Veteranclaims’s Blog

February 4, 2014

FedCir. Dixon v. Shinseki, No 2013-7032(Decided: February 4, 2014); Equitable Tolling; Abuse of Discretion; 100% Depressive Disability; Golden v. Shinseki, No. 04-1385, 2012 WL 1765439, at *2

Excerpt from decision below:

II. Motions for an Extension of Time
Dixon argues that the Veterans Court abused its discretion in denying his motion for an extension of time given that the VA actively obstructed his attorney’s efforts to obtain and review his claims file. In support, he contends that the court’s refusal to grant LeBoeuf adequate time to secure copies of relevant medical records is
8 DIXON v. SHINSEKI

contrary to this court’s decision in Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) (“Barrett II”), and serves to “reward delay and obstruction by the [VA].”
We agree under the circumstances of this case.

“Because many veterans lack the knowledge and resources necessary to locate relevant records, Congress has appropriately placed the burden on the VA to ensure that all relevant service medical records are obtained and fully evaluated.” Moore v. Shinseki, 555 F.3d 1369, 1374-75(Fed. Cir. 2009). In Barrett II, we explicitly rejected the government’s argument that while the VA had a duty to produce records related to the merits of a veteran’s disability
claim, it was subject to no such obligation with respect to a veteran’s motion seeking equitable tolling of the 120-day deadline for appealing to the Veterans Court. 466 F.3d at 1042-44. We explained that “where evidence required to prove a fact is peculiarly within the knowledge and competence of one of the parties, fairness requires that party to bear the burden of coming forward.” Id. at 1042 (citations and internal quotation marks omitted).

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“We find this reasoning unconvincing. The fact that a veteran, despite severe physical or psychiatric disabilities, manages to file an untimely notice of appeal does not mean that those disabilities did not impede his ability to submit his appeal at an earlier date. The equitable tolling doctrine would be rendered a virtual nullity if the submission of an time is often “supremely qualified to make determinations of mental incapacity.” Barrett II, 466 F.3d at 1044; see also Barrett I, 363 F.3d at 1320 (emphasizing that the VA “employs a host of medical professionals” and is “uniquely qualified to facilitate the diagnosis of troubled claimants”).
Here, because Kielpikowski had treated Dixon since 2001, he was presumably highly qualified to provide an informed opinion on the extent to which Dixon’s psychiatric
and physical disabilities impeded his ability to file a notice of appeal within the 120-day filing period. See Golden v. Shinseki, No. 04-1385, 2012 WL 1765439, at *2 (Vet. App. May 18, 2012) (granting a veteran’s equitable tolling request and noting that “a VA regional office found her depressive condition to be 100% disabling”).

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United States Court of Appeals
for the Federal Circuit
______________________
DONALD A. DIXON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7032
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 08-1475, Chief Judge Bruce E.
Kasold.
______________________
Decided: February 4, 2014
______________________
STERLING LEBOEUF, Arnold & Porter, LLP, of Denver,
Colorado, argued for claimant-appellant. With him on the
brief was THOMAS W. STOEVER, JR.
ALLISON KIDD-MILLER, Senior Trial Counsel, Civil Division,
United States Department of Justice, of Washington,
DC, argued for respondent-appellee. With her on the
brief were STUART F. DELERY, Acting Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, JR., Assistant Director. Of counsel were DAVID
J. BARRANS, Deputy Assistant General Counsel, and
2 DIXON v. SHINSEKI

MARTIE ADELMAN, Attorney, United States Department of
Veterans Affairs, of Washington, DC.
______________________
Before DYK, MAYER, and CHEN, Circuit Judges.

MAYER, Circuit Judge.
Donald A. Dixon appeals the final judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying his motion to recall the mandate issued in a decision dismissing his appeal as untimely filed. See Dixon v. Shinseki, No. 08-1475, 2012 WL 3291861 (Vet. App. Aug. 14, 2012) (“Equitable Tolling Decision”). We reverse and remand.

BACKGROUND
Dixon served in the United States Army from July
1979 until July 1992. He worked as a chemical operations
specialist and served in the Persian Gulf, where he was
exposed to pyridostigmine, a medication administered to
troops to protect them from nerve agents. J.A. 115.
Dixon also “encountered smoke from oil fires, diesel, and
burning trash,” and had “cutaneous exposure [to] diesel
and petrochemical fuel.” J.A. 115.
In April 2003, Dixon was diagnosed with sarcoid
lungs and transverse myelitis, which left him temporarily
paralyzed from the waist down. Four months later, he
filed a claim with the Department of Veterans Affairs
(“VA”) seeking service-connected disability benefits for
sarcoidosis. He alleged that his “exposure to oil fires and
chemicals in Kuwait [was] a major factor” in the development
of his illness. J.A. 117.
In a September 2004 rating decision, a VA regional office
denied Dixon’s claim. On appeal, the Board of Veterans’
Appeals (“board”) affirmed, concluding that there was
“no medical evidence relating [Dixon’s] postservice diagnosis
of . . . transverse myelitis and sarcoidosis to ser

DIXON v. SHINSEKI 3

vice.” J.A. 121. Acting pro se, Dixon filed a notice of
appeal with the Veterans Court on May 9, 2008, sixty
days beyond the 120-day filing deadline specified in 38
U.S.C. § 7266(a). On August 29, 2008, the Veterans Court
dismissed Dixon’s appeal, concluding that it was “without
jurisdiction” to consider the appeal because it had not
been filed within the 120-day filing period. J.A. 132.
In Henderson ex rel. Henderson v. Shinseki, the Supreme
Court held that the 120-day filing deadline for
appealing to the Veterans Court is not a jurisdictional
requirement. 131 S. Ct. 1197, 1203-06 (2011) (“Henderson
II”). Instead, section 7266(a)’s time limit is a “quintessential
claim-processing rule[],” id. at 1203, which was not
intended by Congress “to carry the harsh consequences
that accompany the jurisdiction tag,” id. at 1206.
In the wake of Henderson II, the Veterans Court issued
an order allowing Dixon, and other similarlysituated
veterans, to file motions to recall the mandates
dismissing their appeals based on principles of equitable
tolling. See Bove v. Shinseki, 25 Vet. App. 136, 139-45
(2011). Still acting pro se, Dixon filed a motion seeking
equitable tolling and explaining that he suffered from
physical and psychiatric disabilities which prevented him
from filing his notice of appeal in a timely manner:
During the latter part of the year 2007 I missed
my deadline due to illness and mental stress. I
was having continued respiratory episodes, panic
attacks, and secluding myself as much as possible
due to PTSD. I was so consumed with being ill
and believing I was [dying]. I could not concentrate
on myself or issues that needed to be resolved.
My records will show that I was having
many PTSD, gastrointestinal, respiratory, and
gout issues at the time. J.A. 134.
4 DIXON v. SHINSEKI

On July 30, 2012, Dixon filed a supplemental motion
stating that during the appeal period he believed that he
was “on [his] death bed” and was having many panic
attacks related to his “large lymph nodes” which in the
next year proved to be a symptom of lymphoma, a form of
cancer. J.A. 139. Dixon also submitted a letter from his
VA psychiatrist, Gary L. Kielpikowski, M.D., which stated
that he had been treating Dixon since 2001 and that
Dixon “had severe problems with medical issues and Post
Traumatic Stress Disorder during” the period when he
was appealing the board’s denial of his claim for sarcoidosis.
J.A. 137. Kielpikowski explained that Dixon was
“unable to attend [to] or focus on the appeal process
during the [period from] November 2007 to August 2008.”
J.A. 137.
On August 14, 2012, the Veterans Court denied Dixon’s
motion seeking equitable tolling and dismissed his
appeal. Although the court acknowledged that
Kielpikowski had opined that Dixon could not attend to,
or focus on, the appeal process due to his mental and
physical infirmities, it determined that Dixon had failed
to establish that his untimely filing was “the direct result
of his illnesses.” Equitable Tolling Decision, 2012 WL
3291861, at *1 (citations and internal quotation marks
omitted).
On August 28, 2012, Sterling J. LeBoeuf and Thomas
W. Stoever, Jr., attorneys with Arnold & Porter LLP,
agreed to represent Dixon pro bono. They promptly
moved for an extension of time to file a motion for reconsideration
of the decision denying Dixon’s request for
equitable tolling. The Veterans Court granted this motion
on August 30, 2012, allowing Dixon until October 4,
2012 to file a motion for reconsideration.
On September 5, 2012, LeBoeuf requested a copy of
Dixon’s claims file from the VA. The VA refused, however,
to send him a copy of the file. VA representatives did
DIXON v. SHINSEKI 5

offer to make the file available for review at the VA’s
Denver regional office, but informed LeBoeuf that the
earliest available appointment for reviewing the file was
October 1, 2012, three days before Dixon’s motion for
reconsideration was due. On October 1, 2012, Rebecca
Golz, a legal assistant who worked with LeBoeuf, visited
the VA’s Denver office and reviewed Dixon’s claims file.
Golz alleges, however, that she was monitored by a VA
representative during the review process and that she
was not allowed “enough time to review the documents
thoroughly.” J.A. 171. During her review of Dixon’s file,
Golz selected twenty to thirty documents that she wished
to have copied. Although the VA agreed to make copies of
these documents, it refused to do so contemporaneously.
Golz attempted to give VA officials prepaid Federal Express
and UPS shipping labels in order to expedite shipping
of the copies she had requested, but they declined to
accept them. Although Golz stressed to VA officials that
Dixon’s motion for reconsideration was due on October 4,
2012, they declined to provide any assurances that the
documents would be sent before that date. As of October
4, 2012, the VA had not provided Dixon’s attorneys with
any of the documents Golz had marked for copying.
The VA also hindered LeBoeuf’s efforts to obtain a
declaration from Kielpikowski supporting Dixon’s motion
for reconsideration. Throughout September 2012,
LeBoeuf “worked with Mr. Dixon and Dr. Kielpikowski to
understand the medical conditions that prevented Mr.
Dixon from timely filing his [notice of appeal].” On October
2, 2012, LeBoeuf sent a draft declaration describing
these psychiatric and physical conditions to Kielpikowski
for review. This declaration stated that in the period
between November 2007 and March 2008 Dixon suffered
from psychiatric conditions that “rendered him unable to
focus on and complete the process of preparing and filing
a notice of appeal” and that his “psychiatric and physical
conditions directly resulted in his inability to timely file a
6 DIXON v. SHINSEKI

notice of appeal with [the Veterans] Court.” J.A. 178-79.
On the same day that he received the draft declaration,
Kielpikowski called LeBoeuf and informed him that he
was willing to sign it as soon as counsel for the VA authorized
him to do so. Soon thereafter, however, a VA
attorney called LeBoeuf and informed him that
Kielpikowski would not be permitted to sign the declaration
because the VA’s Touhy regulations precluded him
from doing so.1
On October 3, 2012, LeBoeuf filed a second motion for
an extension of time with the Veterans Court. He explained
that “extraordinary circumstances” justified the
granting of additional time given that the VA had refused
to timely provide him with relevant documents from
Dixon’s claims file and had unjustifiably prohibited Dixon’s
“doctor from providing truthful testimony in support
of his motion” for reconsideration.
On October 10, 2012, the Veterans Court denied
LeBoeuf’s motion for an extension of time2 and entered
judgment against Dixon. Citing to Rule 35(e)(1) of its
Rules of Practice and Procedure, the court stated that “a
motion for reconsideration or panel review must show
that the Court has overlooked or misunderstood a point of
law or fact.” Dixon v. Shinseki, No. 08-1475, slip op. at 1
(Vet. App. Oct. 10, 2012) (“Order Denying an Extension of
Time”). In the court’s view, Dixon had no right to “augment[]
the record” on motion for reconsideration because
such a motion “must be based on the record at the time of
1 As will be discussed more fully in section III, the
VA’s Touhy regulations are inapplicable where, as here,
the VA “is a party” to the proceedings. 38 C.F.R.
§ 14.801(b)(2)(i).
2 The Veterans Court also denied Dixon’s motion to
file a motion for reconsideration out of time. See Order
Denying an Extension of Time, slip op. at 2.
DIXON v. SHINSEKI 7

the decision upon which reconsideration or panel review
is sought.” Id. Because the court concluded that Dixon
had no right to submit medical records from his claims file
or a declaration from his VA physician in support of his
motion for reconsideration, it determined that he had
failed to establish “good cause” for granting an extension
of time. Id.
Dixon then filed a timely appeal with this court. We
have jurisdiction under 38 U.S.C. § 7292.

DISCUSSION
I. Standard of Review
This court’s authority to review decisions of the Veterans
Court is circumscribed by statute. Reeves v.
Shinseki, 682 F.3d 988, 992 (Fed. Cir. 2012). While we
have jurisdiction to review the Veterans Court’s interpretation
of statutory and regulatory provisions, we are
prohibited, absent a constitutional issue, from reviewing
challenges to factual determinations or the application of
a statute or regulation to the facts of a particular case. 38
U.S.C. § 7292. “We have recognized, however, that where
adoption of a particular legal standard dictates the outcome
of a case based on undisputed facts, we may address
that issue as a question of law.” Halpern v. Principi, 384
F.3d 1297, 1306 (Fed. Cir. 2004); see also Conley v. Peake,
543 F.3d 1301, 1304 (Fed. Cir. 2008). We review de novo
the legal determinations made by the Veterans Court.
Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir.
2009).

II. Motions for an Extension of Time
Dixon argues that the Veterans Court abused its discretion in denying his motion for an extension of time given that the VA actively obstructed his attorney’s efforts to obtain and review his claims file. In support, he contends that the court’s refusal to grant LeBoeuf adequate time to secure copies of relevant medical records is
8 DIXON v. SHINSEKI

contrary to this court’s decision in Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) (“Barrett II”), and serves to “reward delay and obstruction by the [VA].”
We agree under the circumstances of this case.
“Because many veterans lack the knowledge and resources necessary to locate relevant records, Congress has appropriately placed the burden on the VA to ensure that all relevant service medical records are obtained and fully evaluated.” Moore v. Shinseki, 555 F.3d 1369, 1374-75(Fed. Cir. 2009). In Barrett II, we explicitly rejected the government’s argument that while the VA had a duty to produce records related to the merits of a veteran’s disability
claim, it was subject to no such obligation with respect to a veteran’s motion seeking equitable tolling of the 120-day deadline for appealing to the Veterans Court.
466 F.3d at 1042-44. We explained that “where evidence required to prove a fact is peculiarly within the knowledge and competence of one of the parties, fairness requires that party to bear the burden of coming forward.” Id. at 1042 (citations and internal quotation marks omitted).
Because the VA typically has “superior access to a veteran’s
[claims] file and the facts bearing on jurisdiction,” it
has an affirmative obligation “to come forward with”
evidence relevant to a veteran’s entitlement to equitable
tolling “and to develop additional facts uniquely within its
competence” on that issue.3 Id. at 1042-43.
3 Although the government acknowledges that the
VA is required to produce relevant records from a veteran’s
claims file during the initial adjudication of a request
for equitable tolling, it argues that Barrett II imposes no
such obligation when a veteran subsequently seeks reconsideration
of a decision denying equitable tolling. We find
the government’s reading of Barrett II to be unduly
cramped. Nothing in that decision suggests that the
government’s obligation to produce records relevant to a
DIXON v. SHINSEKI 9
Here, however, the VA did not come forward with the
evidence in its possession related to Dixon’s claim for
equitable tolling, but instead obstructed the diligent
efforts by LeBoeuf to gain access to Dixon’s claims file
prior to the October 4, 2012 motion for reconsideration
filing deadline set by the Veterans Court. The VA refused
to send LeBoeuf a copy of the file, and while it allowed a
legal assistant from LeBoeuf’s firm to review the file for a
limited period of time at its Denver regional office, she
was not allowed “enough time to review the documents
thoroughly.” J.A. 171. Nor was she permitted to make
copies of any documents. Furthermore, although VA
representatives agreed to copy twenty to thirty documents
from the claims file and send them to LeBoeuf, he had not
received them by the October 4, 2012 filing deadline.
Given that the VA, despite diligent efforts by LeBoeuf,
failed to timely produce relevant documents from Dixon’s
claims file, and, as discussed below, the Veterans Court
was, under the circumstances here, obligated to consider
the record, the Veterans Court erred in refusing to grant
an extension of time. Although “[t]he Veterans Court has
broad discretion to interpret and apply its Rules of Practice
and Procedure,” Bastien v. Shinseki, 599 F.3d 1301,
1307 (Fed. Cir. 2010), we see no reasonable justification
for the court’s refusal to grant an extension of time here.
Where a litigant is unjustifiably denied timely access to
pertinent evidence in the possession of the opposing party,
fairness dictates that he be granted an extension of time
sufficient to allow him to obtain and review such evidence.
See Baron Servs., Inc. v. Media Weather Innovations
LLC, 717 F.3d 907, 912-13 (Fed. Cir. 2013)
(concluding that a district court abused its discretion
when it refused to delay proceedings in order to allow a
claim for equitable tolling does not apply in the context of
a motion for reconsideration.
10 DIXON v. SHINSEKI
litigant sufficient time to obtain relevant evidence);
Metro. Life Ins. Co. v. Bancorp Servs., L.L.C., 527 F.3d
1330, 1337 (Fed. Cir. 2008) (concluding that a district
court abused its discretion in refusing to provide a litigant
with adequate time to conduct discovery before ruling on
the merits of a claim).
Veterans not infrequently encounter significant difficulties
when attempting to obtain pertinent medical
records from the VA. See, e.g., Moore, 555 F.3d at 1374
(veteran’s medical records were “‘lost in the bowels’ of the
National Personnel Records Center” for several years and
were located only after the veteran obtained counsel and
appealed to this court); Washington v. Nicholson, 19 Vet.
App. 362, 369 (2005) (veteran’s medical records were lost
and never located); Marciniak v. Brown, 10 Vet. App. 198,
200 (1997), aff’d sub nom. Marciniak v. West, 168 F.3d
1322 (Fed. Cir. 1998) (the VA “twice lost” the veteran’s
claims file). Denying a motion for an extension of time in
situations in which the VA runs out the clock, refusing to
produce relevant medical evidence until after the deadline
for filing a motion for reconsideration has passed, serves
only to reward delay and obstruction on the agency’s part.
See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009)
(emphasizing that “[t]he VA disability compensation
system is not meant to be a trap for the unwary, or a
stratagem to deny compensation to a veteran who has a
valid claim”).
III. The Kielpikowski Declaration
Under Veterans Court Rule 35(e), a motion for reconsideration
is required to “state the points of law or fact
that the party believes the Court has overlooked or misunderstood.”
Vet. App. R. 35(e)(1). Dixon argues that the
Veterans Court misinterpreted this rule when it concluded
that it barred him from introducing a declaration from
his VA psychiatrist, Kielpikowski, supporting reconsideration
of the decision denying his equitable tolling claim.
DIXON v. SHINSEKI 11
According to Dixon, introduction of the Kielpikowski
declaration comports with Rule 35(e) because it establishes
that the Veterans Court “misunderstood” the letter
Kielpikowski submitted when Dixon filed his initial
motion seeking equitable tolling. Specifically, the declaration
is intended to clarify that when Kielpikowski
originally stated that Dixon’s “severe” psychiatric and
physical disabilities rendered him “unable to attend [to]
or focus on” the filing of his appeal, J.A. 137, he meant
that those conditions “directly resulted in his inability to
timely file a notice of appeal with [the Veterans] Court,”
J.A. 179.
The Veterans Court determined, however, that Dixon
was precluded from introducing Kielpikowski’s declaration,
reasoning that he had no right to “augment[] the
record” when submitting his motion for reconsideration.4
Order Denying an Extension of Time, slip op. at 1. In the
court’s view, Rule 35(e) requires that a motion for reconsideration
“be based on the record at the time of the
decision upon which reconsideration or panel review is
sought.” Id.
We conclude that the Veterans Court erred to the extent
that it concluded that Rule 35(e) imposes an absolute
prohibition on the submission of clarifying evidence in
support of reconsideration of an equitable tolling decision.
4 An attorney from the VA originally informed
LeBoeuf that the VA’s Touhy regulations precluded
Kielpikowski from submitting his declaration. Under
certain circumstances, the Touhy regulations prevent VA
employees from providing expert testimony. 38 C.F.R.
§ 14.801; see also Parson v. Chet Morrison Contrs.,
LLC, No. 12-0037, 2013 WL 5961099, at *2 (E.D. La. Nov.
7, 2013). Those regulations, however, are inapplicable
where, as here, the VA “is a party” to the proceedings. 38
C.F.R. § 14.801(b)(2)(i).
12 DIXON v. SHINSEKI
Such an interpretation is contrary to the court’s own
precedent which recognizes that, under certain circumstances,
introduction of clarifying evidence is necessary
for “a full and fair consideration of [a veteran’s] equitable
tolling request, including assessment of all relevant
facts.” McCreary v. Nicholson, 20 Vet. App. 86, 91 (2006);
see also Leonard v. Shinseki, No. 12-1953, 2013 WL
1200783, at *1 (Vet. App. Mar. 26, 2013) (granting a
veteran’s motion for reconsideration of a decision denying
equitable tolling and allowing him “to submit information
or evidence about the circumstances that prevented his
timely filing” of a notice of appeal); Henderson v. Nicholson,
No. 05-0090, 2006 WL 4029376, at *1 (Vet. App. Dec.
4, 2006), related proceeding at Henderson v. Peake, 22 Vet.
App. 217 (2008), aff’d sub nom. Henderson v. Shinseki,
589 F.3d 1201 (Fed. Cir. 2009) (en banc), rev’d and remanded
Henderson II, 131 S. Ct. 1197 (“Henderson I”)
(granting a veteran’s motion for reconsideration and
expressly allowing him “to submit additional evidence”
supporting his equitable tolling claim); Ashley v. Derwinski,
2 Vet. App. 307, 309 (1992) (permitting the government
to submit additional evidence, in the form of a
“belated” declaration from a VA employee, in support of
its motion for reconsideration). As Dixon correctly notes,
an interpretation of Rule 35(e) which imposes a blanket
prohibition on the introduction of clarifying evidence
serves to “punish some of the most vulnerable litigants in
the Veterans Court—unrepresented veterans whose
illnesses, often related to their military service,” prevent
them from fully apprehending the prerequisites for establishing
entitlement to equitable tolling of section 7266(a)’s
filing deadline.
In Henderson II, a unanimous Supreme Court rejected
the view that the 120-day time limit for appealing to the
Veterans Court posed an inflexible jurisdictional barrier.
131 S. Ct. at 1205-06. Although the Court noted that “the
time for taking an appeal from a district court to a court
DIXON v. SHINSEKI 13
of appeals in a civil case has long been understood to be
jurisdictional,” id. at 1205, it explained that “[t]he contrast
between ordinary civil litigation . . . and the system
that Congress created for the adjudication of veterans’
benefits claims could hardly be more dramatic,” id. at
1205-06. The Court stated that “[t]he solicitude of Congress
for veterans is of long standing. And that solicitude
is plainly reflected in the [Veterans’ Judicial Review Act],
as well as in subsequent laws that place a thumb on the
scale in the veteran’s favor in the course of administrative
and judicial review of VA decisions.” Id. at 1205 (citations
and internal quotation marks omitted). In the Court’s
view, “[r]igid jurisdictional treatment of the 120-day
period for filing a notice of appeal in the Veterans Court
would clash sharply with” the unequivocally pro-claimant
scheme created by Congress for reviewing veterans’
disability claims. Id. at 1206.
A rigid prohibition precluding a veteran from presenting
clarifying evidence on his entitlement to equitable
tolling would likewise “clash sharply” with the proclaimant
veterans’ adjudicatory system. A mechanistic
bar on the introduction of clarifying evidence on motion
for reconsideration of an equitable tolling decision imposes
an exacting and unreasonable standard, one that has
no place in an adjudicatory system intended to be “unusually
protective of claimants,” id. at 1204 (citations and
internal quotation marks omitted). See Sneed v.
Shinseki, 737 F.3d 719, 726-28 (Fed. Cir. 2013) (emphasizing
that the equitable tolling doctrine should not be
applied in a narrow and inflexible manner); see also
Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) (“Equity
eschews mechanical rules; it depends on flexibility.”).
Many veterans seeking equitable tolling suffer from
very significant psychiatric and physical disabilities. See,
e.g., Henderson II, 131 S. Ct. at 1201 (veteran suffered
from paranoid schizophrenia); Barrett v. Principi, 363
F.3d 1316, 1317 (Fed. Cir. 2004) (“Barrett I”) (veteran
14 DIXON v. SHINSEKI
suffered from post-traumatic stress disorder and experienced
flashbacks and hallucinations). These veterans,
moreover, are often unrepresented when they file motions
seeking equitable tolling and therefore may have difficulty
fully apprehending the prerequisites required to satisfy
the Veterans Court’s three-part equitable tolling standard.
5 See Forshey v. Principi, 284 F.3d 1335, 1357 (Fed.
Cir. 2002) (en banc) (emphasizing that an unrepresented
veteran “should not be punished for his failure to recognize
subtle factual or legal deficiencies in his claims”
(citations and internal quotation marks omitted)). To
impose a harsh and inflexible prohibition against the
introduction of clarifying evidence on motion for reconsideration
would “be both ironic and inhumane,” Barrett I,
363 F.3d at 1320, because the very conditions for which a
veteran seeks equitable tolling will not infrequently be
the same conditions which prevent him from adequately
articulating the factual and legal bases of his equitable
tolling claim. See Canales v. Sullivan, 936 F.2d 755, 758
(2d Cir. 1991) (considering a supplemental affidavit in
support of a claimant’s motion for relief from judgment on
a decision denying equitable tolling of the deadline for
appealing the denial of a Social Security disability claim
and explaining that “the very disability that forms all or
part of the basis for which the claimant seeks benefits
may deprive her of the ability to understand or act upon
5 The Veterans Court has adopted a three-part test
to determine whether equitable tolling based on extraordinary
circumstances is warranted: “First, the extraordinary
circumstance must be beyond the [veteran’s] control.
Second, the [veteran] must demonstrate that the untimely
filing was a direct result of the extraordinary circumstances.
Third, the [veteran] must exercise ‘due diligence’
in preserving his . . . appellate rights.” Checo v.
Shinseki, 26 Vet. App. 130, 133 (2013) (citations and
internal quotation marks omitted).
DIXON v. SHINSEKI 15
notice of available administrative procedures” (citations
and internal quotation marks omitted)); Nunnally v.
MacCausland, 996 F.2d 1, 5 (D.C. Cir. 1993) (emphasizing
that equitable tolling provisions should not be applied in a
manner that is contrary to the “substantive purposes” of a
remedial statutory scheme).
Significantly, the Veterans Court’s resolution of equitable
tolling claims differs markedly—in form and substance—
from its resolution of other disability claim
issues. As an appellate tribunal, the court generally does
not engage in fact-finding, but instead reviews the board’s
factual determinations for clear error. See 38 U.S.C.
§ 7261; Washington v. Nicholson, 19 Vet. App. 362, 366
(2005) (“The Board’s determination of service connection
is a question of fact that the Court reviews under the
‘clearly erroneous’ standard of review.”). In the equitable
tolling context, however, the Veterans Court must “independently
weigh the facts” and determine, on a case-bycase
basis, whether a veteran has established that a
mental or physical disability, or other circumstance
beyond his control, prevented him from filing a timely
notice of appeal. Bove, 25 Vet. App. at 143. Because the
period relevant to the equitable tolling inquiry occurs
after the board has rendered a final decision denying a
veteran’s disability claim, the Veterans Court must frequently
“seek facts outside the record before the Board” in
evaluating whether equitable tolling is warranted. Id.
Given that the Veterans Court must make equitable
tolling determinations without the benefit of a fully
developed record from the board—and must frequently
make such determinations based on the submissions from
unrepresented veterans who suffer from significant
psychiatric and physical disabilities—an initial decision
denying equitable tolling may be grounded on an incomplete
or inaccurate understanding of the extent to which a
veteran’s disability precluded him from filing a timely
notice of appeal. As McCreary recognizes, the language
16 DIXON v. SHINSEKI
used in the submissions of unrepresented veterans can
sometimes be “inartful” and fail to adequately describe
the circumstances which prevented the timely filing of a
notice of appeal. 20 Vet. App. at 91. Accordingly, in
certain circumstances, the introduction of clarifying
evidence on motion for reconsideration may be necessary
to permit the court to fully evaluate the factual predicate
of a veteran’s equitable tolling claim. See Barrett II, 466
F.3d at 1046 (emphasizing that a veteran is due a “full
and fair hearing” on his entitlement to equitable tolling).
This court is precluded from reviewing factual determinations
bearing on a veteran’s equitable tolling claim.
Leonard v. Gober, 223 F.3d 1374, 1376 (Fed. Cir. 2000).
Accordingly, a motion for reconsideration filed with the
Veterans Court generally provides a veteran with his “one
shot” to challenge the factual determinations underlying
an equitable tolling decision and to identify the “points of
. . . fact that [he] believes the Court has overlooked or
misunderstood.” Vet. App. R. 35(e)(1). Imposing an
absolute prohibition on the introduction of clarifying
evidence in situations in which such evidence is necessary
to establish that the Veterans Court “misunderstood” the
facts surrounding the untimely filing of an appeal could
therefore deprive a veteran of any meaningful opportunity
to correct any factual errors in an equitable tolling decision.
IV. Motions for Reconsideration
“[W]here litigants have once battled for the court’s decision,
they should neither be required, nor without good
reason permitted, to battle for it again.” Official Comm.
of the Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (citations
and internal quotation marks omitted). Motions for
reconsideration do not afford litigants the opportunity to
take a “second bite at the apple” or to advance arguments
that properly should have been presented in an earlier
DIXON v. SHINSEKI 17
proceeding. See Bluebonnet Sav. Bank, F.S.B. v. United
States, 466 F.3d 1349, 1361 (Fed. Cir. 2006); Lamle v.
Mattel, Inc., 394 F.3d 1355, 1359 n.1 (Fed. Cir. 2005).
Likewise, as a general rule, such motions do not provide a
vehicle for the introduction of new evidence or affidavits.
See Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d
792, 797 (Fed. Cir. 1990) (concluding that “an additional
[expert] affidavit” filed in support of a motion for reconsideration
was “untimely”); see also Navarro v. Fuji Heavy
Indus., Ltd., 117 F.3d 1027, 1032 (7th Cir. 1997) (rejecting
a litigant’s attempt to introduce a supplemental expert
report and explaining that if “judges were required to
consider evidence newly presented but not newly discovered
after judgment, there would be two rounds of evidence
in a great many cases”). Nothing in this opinion
should be interpreted as departing—in cases outside of
the equitable tolling context—from these long-established
and salutary precepts.
Even in cases involving reconsideration of a decision
denying a veteran’s request for equitable tolling, moreover,
the introduction of supplementary evidence should be
the exception rather than the rule. A claimant should
normally be expected to obtain and submit all pertinent
evidence at the time he files his equitable tolling request,
and only in limited circumstances will the introduction of
clarifying evidence be necessary for “a full and fair consideration
of [an] equitable tolling request, including
assessment of all relevant facts.” McCreary, 20 Vet. App.
at 91. But these are unusual circumstances. When Dixon
filed his original request for equitable tolling, he submitted
a very brief letter from Kielpikowski which stated
that Dixon suffered from “severe” psychiatric problems
that rendered him “unable” to file his notice of appeal in a
timely manner. J.A. 137. This letter, however, apparently
did not contain sufficient detail to enable the Veterans
Court to conclude that Dixon’s untimely filing was “the
direct result of his illnesses.” Equitable Tolling Decision,
18 DIXON v. SHINSEKI
2012 WL 3291861, at *1 (citations and internal quotation
marks omitted). Kielpikowski’s declaration (which we
have held, in section III, should have been considered by
the Veterans Court as a clarification of the earlier opinion)
provides a more comprehensive picture of Dixon’s
psychiatric problems, explaining that his mental illnesses,
which included post-traumatic stress disorder, severe
anxiety, and chronic depression, “rendered him incapable
of rational thought or deliberate decision-making.” J.A.
178. The declaration specifically concludes, moreover,
that these disabilities “directly resulted in [Dixon’s]
inability to timely file a notice of appeal with [the Veterans]
Court.” J.A. 179. There is no contrary evidence.
Under these circumstances, Dixon should have been
permitted to secure and submit his claims file that was
not submitted at the time he submitted his motion to
recall the mandate.
V. The Government’s Contentions
On appeal, the government contends that “[e]ven if
the Veterans Court erred in interpreting Rule 35 as
limiting motions for reconsideration . . . to the record at
the time of the challenged decision . . . that error was not
harmful.” We find this argument wholly unpersuasive.
As noted previously, a veteran can establish entitlement
to equitable tolling by showing that his untimely filing
was the “direct result” of physical or psychiatric illness.
Barrett I, 363 F.3d at 1321. Because Kielpikowski’s
declaration clarifies that Dixon’s psychiatric disabilities
“directly resulted in his inability to timely file a notice of
appeal with [the Veterans] Court,” J.A. 179, it is not only
highly relevant, but indeed could prove outcome determinative,
on the issue of whether equitable tolling is warranted.
6 See Wagner v. United States, 365 F.3d 1358,
6 As we have previously recognized, a VA psychiatrist
who has treated a veteran over an extended period of
DIXON v. SHINSEKI 19
1365 (Fed. Cir. 2004) (“Where the effect of an error on the
outcome of a proceeding is unquantifiable . . . we will not
speculate as to what the outcome might have been had
the error not occurred.”).
The government further contends that the Veterans
Court properly rejected Dixon’s equitable tolling claim
because there was an “inherent inconsistency” in
Kielpikowski’s original letter which stated that Dixon’s
severe physical and psychiatric disabilities rendered him
“unable to attend [to] or focus on” the filing of his appeal,
J.A. 137. In the government’s view, the fact that Dixon
was ultimately able to file a notice of appeal with the
Veterans Court, albeit an untimely one, demonstrates
that he was capable of filing a timely notice of appeal
during the “period of [his] alleged incapacity.” We find
this reasoning unconvincing. The fact that a veteran, despite severe physical or psychiatric disabilities, manages to file an untimely notice of appeal does not mean that those disabilities did not impede his ability to submit his appeal at an earlier date. The equitable tolling doctrine would be rendered a virtual nullity if the submission of an time is often “supremely qualified to make determinations of mental incapacity.” Barrett II, 466 F.3d at 1044; see also Barrett I, 363 F.3d at 1320 (emphasizing that the VA “employs a host of medical professionals” and is “uniquely qualified to facilitate the diagnosis of troubled claimants”).
Here, because Kielpikowski had treated Dixon since 2001, he was presumably highly qualified to provide an informed opinion on the extent to which Dixon’s psychiatric
and physical disabilities impeded his ability to file a notice of appeal within the 120-day filing period. See Golden v. Shinseki, No. 04-1385, 2012 WL 1765439, at *2 (Vet. App. May 18, 2012) (granting a veteran’s equitable tolling request and noting that “a VA regional office
found her depressive condition to be 100% disabling”).
20 DIXON v. SHINSEKI

untimely notice of appeal were deemed sufficient to
establish that a veteran had the capacity to file within the
120-day statutory period.

CONCLUSION
Accordingly, the judgment of the United States Court of Appeals for Veterans Claims is reversed and the case is remanded for further proceedings consistent with this opinion.
COSTS
Dixon shall have his costs.
REVERSED AND REMANDED

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