NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

KIMERA Y. HARBIN,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2021-2026

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 19-7386, Judge Michael P. Allen.

______________________ 

Decided: March 18, 2022

______________________ 

MAXWELL DOUGLAS KINMAN, Alexander, Webb, and 

Kinman, Mason, OH, for claimant-appellant. 

 ALISON VICKS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for respondent-appellee. Also represented by BRIAN M.

BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY, JR.; 

CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of General 

Counsel, United States Department of Veterans Affairs, 

Washington, DC. 

Case: 21-2026 Document: 44 Page: 1 Filed: 03/18/2022
2 HARBIN v. MCDONOUGH

 ______________________ 

Before DYK, SCHALL, and TARANTO, Circuit Judges.

SCHALL, Circuit Judge. 

Kimera Y. Harbin appeals the February 25, 2021 decision of the United States Court of Appeals for Veterans 

Claims (“Veterans Court”). Harbin v. McDonough, No. 19-

7386 (Vet. App. Feb. 25, 2021), App. 1–6. In that decision, 

the Veterans Court affirmed the September 18, 2019 decision of the Board of Veterans’ Appeals (“Board”), in which 

the Board ruled that Mrs. Harbin’s appeal of the denial of 

her claim for survivor death benefits was untimely. App. 

102. For the reasons set forth below, we dismiss Mrs. Harbin’s appeal for lack of jurisdiction. 

BACKGROUND

I.

Mrs. Harbin is the surviving spouse of veteran Donald 

R. Harbin, who served in the United States Army from January 1969 to January 1971 and who earned a Purple Heart 

for his service. App. 1. On November 29, 2012, Mrs. Harbin filed a claim for survivor death benefits with the Department of Veterans Affairs (“VA”) seeking to establish 

service connection for the cause of Mr. Harbin’s death. 

App. 14–26. In due course, the VA Regional Office (“RO”)

issued a rating decision denying her claim because the record did not establish an etiological link between Mr. Harbin’s cause of death and his active duty service. App. 28. 

On November 18, 2013, the RO issued another rating decision addressing additional evidence submitted by Mrs. 

Harbin but maintaining the denial of service connection. 

App. 36–37.

Mrs. Harbin then filed a notice of disagreement with 

the RO’s November 18, 2013 rating decision. App. 42. On 

December 2, 2015, the RO mailed Mrs. Harbin a Statement 

of the Case (“SOC”) confirming the denial of service 

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HARBIN v. MCDONOUGH 3

connection. App. 43–68. The SOC and the letter accompanying it advised Mrs. Harbin that she had 60 days to file a

substantive appeal with the RO. App. 43–44; App. 60. 

Mrs. Harbin subsequently filed an appeal on a VA Form 9, 

which she signed and dated February 6, 2016. App. 70.1 

The appeal was received by the VA on February 9, 2016. 

Id. 

On February 26, 2016, the RO sent Mrs. Harbin a letter 

advising her that her Form 9 submission was untimely because it was not submitted within the 60-day period. App. 

72. The letter noted that the SOC was mailed December 2, 

2015; therefore, Mrs. Harbin had until January 31, 2016, 

to file an appeal. Id. Mrs. Harbin filed a timely notice of 

disagreement with that decision, in which she acknowledged that her representative had “failed to submit [the 

Form 9] on time.” App. 76. Mrs. Harbin first requested, 

then later cancelled, a hearing request, and her representative submitted a statement “conced[ing] that her substantive appeal was a few days late” but requesting that the 

Board waive the timeliness requirement and accept her 

Form 9. App. 99–100.

On September 18, 2019, the Board issued its decision, 

in which it determined that Mrs. Harbin’s Form 9 was untimely. App. 102. The Board considered the postmark rule, 

which states, in relevant part, that responses that are postmarked prior to a filing time limit will be accepted as 

timely, but that if the postmark is not of record, the postmark date will be presumed to be five days prior to the date

the document was received by the VA, excluding weekends 

and holidays. App. 104; 38 C.F.R. § 20.305(a) (2015).2 

1 The copy of Mrs. Harbin’s VA Form 9 that is in the 

record is difficult to read but was either signed on February 

5 or February 6 of 2016. App. 70; App. 5 n.31.

2 The VA made significant revisions to title 38 of the 

Code of Federal Regulations to implement the Veterans

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4 HARBIN v. MCDONOUGH

Because the postmark on the envelope in which the VA RO 

sent Mrs. Harbin’s Form 9 to the Claims Intake Center and 

the date-stamped receipt on the Form 9 both indicated a 

date of February 9, 2016, the Board found that Mrs. Harbin 

could not benefit from the rule because February 9, 2016 

was nine days after the deadline, which the Board stated 

was February 2, 2016. App. 104; see J.A. 71. In addition, 

when considering Mrs. Harbin’s argument that her representative failed to submit the VA Form 9 on time, the 

Board observed that the date Mrs. Harbin signed the Form 

9, February 6, 2016, was after the 60-day deadline. Id. at 

104–05.3 After determining that there were no factors present that could excuse Mrs. Harbin’s untimely filing, the 

Board denied Mrs. Harbin’s appeal. Id. at 105–06.

II.

Mrs. Harbin appealed to the Veterans Court. Before 

the court, Mrs. Harbin argued that the Board erred because it failed to apply the postmark rule or provide an adequate statement of reasons or bases for why the rule 

should not apply. App. 3. Mrs. Harbin argued that, because her Form 9 was not postmarked, application of the 

postmark rule would require a presumption that it was received on February 2, 2016, which is the date the Board 

indicated was the end of the 60-day period. Id. at 2–3. 

Mrs. Harbin also argued that the Board erred when it 

Appeals Improvement and Modernization Act of 2017

(“AMA”), Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 

2017). See VA Claims and Appeals Modernization, 84 Fed. 

Reg. 138, 182 (Jan. 18, 2019) (redesignating pre-AMA 38 

C.F.R. § 20.305 as § 20.110). Since the pertinent events 

here took place before these changes were made, we refer 

to the pre-AMA version of the regulation.

3 As the Veterans Court observed, the signing date 

February 5, 2016, also would be after the 60-day deadline.

App. 5 n.31. 

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HARBIN v. MCDONOUGH 5

relied on the February 9, 2016 postmark, which was not 

related to the date she had mailed the Form 9 to VA but 

rather to the date the RO sent the Form 9 to the Claims 

Intake Center. Id. at 5. In her reply brief, Mrs. Harbin 

additionally argued that the presumption created by the 

postmark rule is not rebuttable. Id. 

The court rejected Mrs. Harbin’s arguments, finding 

that she had not rebutted evidence that her Form 9 could 

not have been postmarked February 2, 2016, because she 

signed the appeal on February 5 or 6, 2016, and because 

she had conceded twice to the VA that her Form 9 had been 

filed late. App. 4–5. Although the court agreed with Mrs. 

Harbin that the Board had erred when it relied on the February 9, 2016 postmark, the court ultimately determined 

that error was harmless, because the Board had relied on 

Mrs. Harbin’s signature date to support its finding that the 

Form 9 was untimely. Id. at 5. In addition, the court declined to address Mrs. Harbin’s argument that the postmark presumption is irrebuttable because she had not 

included it in her opening brief. Id. In sum, having concluded that the Board’s factual determination that Mrs. 

Harbin’s appeal was not timely filed was not clearly erroneous, the Veterans Court affirmed the Board’s decision. 

Id. 

DISCUSSION

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. 38 U.S.C. § 7292. We have 

jurisdiction to decide an appeal insofar as it presents a 

challenge to the court’s decision regarding a rule of law, including a decision about the interpretation or validity of 

any statute or regulation. Id. § 7292(a), (d)(1). However, 

we lack jurisdiction to entertain a challenge to a factual 

determination or a challenge to the application of a law or 

regulation to the facts of a particular case where, as here, 

the appeal presents no constitutional issue. Id.

§ 7292(d)(2).

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6 HARBIN v. MCDONOUGH

On appeal to this court, Mrs. Harbin argues that the 

Veterans Court and the Board failed to properly apply the 

postmark rule. That is, Mrs. Harbin argues, because 38 

C.F.R. § 20.305 is “clear” and “does not contain any exceptions,” the postmark rule must be followed “regardless of 

the signed date on the VA Form 9 or any concessions to the 

agency.” Appellant’s Br. 17. The Veterans Court’s determination that Mrs. Harbin’s argument is forfeited involves 

an application of a law or regulation to fact which is outside 

this court’s jurisdiction. 38 U.S.C. § 7292(d)(2). 

Moreover, to the extent Mrs. Harbin is disputing the 

underlying Board determination that the postmark presumption had been rebutted, which the Veterans Court 

held was not clearly erroneous, that determination is a factual one over which we also lack jurisdiction. Id.; cf.

Eskridge v. Shulkin, 691 F. App’x 623, 624 (“Whether an 

appeal is timely filed is a factual determination that this 

court may not review.”).

Accordingly, because Mrs. Harbin has not presented an 

issue over which we have jurisdiction, the appeal is dismissed.

DISMISSED

COSTS

No costs.

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