
    Sam BINION, Jr., Appellant, v. Edward J. DERWINSKI, Secretary of Veterans Affairs, Appellee.
    No. 91-1189.
    United States Court of Veterans Appeals.
    April 9, 1992.
    Before MANKIN, Associate Judge.
   ORDER

On December 16, 1991, the Secretary of Veterans Affairs (Secretary) filed a motion to dismiss and to stay proceedings. The motion was premised upon an untimely filing. The Secretary argues that appellant did not file his Notice of Appeal (NOA) from a July 17, 1990, Board of Veterans’ Appeals (BYA) decision until July 15, 1991, well after the 120-day filing deadline.

After a delay because of a mistake in the mailing, appellant, on March 3,1992, filed a response to the motion to dismiss. Appellant, citing Cerullo v. Derwinski, 1 Vet.App. 195 (1991), argues that his NOA could not have been properly filed prior to a BVA decision on his motion for reconsideration, because filing an NOA with the Court would have transferred jurisdiction. The BVA rendered its decision in this case on July 17, 1990, and appellant filed a motion for reconsideration with the BVA on April 3,1991. On June 21,1991, the BVA denied the motion. Appellant then filed an NOA with the Court on July 15, 1991.

Appellant’s argument is unfounded. Filing a motion for reconsideration with the BVA tolls the period for filing an appeal only if the motion is filed within 120-days after the BVA decision is mailed. In the instant appeal, appellant filed his motion for reconsideration 260 days after the BVA decision was mailed. Since the motion was not filed within 120-days of the BVA decision, the appeal period was not tolled. Butler v. Derwinski, 960 F.2d 139, 141-42 (Fed.Cir.1992). Upon consideration of the foregoing, it is

ORDERED that the Secretary’s motion to dismiss for an untimely NOA is granted. It is further

ORDERED that the Secretary’s motion to stay proceedings is denied as moot.  