Before Michel, Clevenger, and Bryson, Circuit Judges.
The opinion of the court was delivered by: Clevenger, Circuit Judge.
Appealed from: United States Court of Veterans Appeals Chief Judge Frank Q. Nebeker
Richard Linville appeals the dismissal by the Court of Veterans Appeals, on jurisdictional grounds, of his claim for veteransO benefits. The Court of Veterans Appeals held that LinvilleOs notice of appeal from the final decision of the Board of VeteransO Appeals was untimely because it was not received by the Board within the 120-day period required by Rosler v. Derwinski, 1 Vet. App. 241 (1991), notwithstanding that the notice of appeal was postmarked within the time period. See Linville v. West, 11 Vet. App. 60 (1998). Because the Court of Veterans Appeals misinterpreted regulations governing the timing and filing procedures for the Board of VeteransO Appeals, we reverse the decision below and remand with instructions to reinstate LinvilleOs appeal.
The facts of this case are few and undisputed. Mr. Linville is seeking additional service-connected benefits for post-traumatic stress disorder he suffers as a result of his military service during the Vietnam War. On February 28, 1996, the Board of VeteransO Appeals (OBoardO) denied LinvilleOs request for a higher disability rating, thereby affirming the rating decision of the Department of Veterans Affairs. On June 19, 1996, 112 days after the BoardOs final decision, LinvilleOs properly-addressed motion for reconsideration was postmarked by the United States Postal Service in Nedford, Oregon. A single-line date stamp apparently indicative of the mailroom at the Department of Veterans Affairs in Washington, D.C., was placed on the envelope on July 19, 1996. The Board denied the motion on September 12, 1996. On January 10, 1997, within the 120-day period following the denial of the motion for reconsideration, but well beyond the 120-day period following the BoardOs final decision, Linville filed a Notice of Appeal to the Court of Veterans Appeals. *fn1
On March 17, 1997, the Secretary of Veterans Affairs (OSecretaryO) moved to dismiss LinvilleOs appeal on the grounds that the BoardOs decision became final and unappealable when the 120-day period following the February 28, 1996, final decision ended. Linville, after obtaining assistance of counsel, filed an opposition to the motion. On February 3, 1998, an in banc Court of Veterans Appeals dismissed LinvilleOs appeal for lack of jurisdiction, holding that the postmark rule that otherwise applies to all documents filed within specified times with the Court of Veterans Appeals and the Board of Veterans' Appeals did not operate in this case. See Linville, 11 Vet. App. at 63. Thus, the Court of Veterans Appeals determined that LinvilleOs motion for reconsideration was filed on July 19, 1996, outside the 120-day time period from the BoardOs final decision, and thus could not operate to toll the time limit for filing a Notice of Appeal to the Court of Veterans Appeals, as allowed by that courtOs decision in Rosler v. Derwinski, 1 Vet. App. at 241. This appeal followed.
As an initial matter, the Secretary asserts that this court lacks jurisdiction to hear the case. In particular, he suggests that we are precluded from considering LinvilleOs arguments because they were not mentioned in the Court of Veterans Appeals' decision, and thus not Orelied uponO by that court as required by section 7292 of title 38, the statute granting the Federal Circuit the authority to review decisions of the Court of Veterans Appeals. 38 U.S.C. § 7292(d)(1) (1994) (allowing the Federal Circuit to review, and set aside if warranted, "any regulation or interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the Court of Veteran's Appeals"). We note that the Secretary does not claim that Linville failed to raise his arguments to the court below; indeed, a review of the record indicates that LinvilleOs statutory and regulatory arguments made here were also thoroughly presented to the Court of Veterans Appeals. See Opposition to Motion to Dismiss, No. 97-66, filed June 24, 1997 (Ct. Vet. App.). Instead, the Secretary in essence suggests that 38 U.S.C. * 7292 allows legal arguments made to the Court of Veterans Appeals to become unreviewable if those arguments are ignored or rejected sub silentio by the Court of Veterans Appeals.
We find this argument unpersuasive. The SecretaryOs construction of section 7292 would undermine this courtOs authority to review decisions of the Court of Veterans Appeals. To be sure, our review of Court of Veterans AppealsO decisions is limited to Orelevant questions of law,O including the interpretation of constitutional, statutory, and regulatory decisions. 38 U.S.C. 7292(d)(1). In that light, a specific curtailment of our scope of review is found in section 7292(d)(2): OExcept to the extent that an appeal . . . presents a constitutional issue, the Court of Appeals [for the Federal Circuit] 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.O Section 7292 as a whole evinces a clear intent on the part of Congress to allow the Federal Circuit to searchingly review the legal Conclusions expressly or necessarily reached by the Court of Veterans Appeals, while leaving factual determinations undisturbed. This purpose would be frustrated if this court were precluded from considering questions of law that were necessarily decided simply because they were left unmentioned by the court below. A decision that rejects a partyOs constitutional, statutory, or regulatory argument without Discussion is, after all, a decision no less OlegalO in nature than a holding that rejects it following detailed analysis.
Therefore, we hold that a question otherwise permissible for our review under 38 U.S.C. § 7292 does not fail the jurisdictional test simply because it was ignored or silently rejected by the Court of Veterans Appeals. Linville raised his regulatory arguments to the Court of Veterans Appeals, which rejected them without comment. We have the authority to review that court's decision to do so.
On the merits of the appeal, Linville asks this court to hold that his motion for reconsideration filed with the Board tolled the deadline for filing a notice of appeal with the Court of Veterans Appeals. See 38 U.S.C. § 7266(a)(1) (Supp. 1998) (notices of appeal from a Board decision must be filed "within 120 days after the date on which notice of the decision is mailed"). In Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991), the Court of Veterans Appeals held that if a motion for reconsideration is filed within 120 days of a final decision by the Board of Veterans' Appeals, Othe finality of the initial [Board] decision is abated by that motion for reconsideration,O and O[a] new 120-day period begins to run on the date on which the [Board] mails to the claimant notice of its denial of the motion for reconsider . . . .O Such action was necessary, the Court of Veterans Appeals reasoned, to harmonize the interpretation of 38 U.S.C. * 4066 (1988) (stating that a notice of appeal to the Court of Veterans appeals must be filed within 120 days of the date that the final Board of VeteransO Appeals decision is mailed) (recodified at 38 U.S.C. § 7266 (1994)) with the Supreme CourtOs holding in ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 284 (1987), which established that a Otimely petition for administrative reconsideration stay[s] the running of the [relevant] limitation period [for filing a petition for review with a court of appeals].O See Rosler, 1 Vet. App. at 244-45.
In this case, Linville argues that Rosler applies to make his January 10, 1997 notice of appeal timely, as it was filed within the 120-day period after the Board rejected his motion for reconsideration. See id. at 249. The Court of Veterans Appeals, however, rejected this contention, finding that Linville did not OtimelyO file his motion for reconsideration with the Board, as required by Rosler. In making this Conclusion, the Court of Veterans Appeals held that the OpostmarkO rule for determining filing dates in 38 U.S.C. * 7266(a)(3) (OA notice of appeal shall be deemed to be received by the Court [of Veterans Appeals] . . . [o]n the date of the United States Postal Service postmark stamped on the cover") "by the express terms of the statute is confined to [the Court of Veterans Appeals].O See Linville, 11 Vet. App. at 63. Thus, because LinvilleOs motion for reconsideration was filed with the Board, the Court of Veterans Appeals found OnothingO that allowed the affixing of a United States Postal Service postmark to determine the filing date of such a paper. Id. at 63. LinvilleOs appeal was thus dismissed as untimely filed. See id. at 64.
Linville argues to this court--as he did to the court below--that Department of Veterans AffairsO regulations governing the filing of documents with the Board of Veterans' Appeals expressly allow the postmark date as the filing date. ...