Echevarria-North v. Dept. Of Veterans Affairs , 437 F. App'x 941 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
FRANCESCA ECHEVARRIA-NORTH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7115
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-3172, Judge William A.
Moorman.
_________________________
Decided: September 13, 2011
_________________________
FRANCESCA ECHEVARRIA-NORTH, of Milford, Pennsyl-
vania, pro se.
P. DAVIS OLIVER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee. On
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and TODD M. HUGHES,
ECHEVARRIA-NORTH v. DVA 2
Deputy Director. Of counsel on the brief was MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel.
__________________________
Before RADER, Chief Judge, O’MALLEY, and REYNA,
Circuit Judges.
PER CURIAM.
This is a veteran’s benefits case in which Francesca
Echevarria-North, proceeding pro se, seeks an earlier
effective date for her award of service-connected benefits
for bronchial asthma. The Board of Veterans Appeals
(“Board”) denied her request, and the United States Court
of Appeals for Veterans Claims (“Veterans Court”) af-
firmed the Board’s denial. Because the Veterans Court
did not err in finding that Ms. Echevarria-North failed to
demonstrate entitlement to an earlier effective date, we
affirm.
BACKGROUND
Ms. Echevarria-North served in the United States Air
Force from 1971 until 1979. On February 7, 2005, a VA
regional office (“RO”) received a cover letter and copies of
a VA Form 21-4138 completed by a representative of the
New Jersey Department of Military and Veterans Affairs
(the “New Jersey DMVA”) on behalf of Ms. Echevarria-
North. The handwriting on the form read: “I am inquir-
ing as to the status of a veteran’s compensation claim that
was filed with your office on 11/17/1999, for Upper Respi-
ratory Infection Residual of Viral Syndrome
Chronic/Bronchitis/Asthma.” Respondent’s Appendix
(“RA”) 16. The statement also said that “[t]his claim was
stamped in at the Newark liaison [sic] office on
11/16/199[9]. Numerous inquiries inquiries [sic] have
been made to your office via the Newark Liasion [sic]
office to no avail (see attached cover letter).” Id. The
3 ECHEVARRIA-NORTH v. DVA
form is dated January 24, 2005, and it bears a signature
that appears to read Edna H. Jones, “Veterans Services
Officer,” followed by a stamp with the address of the New
Jersey DMVA. Id. The signature is directly below a
printed line stating that “I CERTIFY THAT the state-
ments on this form are true and correct to the best of my
knowledge and belief.” Id.
In 2006, the RO granted Ms. Echevarria-North ser-
vice-connected benefits for bronchial asthma at a disabil-
ity rate of 30%, effective February 7, 2005. Ms.
Echevarria-North appealed the RO’s decision asserting
that her effective date should be November 17, 1999,
which is the date she contends she first filed her claim. In
support of her assertion, Ms. Echevarria-North submitted
a letter, dated November 17, 1999, from the New Jersey
DMVA addressed to the U.S. Department of Veterans
Affairs Regional Office in Newark, New Jersey. The letter
indicates that certain VA forms are enclosed and includes
the following text in bold and underlined: “NEW
VETERAN’S COMPENSATION CLAIM FOR UPPER
RESPIRATORY INFECTION RESIDUAL OF VIRAL
SYNDROME/CHRONIC BRONCHITIS/ASTHMA.” Id.
Below the date of the letter is a date stamp of “NOV 19
1999.” Id. The letter is signed by “Edna H. Jones, Veter-
ans Service Officer, Hudson County District.” Id.
The Board denied Ms. Echevarria-North’s request for
an earlier effective date, finding that “there is no evidence
showing VA received a claim, formal or informal, for
service connection for bronchial asthma prior to February
7, 2005,” including no evidence that it received the No-
vember 17, 1999 New Jersey DMVA letter. RA 15.
Although the letter had a date stamp of “NOV 19 1999,”
the Board compared the date stamp on that letter to the
date stamp used by the RO in Newark and concluded that
ECHEVARRIA-NORTH v. DVA 4
the stamp on the letter was not an RO date stamp. 1
Accordingly, the stamp was not evidence that the RO
received the letter.
Ms. Echevarria-North appealed the Board’s decision
to the Veterans Court, arguing, among others, that the
Board: (1) failed to apply the presumption of regularity to
the New Jersey DMVA, contending that there is a pre-
sumption that the New Jersey DMVA mailed the Novem-
ber 17, 1999 letter as part of its regular course of
business; and (2) lacked a plausible basis for determining
that certain informal communications did not constitute
informal claims. As to the first argument, the Veterans
Court found that, even if the presumption of regularity
applied to the New Jersey DMVA, it would not affect the
Board’s conclusion that the RO never received the letter.
The court described the issue as whether the presumption
of receipt under the common law mailbox rule can be
invoked in this case. It concluded that the presumption of
receipt could not be invoked, “[g]iven the Board’s thor-
ough discussion of the evidence, the parties’ arguments,
and review of the record before the Court.” Echevarria-
North v. Shinseki, No. 08-3172, 2011 WL 195531 *2 (Vet.
App. Jan. 21, 2011) (hereinafter, the “Veterans Court
Decision”).
The Veterans Court rejected Ms. Echavarria-North’s
second argument for the same reason: because there is no
evidence that the RO received her informal communica-
tions, the presumption of regularity would not affect the
outcome of this case. In addition, the Veterans Court
noted that the presumption of regularity applies to the
RO, and in this case there is a presumption that the RO,
1 The Board believed that the date stamp was from
the New Jersey DMVA liaison office indicating receipt of
the letter from the New Jersey DMVA’s Jersey City office.
5 ECHEVARRIA-NORTH v. DVA
acting in the regular course of business and following
regular processes, would have placed the communications
at issue in a claims file if it actually received them. Ms.
Echevarria-North timely appealed to this court.
DISCUSSION
Our review of Veterans Court decisions is limited by
statute. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” Unless the appeal presents a constitutional
issue, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2). We review legal determinations by the
Veterans Court under a de novo standard. See Arzio v.
Shinseki, 602 F.3d 1343, 1345 (Fed. Cir. 2010).
On appeal, Ms. Echevarria-North raises three issues,
arguing that: (1) the Veterans Court failed to give the
New Jersey DMVA the presumption of regularity that the
VA enjoys; (2) the numerous inquiries about her claim,
combined with the presumption of regularity for the New
Jersey DMVA, should have been sufficient to confer an
earlier effective date; and (3) the Veterans Court applied
the wrong law because a case it cited, Fithian v. Shinseki,
24 Vet. App. 146 (2010), post-dates the Board decision. In
response, the government argues that this court lacks
jurisdiction because the appeal requires us to apply the
law to the facts of this case. For the reasons stated below,
although Ms. Echevarria-North presents some issues
within our jurisdiction, we find that they are without
merit.
As a starting point, the governing statute provides
ECHEVARRIA-NORTH v. DVA 6
that “the effective date of an award based on an original
claim . . . of compensation . . . shall not be earlier than the
date of receipt of application therefor.” 38 U.S.C.
§ 5110(a). For disability compensation for direct service
connection, unless the claim is received within one year of
the veteran’s discharge, the effective date is the “date of
receipt of claim, or date entitlement arose, whichever is
later.” 38 C.F.R. § 3.400(b)(2)(i). The Board’s determina-
tion of an effective date is a finding of fact that the Veter-
ans Court reviews for clear error, and it is a factual
determination that is unreviewable by this court. Butler
v. Shinseki, 603 F.3d 922, 926 (Fed. Cir. 2010); Evans v.
West, 12 Vet. App. 396, 401 (1999).
Ms. Echevarria-North’s arguments relating to her ef-
fective date, and the Veterans Court’s decision, turn on
two related evidentiary presumptions: the presumption of
regularity and the presumption of receipt pursuant to the
mailbox rule. “The presumption of regularity provides
that, in the absence of clear evidence to the contrary, the
court will presume that public officers have properly
discharged their official duties.” Miley v. Principi, 366
F.3d 1343, 1347 (Fed. Cir. 2004) (citing Butler v. Principi,
244 F.3d 1337, 1339 (Fed. Cir. 2001)). “The doctrine thus
allows courts to presume that what appears regular is
regular, the burden shifting to the attacker to show the
contrary.” Butler, 244 F.3d at 1340 (citations omitted).
The presumption of receipt derives from the common
law mailbox rule. Under the mailbox rule, “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 v. Nicholson, 490 F.3d 928, 930–31 (Fed.
Cir. 2007) (quoting Rosenthal v. Walker, 111 U.S. 185, 193
7 ECHEVARRIA-NORTH v. DVA
(1884)). This rule creates a rebuttable presumption of
fact that the letter was received. Rios, 490 F.3d at 932–33
(citing Rosenthal, 111 U.S. at 193). The mailbox rule
itself derives from the presumption of regularity because
it is premised on the notion that “[p]ostal employees are
presumed to discharge their duties in a proper manner.”
Charlson Realty Co. v. United States, 384 F.2d 434, 442
(Ct. Cl. 1967).
In this case, the Veterans Court explained that, as it
relates to the VA, “it is presumed that VA, acting in its
regular course of business and following its regular proc-
esses, would have placed such correspondence [from Ms.
Echevarria-North] in her claims file and acted on it in
some way – if it had actually received it.” Veterans Court
Decision, at *3 (citing Fithian v. Shinseki, 24 Vet. App.
146, 151 (2010)). Ms. Echevarria-North does not chal-
lenge the application of the presumption of regularity to
the VA. Rather, she argues that the New Jersey DMVA,
as a public agency, should be given the same presumption
of regularity as it relates to mailing – i.e., a presumption
that a dated letter bearing the New Jersey DMVA letter-
head was actually sent, and that it was sent on the date
indicated. In other words, she effectively argues for a rule
of law that the presumption of regularity should serve
automatically, and without more, to trigger the presump-
tion of receipt by the VA when there is evidence of a dated
letter from a public agency (here, the New Jersey DMVA
letter). Because this argument involves an interpretation
of a rule of law, we have jurisdiction to resolve this issue.
We cannot agree, however, with Ms. Echevarria-North’s
position.
The presumption of regularity does not attach to
every action taken by a public agency, only to those
actions that, for example, are part of the agency’s “official
duties” or “known course of business,” or that constitute
ECHEVARRIA-NORTH v. DVA 8
“ministerial steps.” See Rios, 490 F.3d at 930-31 (refer-
ring to the “known course of business” of the post office);
Miley, 366 F.3d at 1347 (referring to the presumption of
regularity being used to establish that “certain ministe-
rial steps were taken”). The question of whether the New
Jersey DMVA normally sends this type of correspondence
as a matter of its regular business or as a ministerial
action requires background evidence, such as whether a
letter sent to a liaison office automatically is forwarded to
the federal VA, whether this letter simply was a draft or
whether it was final, the file in which this letter was
found (e.g., a claims file that would contain all sent corre-
spondence), and the like. See, e.g., Miley, 366 F.3d at
1347 (presumption of regularity properly applied to
support that the Board mailed a notice of decision, based
on factual findings about the Board’s administrative
practice at the time and that the notice was designated to
be mailed with other documents that were in fact mailed).
Whether specific evidence of an agency’s normal course of
business is sufficient to trigger the presumption of regu-
larity is a factual determination beyond our jurisdiction.
We decide, however, that, unless it is clear or undisputed
that a certain duty is within an agency’s regular course of
business or simply a ministerial action, the presumption
of regularity requires at least some evidence of the
agency’s regular course of business to support its invoca-
tion. Accordingly, we do not adopt the rule of law that
Ms. Echevarria-North urges.
To the extent Ms. Echevarria-North argues that the
evidence in her case otherwise is sufficient to invoke the
presumption of receipt, she raises a question of fact, or an
application of law to fact, that is beyond our jurisdiction.
See Savitz v. Peake, 519 F.3d 1312, 1316 (Fed. Cir. 2008)
(“Although Mr. Savitz has requested that we make an
independent determination that his evidence is sufficient
9 ECHEVARRIA-NORTH v. DVA
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 in this case
expressly determined that the record did not support
invocation of the presumption of receipt. Veterans Court
Decision, at *2 (“Given the Board's thorough discussion of
the evidence, the parties' arguments, and review of the
record before the Court, the Court concludes that the
presumption of receipt cannot be invoked in this case.”).
Although the Veterans Court’s discussion perhaps could
have been more thorough, 2 its ultimate conclusion is not
within our jurisdiction to review. 3 See Savitz, 519 F.3d at
1316.
Finally, we reject Ms. Echevarria-North’s assertion
that the Veterans Court erred when it cited Fithian v.
Shinseki, 24 Vet. App. 146 (2010), a case that post-dates
the Board’s decision. We treat this assertion as an argu-
ment that the Veterans Court improperly applied a point
of law retroactively, but we find that this argument is
without merit. The Fithian case only discusses the well-
established presumption of regularity and relies on cases
that pre-date the Board’s decision for the law it applies,
such as Marsh v. Nicholson, 19 Vet. App. 381, 285 (2005),
and Rios v. Mansfield, 21 Vet. App. 481, 482 (2007).
2 For example, the court expressly could have con-
sidered that the same New Jersey DMVA representative
appears to have signed both the 1999 letter and the 2005
statement certifying that the 1999 letter was filed, and
that the New Jersey DMVA apparently submitted multi-
ple status inquires.
3 To the extent Ms. Echevarria-North contends that
the “numerous inquiries” about her 1999 letter constitute
an informal claim, that is a factual determination beyond
our jurisdiction. See Moody v. Principi, 360 F.3d 1306,
1310 (Fed. Cir. 2004). In addition, we note that none of
these inquiries appears in the record before this court.
ECHEVARRIA-NORTH v. DVA 10
Thus, the Veterans Court did not error when it cited that
case.
CONCLUSION
For the reasons stated above, the decision of the Vet-
erans Court is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED