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NOTE: This disposition is nonprecedential.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
Appeal from the United States Court of Appeals for Veterans Claims in No. 18-5283, Judge Joseph L. Toth.
__________ Decided: September 2, 2020 __________
ZACHARY 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 Case: 19-2209 Document: 43 Page: 1 Filed: 09/02/2020
CONES v. WILKIE
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.
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
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Federal Circuit; Presumption of Regularity; We reject Mr. Cones' argument that if the presumption of regularity is rebutted, the VA is required to provide "direct" evidence of mailing. It is well established that circumstantial 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);
NOTE: This disposition is nonprecedential.United States Court of Appeals for the Federal Circuit CHRISTOPHER L. CONES, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS,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 __________ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick, Providence,...