Kimera Y. Harbin v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.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 D OUGLAS K INMAN, Alexander, Webb, and
Kinman, Mason, OH, for claimant-appellant.
ALISON VICKS , Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY , J R.;
CHRISTOPHER O. ADELOYE, Y. K EN L EE , Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
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HARBIN v. MCDONOUGH 2
______________________
Before D YK, SCHALL , and T ARANTO, Circuit Judges.
SCHALL , Circuit Judge.
Kimera Y. Harbin appeals the February 25, 2021 deci-
sion 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 deci-
sion 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. Har-
bin’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 Jan-
uary 1969 to January 1971 and who earned a Purple Heart
for his service. App. 1. On November 29, 2012, Mrs. Har-
bin filed a claim for survivor death benefits with the De-
partment 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 rec-
ord did not establish an etiological link between Mr. Har-
bin’s cause of death and his active duty service. App. 28.
On November 18, 2013, the RO issued another rating deci-
sion 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 accompa-
nying 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 be-
cause 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 acknowl-
edged 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 representa-
tive submitted a statement “conced[ing] that her substan-
tive 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 un-
timely. App. 102. The Board considered the postmark rule,
which states, in relevant part, that responses that are post-
marked prior to a filing time limit will be accepted as
timely, but that if the postmark is not of record, the post-
mark 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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HARBIN v. MCDONOUGH 4
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 repre-
sentative 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 pre-
sent 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 be-
cause it failed to apply the postmark rule or provide an ad-
equate statement of reasons or bases for why the rule
should not apply. App. 3. Mrs. Harbin argued that, be-
cause her Form 9 was not postmarked, application of the
postmark rule would require a presumption that it was re-
ceived 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 Feb-
ruary 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 de-
clined to address Mrs. Harbin’s argument that the post-
mark presumption is irrebuttable because she had not
included it in her opening brief. Id. In sum, having con-
cluded that the Board’s factual determination that Mrs.
Harbin’s appeal was not timely filed was not clearly erro-
neous, the Veterans Court affirmed the Board’s decision.
Id.
D ISCUSSION
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, in-
cluding 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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HARBIN v. MCDONOUGH 6
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 excep-
tions,” 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 deter-
mination 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 pre-
sumption had been rebutted, which the Veterans Court
held was not clearly erroneous, that determination is a fac-
tual 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 dis-
missed.
DISMISSED
COSTS
No costs.
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