Veteranclaims’s Blog

November 16, 2018

Federal Circuit; equitable tolling; three elements: (1) extraordinary circumstances; (2) due diligence; and (3) causation; Toomer v. McDonald, 783 F.3d 1229, 1238 (Fed. Cir. 2015) (quoting Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014));

Excerpt from decision below:

““[T]his court has made clear that ‘to benefit from equitable tolling, . . . a claimant [must] demonstrate three elements: (1) extraordinary circumstances; (2) due diligence;
and (3) causation.’” Toomer v. McDonald, 783 F.3d 1229, 1238 (Fed. Cir. 2015) (quoting Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014)).”

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
______________________
DOROTHY M. MAY,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2157
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3484, Chief Judge Robert N.
Davis.
______________________
Decided: November 15, 2018
______________________
DOROTHY M. MAY, Muskegon Heights, MI, pro se.
ALEXIS J. ECHOLS, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represented
by JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN,
JR., LOREN MISHA PREHEIM; CHRISTOPHER O. ADELOYE, Y.
KEN LEE, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
2 MAY v. WILKIE
______________________
Before LOURIE, DYK, and HUGHES, Circuit Judges.
PER CURIAM.
Dorothy M. May, the widow of Frank May, a veteran,
petitions this court for review of a final decision of the
Court of Appeals for Veterans Claims (“Veterans Court”).
The Veterans Court dismissed Mrs. May’s appeal as
untimely. We dismiss.
BACKGROUND
Mr. May served on active duty in the U.S. Army from
November 1966 to October 1968, including service in
Vietnam. He died in February 1991 from a stroke due to
hypertension with an underlying cause of atrial fibrillation.
Because Mrs. May claims her husband’s death was
due to a service-connected disability, she seeks accrued
benefits.1 “[I]n order for a surviving spouse to be entitled
to accrued benefits, the veteran must have had a claim
pending at the time of his death for such benefits or else
be entitled to them under an existing rating or decision.”
Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).
On August 31, 2010, ischemic heart disease was added
to the list of conditions under 38 C.F.R. § 3.309(e) that
create presumptive service connection. See Diseases
Associated with Exposure to Certain Herbicide Agents
(Hairy Cell Leukemia and Other Chronic B-Cell Leukemias,
Parkinson’s Disease and Ischemic Heart Disease),
75 Fed. Reg. 53202 (Aug. 31, 2010) (codified at 38 C.F.R.
§ 3.309). On September 9, 2010, Mrs. May filed a claim
1 Mrs. May also filed a claim for dependency and
indemnity compensation for the cause of her husband’s
death, which was granted and is not at issue in this
appeal.
MAY v. WILKIE
3
for accrued benefits for ischemic heart disease associated
with herbicide exposure.
On October 20, 2011, the Department of Veterans Affairs
(“VA”) denied Mrs. May’s claim. The VA found no
evidence that Mr. May was ever diagnosed with ischemic
heart disease or had filed a claim for benefits based on
any herbicide related disability. The VA concluded that
service connection for ischemic heart disease was not
established and therefore denied the accrued benefits
claim.
Mrs. May filed a timely notice of disagreement with
the Board of Veterans’ Appeals (“Board”). On June 15,
2015, the Board denied her claim for accrued benefits
because a claim for service connection for ischemic heart
disease was not pending at the time of Mr. May’s death.
The Board mailed Mrs. May a copy of its decision on that
same day (“final decision”).
On August 5, 2016, more than 120 days after the
Board mailed its final decision, Mrs. May requested
reconsideration of the Board’s decision. That motion was
denied on August 8, 2017. On October 2, 2017, Mrs. May
then appealed the Board’s final decision to the Veterans
Court. Her appeal was untimely because it was filed
more than 120 days after the final decision and because
her request for reconsideration was also filed more than
120 days after the final decision. See Graves v. Principi,
294 F.3d 1350, 1352 (Fed. Cir. 2002); Linville v. West, 165
F.3d 1382, 1386 (Fed. Cir. 1999). The 120-day deadline is
not jurisdictional, and the period may be equitably tolled.
Henderson v. Shinseki, 562 U.S. 428, 441–42 (2011).
On November 16, 2017, the Veterans Court ordered
Mrs. May to show cause why her appeal should not be
dismissed as untimely. The Veterans Court informed
Mrs. May that “[e]quitable tolling of the 120-day time
limit, however, is available when circumstances have
4 MAY v. WILKIE
precluded an appellant from timely filing his or her
[appeal] despite the exercise of due diligence.” S.A. 85.2
Mrs. May submitted two responses in November 2017,
each of which essentially argued that equitable tolling
was warranted because Mr. May died before Congress
approved benefits for veterans who served in the Vietnam
War and suffered from ischemic heart disease, and he
therefore never had an opportunity to file a claim for
service connection for ischemic heart disease. She later
submitted additional correspondence in January 2018,
arguing that medical and financial conditions of her and
her children prevented her from timely seeking reconsideration
of the Board’s final decision.
The Veterans Court dismissed Mrs. May’s appeal as
untimely, finding that equitable tolling was not warranted
because “she ha[d] neither pled nor demonstrated that
extraordinary circumstances prevented her from filing her
motion for reconsideration within 120 days of the Board’s
decision, or alternatively, filing her [Notice of Appeal]
within that 120-day period.” Id. at 2.
Mrs. May timely appealed to this court. We have limited
jurisdiction to review decisions of the Veterans Court.
Absent a constitutional issue, we may not review a challenge
to a factual determination or a challenge to a law or
regulation as applied to the facts of a particular case. 38
U.S.C. § 7292(d)(2); Wanless v. Shinseki, 618 F.3d 1333,
1336 (Fed. Cir. 2010).
DISCUSSION
Mrs. May argues that the Veterans Court erred in rejecting
her request for equitable tolling. Her theory
before the Board was that, at the time of her husband’s
2 Citations to the record are to the supplemental
appendix (“S.A.”) filed by the government.
MAY v. WILKIE
5
death, there was no presumption that ischemic heart
disease was service related, and therefore he never had an
opportunity to apply for benefits before he died. On
appeal, she also argues that both her and her children
have suffered numerous physical, medical, and mental
disabilities over the years because of Mr. May and his
service connected death, which prevented her from being
able to seek reconsideration of the Board’s final decision
within the 120-day deadline.
“[T]his court has made clear that ‘to benefit from equitable
tolling, . . . a claimant [must] demonstrate three
elements: (1) extraordinary circumstances; (2) due diligence;
and (3) causation.’” Toomer v. McDonald, 783 F.3d
1229, 1238 (Fed. Cir. 2015) (quoting Checo v. Shinseki,
748 F.3d 1373, 1378 (Fed. Cir. 2014)). This is the standard
that the Veterans Court applied, and Mrs. May does
not argue that the Veterans Court applied an incorrect
legal standard when evaluating whether equitable tolling
was warranted. Rather, she challenges the Veterans
Court’s finding that she did not establish “exceptional
circumstances” to warrant equitable tolling. In that
respect, she raises no legal error over which we have
jurisdiction.
There was no colorable claim of legal error with respect
to the Veterans Court rejecting the explanations
presented in Mrs. May’s November 2017 responses and
January 2018 additional correspondence. The Board held
that the claimed earlier unavailability of the presumption
did not prevent her from timely seeking reconsideration of
the Board’s final decision or from timely appealing that
decision. With respect to the arguments presented in her
November 2017 responses, the fact that her husband was
unable to file a claim for benefits for ischemic heart
disease before he died is not a basis for equitable tolling
as the Veterans Court held. Further, while the Veterans
Court’s decision is not entirely clear, we read it as reject6
MAY v. WILKIE
ing the sufficiency of the evidence presented in her January
2018 correspondence as either pre-dating the time
period at issue or, to the extent she showed the existence
of medical or financial hardship, failing to connect those
hardships to her failure to file a timely motion for reconsideration
or appeal. There is no colorable claim of legal
error in that determination.
We therefore dismiss the appeal for lack of jurisdiction.
38 U.S.C. § 7292(d)(2).
DISMISSED
COSTS
No costs.

 

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