No. 98-00 121, op. at 10 (Bd. Vet. App. July 2, 2009). 

 The Board reviewed the evidence of Mr. Savitz’ actions 

after the April 1946 rating decision, and summarized that 

the evidence supporting the Veteran included his own 

testimony that he had sent a timely letter to the VA seeking 

to appeal, and two typed draft letters. One of the drafts is 

unsigned and undated and discusses the substance of his 

appeal. The other draft is dated July 8, 1946, but is unsigned and cuts off after three lines. Mr. Savitz also submitted a copy of a letter dated May 9, 1946 from a fellow 

prisoner of war, Fred Raiford, to Mr. Savitz, and an accompanying envelope with a 1946 postmark. Mr. Raiford stated 

in the letter that he exchanged shoes with Mr. Savitz while 

they were prisoners of war in order to accommodate Mr. 

Savitz’s swollen frozen feet. 

The Board found that these documents “appear authentic in so far as they appear to have, in fact, been created by 

the Veteran in 1946 with at least the initial intent of appealing the 1946 rating decision,” but that “accepting that 

such documents are authentic does not automatically estab-
5 SAVITZ v. DVA

lish that they were actually mailed at that time to the RO. 

While the Veteran has asserted that was the case, the Board 

notes that there is substantial reason to doubt his credibility on that fact.” The Board noted the forty-six year lapse 

until the Veteran followed up in 1992. The Veteran stated 

that he “just never got around to following up until 1992,” 

but the Board found that “such an assertion is simply not 

credible in light of the fact that he pursued several other 

claims between 1948 and 1952, both to the RO and on 

appeal to the Board.” The Board observed that the Veteran 

testified at personal hearings at both the RO and the Board, 

and at no time during the pursuit of any of these other 

claims did he state that he had an appeal pending for frozen 

feet. The Board also observed that when the veteran sought 

to reopen this claim in 1992, he did not state that he had 

appealed the 1946 denial. The Board concluded that the 

Veteran did not mail the 1946 draft letter or otherwise place 

it into the hands of the Postal Service within one year of the 

1946 decision. 

The Veterans Court affirmed the Board’s decision. The 

Veterans Court explained that the Board made a factual 

determination that the appellant had not mailed a timely 

letter disagreeing with the Board’s 1946 decision, and that 

the Board’s finding was not clearly erroneous: 

 While the appellant has some documentation that 

supports the inference that he considered appealing the 1946 RO decision, none of the evidence directly corroborates the appellant’s assertion that 

he actually mailed a timely NOD. Furthermore, 

the Board was not unreasonable in concluding that 

if the appellant had actually mailed his NOD in 

1946, then he would have raised the issue of the 

status of his appeal at some point in the correspon-
SAVITZ v. DVA 6

dence on the other claims he pursued over the next 

several years. 

Savitz, No. 09-3842, op. at 2. Mr. Savitz again appeals to 

this court, arguing that the Veterans Court, in affirming the 

decision of the Board, misinterpreted the common law 

mailbox rule as a matter of law. 

DISCUSSION

On appeal from the Veterans Court, we give plenary review to questions of law, but absent a constitutional issue, 

we have no authority to review factual determinations or 

challenges to the application of a law or regulation to facts. 

38 U.S.C. §7292. 

In Rios v. Nicholson, 490 F.3d 928 (Fed. Cir. 2007), this 

court held that “if a letter properly directed is proven 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.” Id. at 931 (quoting Rosenthal v. Walker, 

111 U.S. 185, 193 (1884)). The court explained that the 

common law mailbox rule “only comes into play . . . when 

the Veterans Court alleges that it never received the petitioner’s NOA [Notice of Appeal]. In such a scenario, the 

common law mailbox rule may be utilized by the petitioner 

to presume receipt upon a showing that he placed a properly 

addressed and stamped NOA in the USPS within sufficient 

time for it to have been received by the Court within the . . . 

filing period.” Id. at 932. 

Upon this court’s remand for consideration of the presumption of the common law mailbox rule, Savitz v. Peake, 

519 F.3d at 1315-16, and the Veterans Court’s further 
7 SAVITZ v. DVA

remand to the Board, the Board found that Mr. Savitz did 

not write to the VA within one year after the April 1946 

decision. The Veterans Court affirmed this finding. Although Mr. Savitz states that the Board and in turn the 

Veterans Court erred in their weighing of the evidence, we 

do not have jurisdiction to review this factual determination. See 38 U.S.C. §7292(d)(2); Savitz v. Peake, 519 F.3d at 

1316 (“Although Mr. Savitz has requested that we make an 

independent determination that his evidence is sufficient to 

create a presumption of receipt under the mailbox rule, that 

is a factual determination that is not within our jurisdiction 

to make.”). 

The Veterans Court and the Board fulfilled their obligations on remand. Applying the statutory standard of review, the decision of the Veterans Court is affirmed. 

Each party shall bear its costs. 

AFFIRMED