# Ashley v. Derwinski

Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc.

---

## Ashley v. Derwinski, 2 Vet. App. 62 (1992) {#6727596}

*2 Vet. App. 62*

_Ashley v. Derwinski, 2 Vet. App. 62, decided 1992-01-09._

FARLEY, Associate Judge, filed the opinion of the Court, in which MANKIN, Associate Judge, joined. IVERS, Associate Judge, filed a concurring opinion.

FARLEY, Associate Judge:
The Secretary of Veterans Affairs (Secretary or VA) moved to dismiss this appeal for lack of jurisdiction on the grounds that more than 120 days had elapsed between the date on which notice of the decision of the Board of Veterans’ Appeals (Board or BVA) was mailed to the veteran and the date on which the appellant filed a Notice of Appeal (NOA) with the Court. Appellant responded that the BVA failed to mail a copy of the decision to her authorized representative as required by 38 U.S.C. § 7104(e) (formerly § 4004(e)), thus tolling the 120-day time limit of 38 U.S.C. § 7266(a) (formerly § 4066(a)) for filing an appeal. We find that the BVA did fail to comply with § 7104(e) and that this failure was not cured, and the 120-day time limit did not begin to run, until appellant’s representative received notice of the decision on November 1, 1990. Consequently, appellant’s NOA, filed on March 1, 1991, is deemed to have been timely filed and the Court has jurisdiction over her appeal.

I. BACKGROUND

The National Veterans Legal Services Project (NVLSP) represented appellant before the Board and submitted a brief on her behalf. The Board issued an adverse decision on October 24, 1990. On March 1, 1991, 127 days after the date of the BVA decision, the NVLSP filed an NOA on appellant’s behalf. On April 3, 1991, the Court ordered appellant to show cause why the appeal should not be dismissed for lack of jurisdiction.

In response, appellant asserted that the BVA had failed to send notice of the decision to her authorized representative. Relying upon this Court’s decision in Chadwick v. Derwinski, 1 Vet.App. 74 (1990), appellant argued that, because the BVA did not comply with 38 U.S.C. § 7104(e), the 120-day period of 38 U.S.C. § 7266(a) (formerly § 4066(a)) was tolled. Appellant’s Response To Court Order Requiring Appellant to Show Cause (Appellant’s Response) at 1. Appellant submitted, inter alia, the declarations of Michael E. Wildhaber, Director of Intake and Agency Representation, NVLSP (Appellant’s Response, Ex. 1), and Roger Wedel, Staff Attorney, NVLSP (Appellant’s Response, Ex. 2), who stated that the NVLSP did not receive a copy of the October 24, 1990, decision from the BVA. A copy of the decision was forwarded by the appellant to a representative of the Commonwealth of Virginia Department of Veterans Affairs who, in turn, transmitted it to the NVLSP by letter dated October 31, 1990. Appellant’s Response, Ex. 5. It was received by the NVLSP on November 1, 1990. Appellant’s Response at 2.

On May 22, 1991, the Court ordered the Secretary to provide “dates on which the BVA decision of October 29, 1990 [sic], was mailed and the addressees and addresses to which that decision was mailed.” On June 11, 1991, the Secretary filed Appellee’s Response To The Court Order and Motion To Dismiss (Appellee’s Response) seeking dismissal under 38 U.S.C. § 7266(a) due to appellant’s failure to file within the 120-day limit. The Secretary argued that, because the claimant’s file does not reveal that any required procedures were not followed, this action is distinguishable from Chadwick and warrants dismissal. Appel-lee’s Response at 4-5. The Secretary also presented three alternative theories for the shifting of the onus of the untimely filing onto appellant: (1) appellant’s representa*64tive had “constructive notice” of the decision because appellant timely received her copy; (2) appellant breached an “obligation to advance a copy of it to her representative”; and (3) “appellant’s counsel [breached] a fiduciary duty to stay in touch with the appellant and instruct her to immediately notify her counsel when she received a copy of the BVA decision and to transfer such BVA decision to her counsel.” Appel-lee’s Response at 3-4.

Appellant opposed the Secretary’s motion to dismiss, arguing that the presumption that the Board followed its normal procedures was effectively rebutted by evidence proffered by appellant. Subsequently, appellant supplemented her response by letter dated July 25, 1991, which contained a citation to the recent order of this Court in Chute v. Derwinski, 1 Vet.App. 352 (1991).

We note the potential for some confusion as to whether the Vietnam Veterans of America (WA) or the NVLSP was the duly authorized representative of appellant before the Board. While the record contains an executed VA Form 21-22 designating the WA as appellant’s representative, it also contains a brief submitted to the Board on appellant’s behalf by the NVLSP and reflecting the mailing address of the NVLSP. Pursuant to 38 C.F.R. § 14.-631(c)(2), “an organization named in a power of attorney executed [on proper forms] ... may employ an attorney to represent a claimant in a particular claim” and appellant has indicated that the WA has a contractual relationship with the NVLSP under which the latter represents the clients of the former. See Appellant’s Response, Ex. 1 at paras. 1 and 2. However, there is no need to delve into the question of which organization was appellant’s authorized representative because the determinative issue is not whether the BVA decision was mailed to the correct representative, but whether the BVA decision was mailed to any representative.

II. ANALYSIS

It is a matter of statute that:

[i]n order to obtain review by the Court ... of a final decision of the [BVA], the person adversely affected by the action must file a notice of appeal with the Court. Any such notice must be filed within 120 days after the date on which notice of the decision is mailed pursuant to section [7104(e)] of this title.

38 U.S.C. § 7266(a) (1991). This 120-day period cannot be extended. Machado v. Derwinski, 928 F.2d 389, 391 (Fed.Cir.1991) (“Section [7266(a)] plainly makes compliance with the 120-day limit a prerequisite to Veterans Court review and does not authorize the court to extend the time.”). Section 7104(e) provides,

[a]fter reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant and the claimant’s authorized representative (if any) at the last known address of the claimant and at the last known address of such representative (if any).

This Court has held that “[u]nder the plain language of [7104(e) ], the written decision must be mailed to both the claimant and the claimant’s representative. The statute is written in the conjunctive, and a mailing made only to the claimant’s authorized representative violates this statutory requirement.” Chadwick, 1 Vet.App. at 76. It necessarily follows that a mailing made to the claimant but not to the claimant’s authorized representative also “violates this statutory requirement”. Id. In view of this statutory mandate and the clarity of the holding in Chadwick, the Secretary’s arguments based upon theories of constructive notice, appellant’s failure to send a copy of the decision to her representative, and the breach of a representative’s “fiduciary duty to stay in touch” (Appellee’s Response at 3-4) fall of their own weight and do not merit further discussion.

“The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926) (emphasis added); see also I.N.S. v. Miranda, 459 U.S. 14, 18, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982); Morris *65v. Sullivan, 897 F.2d 553, 560 (D.C.Cir.1990); Chute, 1 Vet.App. at 353. Here, this presumption of regularity supports the VA’s position that the date of mailing of a BYA decision is the date shown on the decision. See Sandine v. Derwinski, 1 Vet.App. 26 (1990) (Declaration of Dennis J. Kelley established that after August 31, 1990, the day of mailing of BVA decisions is the date shown on the decision as the date of the decision.); Rosler v. Derwinski, 1 Vet.App. 241 (1991). Therefore, in absence of “clear evidence to the contrary”, the BVA is presumed to have mailed the decision on October 24, 1990, the date of the decision, to both the claimant and her representative.

Appellant does not dispute the fact or the timing of the mailing of the decision to her. Rather, she argues that, as in Chadwick, “the 120-day filing period set forth in [§ 7266(a)] did not begin to run” (Chadwick, 1 Vet.App. at 76) on October 24, 1990, because the BVA failed to meet its statutory obligation to mail a copy of the decision to her representative, the NVLSP. The issue to be resolved, therefore, is whether and, if so, when the BVA decision was mailed to her representative. Since her NQA was filed 127 days after the date of the BVA decision, appellant, who has the ultimate burden of establishing jurisdiction (McNutt v. G.M.A.C., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), must demonstrate entitlement to a delay in the beginning of the running of the 120-day statutory period. In an effort to meet her burden, appellant offers evidence intended to prove two separate facts which appellant apparently believes to be of jurisdictional significance. We will treat each, separately, and, in so doing, we note as we did in Stokes v. Derwinski, 1 Vet.App. 201, 203 (1991), that appellate courts are permitted to resolve factual disputes when necessary to determine their jurisdiction.

A.

The first fact sought to be proved by the appellant is that her representative, the NVLSP, did not receive the October 24, 1990, BVA decision by mail from the BVA. The proof submitted to establish this fact consists of a number of declarations submitted by attorneys and employees of the NVLSP, each to the effect that the NVLSP did not receive the BVA decision until a copy sent to appellant was relayed to the NVLSP by a State Veterans Claims Agent and received on November 1, 1990. Appellant’s Response at 2, Exs. 1, 2 and 5.

Accepting as fact that the NVLSP did not receive the decision by mail from the BVA, the question becomes whether this fact of non-receipt, standing alone, is the type of “clear evidence to the contrary” which is sufficient to rebut the presumption that officials and employees of the BVA “properly discharged their official duties”. Chemical Foundation, 272 U.S. at 14-15, 47 S.Ct. at 6. We hold that it is not. Evidence that a BVA decision was not received is just that: evidence going to the question of receipt; it is not evidence going to the question of mailing. At most, evidence of non-receipt of a BVA decision, indeed the fact of non-receipt, arguably may raise an inference that the decision was not mailed but that is hardly the type of “clear evidence” which Chemical Foundation requires to rebut the presumption of regularity which “supports the official acts of public officers”. Evidence of non-receipt would be given different weight if Congress had chosen receipt rather than mailing by the BVA as the trigger for the start of the 120-day period within which to appeal to this Court. Indeed, the cases principally relied upon by appellant are “notice” cases, cases in which the time within which to appeal does not, as a matter of statute, begin to run until the individual personally receives notice. See, e.g., Dean v. United States, 10 Cl.Ct. 563, 571 (1986) (Appellant’s Opposition at 4); Kelly v. United States, 826 F.2d 1049 (Fed.Cir.1987) (Appellant’s Opposition at 5, 7). However, with full knowledge of the presumption of regularity, Congress chose to use the date of mailing in the ordinary sense, as indicated by the plain language of § 7266(a). Thus, it would be improper for this Court to hold that the 120-day period begins on the date a BVA decision is received by the claimant and the claimant’s *66authorized representative, if any. Nor would it be proper for this Court to change the trigger of § 7266 from “the date on which notice of the decision is mailed” to “the date on which the VA proves notice of the decision was mailed”.

B.

The second fact which appellant seeks to establish is that the BVA did not mail the October 24, 1990, decision to her representative. The evidentiary support for this fact also is contained in the various declarations and goes to the declarants’ experiences with VA practices and the contents of appellant’s claims file. Bert Boyd, after reciting that it is a part of his duties to review claims folders “on a daily basis”, stated that:

When decisions have been mailed to the claimant’s representative, a copy of the BVA decision containing the name and address of the representative is typed in the top right hand comer of the decision. On March 1, 1991, I reviewed the complete, original claims folder bearing the name of Phyllis D. Ashley, XSS 228 62 0654. Mrs. Ashley’s claims folder did not contain a copy of the BVA decision with the name and address of the claimant’s representative in the upper right hand corner. It did contain a copy of the BVA decision with no additional information on it.

Appellant’s Response, Ex. 3, para. 2. Mr. Boyd also declared that “there was no other evidence within Mrs. Ashley’s claims folder indicating that the decision had been mailed to her representative. The address of NVLSP, Mrs. Ashley’s representative was displayed prominently on the front page of the brief submitted on her behalf.” Id. Another declarant stated that the brief submitted by the NVLSP to the Board, with the address of the NVLSP address clearly visible, was contained in the claims file. Id. at Ex. 4.

The portions of the declarations submitted on behalf of the appellant which directly address VA practice and the contents of appellant’s claims file go to the heart of the question whether the BVA mailed the decision to her representative. The declarations are precisely the type of “clear evidence to the contrary” required by Chemical Foundation to rebut the presumption that officials and employees of the BVA “properly discharged their official duties”. While appellant continues to bear the ultimate burden of proving that this Court has jurisdiction, the evidentiary submission is more than sufficient to rebut the presumption of regularity and shift to the Secretary the burden of coming forward with evidence to establish that the BVA decision was mailed to appellant’s representative. “The presumption [of official regularity may also] operate[] in reverse. If it appears irregular, it is irregular, and the burden shifts to the proponent to show the contrary.” United States v. Roses, Inc., 706 F.2d 1563, 1567 (Fed.Cir.1983).

Since appellant here submitted evidence which was sufficient to rebut the presumption of regularity, the burden of coming forward with evidence demonstrating that the BVA mailed a copy of the decision to the NVLSP on October 24, 1990, was shifted to the Secretary. However, instead of shouldering this burden, the Secretary merely continued to rely upon the presumption of regularity:

[although the claim filed in the instant case does not specifically indicate the addresses to which the BVA decision was mailed, in the ordinary course of business BVA decisions are mailed, on the date of the decision, to claimants at their last known addresses and to their representatives of record ...

Appellee’s Response at 1. The Secretary only confirmed that “There is no record in the claims file of the addresses or addresses to which the aforementioned BVA decision was mailed.” Declaration of Peggy U. Hall at para. 2. It was also noted that the “claimant’s representative is the Vietnam Veterans of America”. Id. at para. 3. The VA attempted to negate the implications of the absence of any indication that the decision had been mailed to the NVLSP by arguing that it was not the practice of the BVA to record or indicate the addresses or recipients of a BVA decision. Appellee’s Response at 3. However, the Secretary did *67not submit any evidence to counter appellant’s declarations with respect to YA practices — specifically, the Boyd declaration: “[w]hen decisions have been mailed to the claimant’s representative, a copy of the BVA decision containing the name and address of the representative is typed in the top right hand corner of the decision[,]” nor did the Secretary establish that a copy of the decision was mailed to appellant’s representative.

Therefore, appellant has met the burden of proving that the BVA decision of October 24,1990, was not mailed by the BVA to appellant’s representative as required by 38 U.S.C. § 7104(e) and Chadwick. In Chute, the appellant provided evidence not only that the appellant did not receive the BVA decision but that, in addition, the claims file did not contain evidence of the decision having been mailed to the appellant’s then current address. 1 Vet.App. 352. When the VA failed to meet the burden of coming forward with evidence from the administrative record sufficient to demonstrate that the BVA decision had been mailed to the correct current address of the appellant, the Court held that the 120-day period of § 7266(a) was tolled by the VA’s failure to comply with § 7104(e), which requires the decision to be mailed to the claimant’s “last known address”, until the VA complied with the statute. Id. at 353.

The record of this case and the rationale of Chute compel a tolling of the 120-day period here. Unlike Chute, however, here it is undisputed that appellant’s representative did receive a copy of the decision on November 1, 1990. We hold that the defect resulting from the VA’s non-compliance with 38 U.S.C. § 7104(e) was cured on November 1, 1990, when, according to the appellant’s own records, the NVLSP received the BVA decision dated October 24, 1990. The Notice of Appeal filed on March 1, 1991, 120 days after November 1, 1990, is a timely and sufficient predicate for this Court to exercise jurisdiction over this appeal. There is no need for us to decide what the result would have been had the NVLSP never received the decision.

In view of the foregoing, we deny the Secretary’s motion for dismissal for lack of jurisdiction and order the parties to proceed in accordance with this Court’s Rules of Practice and Procedure.

It is so Ordered.

---

IVERS, Associate Judge,
concurring:

I concur in the opinion of the Court. However, in reviewing the record in this case, I am left with the impression that appellant’s representatives may have had notice, either actual or, at a minimum, constructive of the Board of Veterans’ Appeals (BVA) decision of October 24, 1990. Thus, either through an oversight or, in a manner calculated to establish a point of law, the time for filing of a Notice of Appeal was allowed to expire. In either case, had the Secretary instituted a system of accountability for mailing, and, thus, been in a position to establish that a copy of the BVA decision was mailed to both appellant and counsel, appellant’s right to appeal would have been lost.

---

## Ashley v. Derwinski, 2 Vet. App. 307 (1992) {#6727934}

*2 Vet. App. 307*

_Ashley v. Derwinski, 2 Vet. App. 307, decided 1992-04-21._

FARLEY, Associate Judge:
In an earlier opinion and order we denied the motion by the Secretary of Veterans Affairs (Secretary) to dismiss this appeal for lack of jurisdiction. See Ashley v. Derwinski, 2 Vet.App. 62 (1992). Subsequently, on January 23, 1992, the Secretary moved for reconsideration. Due to a marked change in the factual predicate, the Secretary’s motion will be granted; however, after reconsideration, we once again deny the Secretary’s motion to dismiss for lack of jurisdiction.

I.

The issue is whether appellant filed a timely Notice of Appeal (NOA). The Board of Veterans’ Appeals (Board or BVA) decision giving rise to this appeal was dated October 24, 1990; the NOA was received by the Court on March 1, 1991. Under 38 U.S.C. § 7266 (formerly § 4066), an NOA “must be filed within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) [formerly § 4004(e) ] of this title.” Section 7104(e) requires that the BVA mail “a copy of its written decision to the claimant and the claimant’s authorized representative (if any) at the last known address of the claimant and at the last known address of such representative (if any).” Since more than 120 days had elapsed between the date of the BVA decision and the receipt of the NOA, the Secretary moved to dismiss the appeal for lack of jurisdiction. Appellant opposed the motion, arguing that a copy of the BVA decision was not sent to her authorized representative and that, therefore, the 120-day period never began to run because the BVA decision was not “mailed pursuant to section 7104(e)”. (Thus, the issue is when the 120-day period of 38 U.S.C. § 7266 commenced to run. The issue is not whether that 120-day period can be extended. See Butler v. Derwinski, 960 F.2d 139 (Fed.Cir.1992).)

A.

Our original legal analysis remains valid and controlling. See Ashley, 2 Vet. App. at 64-65. It may be briefly summarized as follows: There is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties”. United *309States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926). Therefore, it must be presumed that the Secretary and the BVA properly discharged their official duties by mailing a copy of a BVA decision to the claimant and the claimant’s representative, if any, on the date the decision is issued. (While not relevant to the issue under consideration, it should be noted that the date of mailing, under certain circumstances, is presumed to be the next business day following the date of the BVA decision. See Rosler v. Derwinski, 1 Vet.App. 241, 242 (1991).)

The presumption of regularity is not absolute; it may be rebutted by the submission of “clear evidence to the contrary”. Id. Evidence of nonreceipt by either the veteran or the veteran’s representative, standing alone, is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. However, where an appellant submits clear evidence to the effect that the BVA’s “regular” mailing practices are not regular or that they were not followed, the Secretary is no longer entitled to the benefit of the presumption and the burden shifts to the Secretary to establish that the BVA decision was mailed to the veteran and the veteran’s representative, if any, as required by 38 U.S.C. § 7104(e). “ ‘The presumption [of official regularity may also] operate[ ] in reverse. If [mailing] appears irregular, it is irregular, and the burden shifts to the proponent to show the contrary.’ ” Ashley, 2 Vet.App. at 66, quoting United States v. Roses, Inc., 706 F.2d 1563, 1567 (Fed.Cir.1983).

B.

In opposing the Secretary’s original motion to dismiss, appellant submitted “clear evidence to the contrary” in the form of a declaration which raised serious questions concerning the Secretary’s compliance with the statutory requirement, under § 7104(e), that a copy of the decision must be mailed to a veteran’s representative of record. Colbert (Bert) L. Boyd, veterans’ service representative for the Vietnam Veterans of America (WA) and the Virginia Department of Veterans Affairs, declared that, based upon his experience, it was Department of Veterans Affairs’ practice to note the name and address of a claimant’s representative on the first page of the copy of the BVA decision placed in the veteran’s claims file if a copy was mailed to the representative. Appellant’s Response, Ex. 3. Mr. Boyd stated further that he had reviewed appellant’s claims file and that the first page of the BVA decision in the claims file did not contain the address of appellant’s representative. Id. We held that this evidence was sufficient to rebut the presumption of regularity in this instance and to shift to the Secretary the burden of demonstrating that the BVA decision had been mailed to appellant’s representative as required by § 7104(e). Instead of meeting this burden, the Secretary continued to rest on the presumption of regularity and did not submit any evidence or argument to contradict Mr. Boyd’s characterization of the BVA’s regular course of business. Faced with this one-sided record, we were compelled to deny the Secretary’s motion to dismiss on the ground that the Secretary had failed to demonstrate that the decision was mailed to appellant’s representative as required by 38 U.S.C. § 7104(e).

II.

On January 23, 1992, the Secretary moved for reconsideration of the earlier decision and, this time, the Secretary submitted evidence in the form of a Declaration of Richard E. Baker, Director, Administrative Service, BVA, which purported to document the regular practice of the BVA with respect to the mailing of BVA decisions. See Motion for Reconsideration, Attachment 2. While the belated Baker Declaration does contradict the Boyd Declaration earlier submitted by appellant and relied upon by the Court, the Secretary’s strategy of not submitting a full evidentia-ry record or a complete argument until reconsideration of an earlier defeat “does not serve interests of the parties or the court”. Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990), quoted in Tobler v. Derwinski, 2 Vet.App. 8, 10 (1991). This Court *310and, indeed, all courts do not countenance piecemeal or sequential litigation and under ordinary circumstances the Secretary’s motion for reconsideration would have been denied.

However, this case no longer presents ordinary circumstances because appellant, after further investigation at the suggestion of the Secretary, filed on February 4, 1992, a correction of factual error. Appellant reported that Mr. Boyd “acknowledged that he has no personal knowledge to dispute Mr. Baker’s assertions in his Declaration that, typically, the BVA decision in the claims folder is unmarked.” Appellant’s Correction of Factual Error at 3. In view of appellant’s disavowal of Mr. Boyd’s Declaration, the Court granted appellant’s motion for leave to respond to the Secretary’s motion for reconsideration and on March 3, 1992, appellant’s opposition was filed (an errata was submitted on March 4, 1992). The Court will grant the Secretary’s motion and reconsider its earlier decision.

III.

We now must apply the controlling legal principles to the new factual record presented in this motion for reconsideration. It is not disputed that appellant’s representative of record was and is the WA. The claims file contains the power of attorney form designating the WA, although, it must be noted, no address is listed for the WA on the form. See Appellant’s Opposition, Declaration of Roger A. Wedel, Attachment A5. It also is not disputed that the WA has entered into a contractual arrangement with the National Veterans Legal Services Project (NVLSP) whereby the NVLSP performs the legal services for the WA and its veteran clients. See id.

The Secretary offered the Declaration of Richard W. Baker to establish the regular procedure for contact with representatives hired by a service organization in general and the procedure for communication with the WA and the NVLSP in particular:

If the WA provided that another organization, such as the [NVLSP], will submit argument or evidence on behalf of the appellant, these submissions would be considered by the Board section in its deliberation in the case, but WA, not NVLSP, would remain the designated representative of record and would receive all official transmissions from BVA, unless and until the power of attorney to WA were [sic] revoked by the claimant.

Motion for Reconsideration, Baker Declaration at 2. Under the Secretary’s version, therefore, “all official transmissions”, including the mailing of the BVA decision, would be sent to the WA as the representative of record in the regular course of business. Unless rebutted by clear evidence to the contrary, the Secretary is entitled to the benefit of the presumption of regularity: it will be presumed that the BVA decision was “mailed pursuant to section 7104(e)” on October 24, 1990, the date of the decision.

Appellant takes specific issue with the Secretary’s characterization of the regular practice of the BVA, arguing that the “Board has consistently recognized the contractual relationship between the NVLSP and WA, and treated them as the same entity in cases in which WA holds the power of attorney.” Appellant’s Opposition at 8. In addition, and more telling, appellant has submitted “clear evidence to the contrary” in the form of copies of a number of letters dating from the time of the BVA decision at issue in this appeal which purport to transmit BVA decisions and which are inconsistent with Mr. Baker’s representations as to regular practice. The letters appear as attachments to the Declarations of Roger A. Wedel and Michael E. Wildhaber. See Appellant’s Opposition. Five of the letters are addressed to the WA and the NVLSP at a single address, that of the NVLSP. Wildhaber Declaration, Attachments C2, C3, C4, C5, and C6. In one instance, the letter was addressed to Mr. Wedel as “Service Represenative [sic] Vietnam Veterans of America” (Wedel Declaration, Attachment A3); in another, the letter is addressed to Mr. Wedel at the National Veterans Legal Services Project (Wedel Declaration, Attach*311ment A4). From this submission, appellant argues with considerable force that “[t]hese letters demonstrate that, for the period at least from October 1990 to January 1992, the practice of the BVA has been to treat NVLSP as WA for purposes of serving BVA papers on VVA when WA holds the power of attorney_” Appellant’s Opposition at 9. The evidence submitted by appellant in opposition to the Secretary’s motion for reconsideration directly contradicts the Secretary’s evidence with respect to what is, in fact, the regular course of business at the BVA. Therefore, once again, the burden of demonstrating that the BVA decision was mailed to appellant’s representative in the regular course of business shifted to the Secretary.

The Court, in its order of February 18, 1992, specifically gave the Secretary the authority to file a response to appellant’s opposition within 14 days. The 14-day period expired without a response from the Secretary; the silence is deafening. Simply put, the record before the Court establishes that the practice of the BVA is no practice. Appellant has submitted uncon-troverted evidence which stands in clear contradiction to the Secretary’s statement of the regular practice employed in mailing BVA decisions to claimants represented by the WA. The Secretary chose not to take advantage of the opportunity to clarify or at least attempt to explain the apparent contradiction.

Appellant has established that the Secretary’s practice in this regard is, at best, irregular and, as noted above, the burden then shifted to the Secretary “ ‘to show the contrary.’ ” Ashley, 2 Vet.App. at 66, quoting United States v. Roses, Inc., 706 F.2d at 1567. The Secretary did not shoulder this burden. We again hold, as we did previously, that the BVA did not mail the decision of October 24, 1990, pursuant to 38 U.S.C. § 7104(e), and therefore the 120-day period of 38 U.S.C. § 7266 did not begin to run until

the defect ... was cured on November 1, 1990, when, according to the appellant’s own records, the NVLSP received the BVA decision dated October 24, 1990. The Notice of Appeal filed on March 1, 1991, 120 days after November 1, 1990, is a timely and sufficient predicate for this Court to exercise jurisdiction over this appeal. There is no need for us to decide what the result would have been had the NVLSP never received the decision.

Ashley, 2 Vet.App. at 67.

IV.

To date, the lawyering of this appeal has been less than exemplary; there is much for both sides to reflect upon.

With respect to the Secretary, it is not for this Court to dictate or suggest litigation strategy or tactics. If the Secretary chooses to refuse to meet a burden imposed by law, especially in an appeal when that burden was made specifically clear, and to permit contradictions about the Secretary’s own practices to stand unchallenged, there is nothing that this Court can or will do other than to continue to decide issues on the record before us.

Appellant’s representatives originally submitted a declaration in support of the original opposition which, with a moment’s thought, should have appeared questionable at best. Appellant originally prevailed only because the Secretary, for reasons unknown, chose not to contest the accuracy of Mr. Boyd’s characterization of the Secretary’s own practices. Moreover, it is clear from the record that appellant timely received her copy of the BVA decision and that the WA, appellant’s representative of record, and the NVLSP, the contractual representative, each had a copy of the decision in hand for well over 100 days. However, again for reasons unknown, the choice was made not to file the NO A until after the 120-day period calculated from the date on the face of the BVA decision had lapsed. Whether this choice was the product of inadvertence or design, it placed the interests of appellant, the client of the WA and, by contract, the NVLSP, in considerable jeopardy in that it almost extinguished appellant’s right to judicial review. Had that occurred, appellant’s recourse would have been to look to her representatives for any redress that might be avail*312able to her under the law. See Robinson v. U.S. Navy, 342 F.Supp. 381 (E.D.Pa.1972).

Finally, we note that, just like the Secretary and the Department of Veterans Affairs, the service organizations too must realize that the creation of this Court and the institution of an adversarial process of judicial review mandate that regular administrative practices and standard operating procedures be reviewed and, where warranted, changes made. If the WA expects to receive transmissions from the BVA, then it is incumbent upon the WA to provide an address of record; if the NVLSP expects copies of decisions directly by mail, then specificity is required. Representatives will not be permitted to keep the BVA in the dark only to complain because the BVA has not guessed correctly.

V.

The Secretary’s motion for reconsideration is granted and we have reconsidered our earlier decision. In view of the foregoing, we again deny the Secretary’s motion for dismissal for lack of jurisdiction and order the parties to proceed to the merits of the appeal in accordance with this Court’s Rules of Practice and Procedure.

It is so Ordered.