Christopher L. Cones v. Robert Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

CHRISTOPHER L. CONES,
Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________

2019-2209
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-5283, Judge Joseph L. Toth.
______________________

Decided: September 2, 2020
______________________

Z
ACHARY STOLZ, Chisholm Chisholm & Kilpatrick,
Providence, RI, for claimant-appellant. Also represented
by APRIL DONAHOWER, AMY F. ODOM.

SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by ETHAN
P. DAVIS, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN,
JR.; MEGHAN ALPHONSO, BRIAN D. GRIFFIN, Office of
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CONES v. WILKIE

2
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________

Before DYK, O’MALLEY, and REYNA, Circuit Judges.
DYK, Circuit Judge.
Christopher Cones appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) dismissing his appeal as untimely. We affirm.
BACKGROUND
Mr. Cones served in the Army from March to May
1992. In November 2016, the Board of Veterans’ Appeals
(“Board”) awarded Mr. Cones benefits under Diagnostic
Code 5201 for a right shoulder disability but, in a decision
dated March 5, 2018, denied Mr. Cones’ claim to a separate
disability rating under Diagnostic Code 5202.
1
Diagnostic
Code 5201 relates to limitation in the motion of an arm,
whereas Diagnostic Code 5202 relates to other impairment
of the humerus. 38 C.F.R. § 4.71a.
On September 24, 2018, 203 days after March 5,
Mr. Cones filed a notice of appeal to the Veterans Court.
On November 20, 2018, the Department of Veterans Af-
fairs (“VA”) moved to dismiss Mr. Cones’ appeal as un-
timely under 38 U.S.C. § 7266(a). Section 7266(a) provides
that a notice of appeal must be filed “within 120 days after
the date on which notice of the [Board] decision is mailed
pursuant to section 7104(e) of this title.” 38 U.S.C.
§ 7266(a). Section 7104(e) provides that “after reaching a

1
Mr. Cones also sought special monthly compensa-
tion (“SMC”) for his right shoulder injury. The Board re-
manded to the VA Regional Office for consideration of
whether Mr. Cones is entitled to SMC. Mr. Cones’ SMC
claim is not at issue in this appeal.
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CONES v. WILKIE

3
decision on a case, the Board shall promptly mail a copy of
its written decision to the claimant” and also “send a
copy . . . to the [claimant’s] authorized representative.” Id.
§ 7104(e)(1)–(2).
Mr. Cones opposed the motion, arguing that the Board
did not promptly mail the March 5 decision to him as re-
quired by section 7104(e). Mr. Cones asserted that he
never received the Board’s decision in the mail, nor was the
decision posted electronically to the Veterans Benefits
Management System when Mr. Cones’ representative
checked the system on March 6. Mr. Cones contends that
he only learned of the Board’s decision on September 5,
when his representative called the VA to inquire about the
status of his appeal, and the Board informed him that his
appeal had been decided. As further evidence of purported
irregularity in the Board’s handling of the case, Mr. Cones
noted that the cover letter to the Board decision was dated
March 2, 2018, while the decision itself was dated March 5,
2018. To Mr. Cones, the period for appeal started on Sep-
tember 5 when the Board notified him of its decision, and
so his appeal on September 24 was timely.
The Veterans Court granted the VA’s motion to dis-
miss. The court found that the Board decision was in fact
mailed on March 5, 2018, in compliance with section
7104(e). In reaching that conclusion, the Veterans Court
noted the presumption of regularity of mailing. Under that
presumption, the Board “is presumed to have properly
mailed a copy of its decision to the last known address of a
claimant and his representatives, if any, on the date that
the decision was issued.” J.A. 1 (citing Hampton v. Nichol-
son, 20 Vet. App. 459, 460–61 (2006)) “The presumption
may be rebutted with clear evidence that the Board’s regu-
lar mailing practices were not regular or were not fol-
lowed.” Id. “When the Board’s regular mailing practices
are shown to be irregular, the burden shifts to the [VA] to
demonstrate by a preponderance of the evidence a proper
mailing or actual receipt of the Board decision . . . .” Id.
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Applying this framework, the Veterans Court concluded
that even if the evidence on which Mr. Cones relied consti-
tuted sufficient evidence to overcome the presumption, the
VA had met its burden to show that the decision was
mailed on March 5, 2018. Specifically, the Veterans Court
reasoned:
[A] preponderance of the evidence adduced by the
[VA] demonstrates that the decision was properly
mailed. Specifically, the [VA] provided (1) a signed
and dated copy of the original Board decision; (2) a
sworn affidavit from the Deputy Vice Chairman of
the Board that the decision was mailed to
Mr. Cones and his counsel at the proper address on
the date of decision; and (3) computer screenshots
of the Board’s electronic tracking system, which in-
dicated that the Board’s decision was issued on
March 5. This evidence is highly probative of an
actual mailing and preponderates over the evi-
dence presented by the veteran . . . .
J.A. 2.
Finding that the Board decision was properly mailed
on March 5, 2018, the Board concluded that Mr. Cones’ no-
tice of appeal on September 24 was untimely. Mr. Cones
appeals.
D
ISCUSSION
We have limited jurisdiction to review decisions by the
Veterans Court. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We have exclusive jurisdiction to review
and decide any challenge to the validity of any statute or
regulation or any interpretation thereof and to interpret
constitutional and statutory provisions, to the extent pre-
sented and necessary to a decision. 38 U.S.C. § 7292(c).
Except to the extent that an appeal presents a constitu-
tional issue, we may not review a challenge to a factual
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CONES v. WILKIE

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determination or a challenge to a law or regulation as ap-
plied to the facts of a particular case. Id. § 7292(d)(2).
Mr. Cones argues on appeal that the Veterans Court
misinterpreted 38 U.S.C. § 7104(e) and the presumption of
regularity. Mr. Cones asserts that because the Veterans
Court assumed that the presumption of regularity was re-
butted by Mr. Cones, the “VA was required to present di-
rect evidence of . . . ‘mailing’ as that term is used in 38
U.S.C. § 7104(e).” Appellant’s Br. 9, 11. Specifically,
Mr. Cones contends that the “VA was required to present
evidence that [a] designated [Board] employee delivered
the decision to the [VA Central Office] mail room, which in
turn delivered it to the U.S. Postal Service.” Appellant’s
Br. 12 To Mr. Cones, the evidence on which the Veterans
Court relied was legally insufficient because it “simply de-
scribed the Board’s mailing procedures.” Appellant’s Br.
10–11.
We reject Mr. Cones’ argument that if the presumption
of regularity is rebutted, the VA is required to provide “di-
rect” evidence of mailing. It is well established that cir-
cumstantial evidence (here, evidence of the VA’s mailing
procedures) can be sufficient to prove a fact; direct evidence
is not necessary. See, e.g., United States v. C.H. Robinson
Co., 760 F.3d 1376, 1382 (Fed. Cir. 2014); Lucent Techs.,
Inc. v. Gateway, Inc., 580 F.3d 1301, 1318 (Fed. Cir. 2009);
Moleculon Rsch. Corp. v. CBS, Inc., 793 F.2d 1261, 1272
(Fed. Cir. 1986). All other conclusions Mr. Cones chal-
lenges on appeal are factual and outside the scope of our
jurisdiction.
AFFIRMED
C
OSTS
No costs.
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