Anania v. McDonough, No. 20-1086 (Fed. Cir. 2021)Annotate this Case
Anania served in the Army, 1972-1975. In 2008, Anania sought an increased evaluation for the degenerative joint disease of his spine and major depressive disorder, and entitlement to a total disability rating based on individual unemployability. The VA issued a rating decision. Anania filed a Notice of Disagreement. In December 2009, the VA denied Anania’s request, describing the process for appeal. Anania had until March 3, 2010—one year after the date of mailing of the notification of the VA’s decision—to file a substantive appeal with the Waco Regional Office. In June 2012, Anania’s counsel, Carpenter, sent a letter to the Board of Veterans’ Appeals requesting confirmation that it had docketed Anania’s substantive appeal of the rating decision.
The Board concluded that Anania failed to timely file his substantive appeal, which “was not received into VA custody until June 29, 2012.” Anania urged the Board to find his appeal timely filed under the common law mailbox rule, submitting a signed affidavit from Carpenter, alleging that Carpenter had personally mailed the substantive appeal on January 18, 2010. On remand, the Board again determined that Anania’s appeal was not timely filed, stating that the mailbox rule’s presumption of receipt did not attach because Carpenter’s affidavit was “no more than self-serving testimony.” The Veterans Court affirmed. The Federal Circuit reversed. A party’s affidavit may provide credible evidence to satisfy the mailbox rule, and the government did not challenge the credibility of Carpenter affidavit.