Veteranclaims’s Blog

April 21, 2014

Single Judge Application, Martin v. Shinseki, No. 09-3959, 2012 WL 2245029, at *3-4 (Vet. App. June 18, 2012); Extraordinary Circumstances

Excerpt from decision below:
“Because Mr. Price is proceeding pro se, however, the Court will permit Mr. Price an additional opportunity to supply information and evidence showing that a medically diagnosed condition rendered him “incapable of rational thought or deliberate decision making” during the appeal period or incapable of handling his affairs or functioning in society.Barrett,supra; compare Claiborne v. Nicholson, 19 Vet.App. 181, 186 (2005) (holding that medical opinions diagnosing a mental illness were not sufficient to establish that “the symptoms of his dementia have manifested in such a manner and to such an extent that his failure to file his NOA in a timely fashion was a ‘direct result’ of his medical condition”), with Martin v. Shinseki, No. 09-3959, 2012 WL 2245029, at *3-4 (Vet. App. June 18, 2012) (concluding that the ” totality of the circumstances of the appellant’s life were extraordinary” and demonstrated that “extraordinary circumstances beyond the appellant’s control during the 120-day judicial appeal period” prevented the timely filing of an NOA).
============================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2834
PHILLIP W. PRICE,
V.
APPELLANT,
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
APPELLEE.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On September 23, 2013, Phillip W. Price filed a pro se Notice of Appeal (
NOA) from an
April 24, 2013, Board of Veterans’ Appeals (Board) decision denying him
disability benefits for
headaches, a cavernous sinus tumor claimed as a brain tumor, and a heart
disorder. To be timely, Mr.
Price’s NOA should have been filed with the Court by August 22, 2013. 38 U.
S.C. § 7266(a)
(requiring an NOA to be filed with the Court within 120 days after the
Board decision is mailed).
On November 6, 2013, the Secretary filed a motion to dismiss for lack of
jurisdiction. On
December 16, 2013, Mr. Price filed a response in opposition to the
Secretary’s motion asserting that
he was unable to file a timely NOA as a result of issues with his post
office, his house, and his mail
being stolen.
On January 16, 2014, the Court ordered Mr. Price to file a response that
discussed whether
the circumstances in his case warrant the equitable tolling of the 120-day
judicial appeal period. On
February 4, 2014, Mr. Price filed a response alleging that he suffers from
a “very significant brain
injury” and is “being treated for several mental health issues.” He also
asserted that he is incapable
of handling his personal affairs as a result of his mental health problems.
Theappellantbears the ultimate burden of establishing jurisdiction.
SeeMcNuttv.G.M.A.C.,
298 U.S. 178, 189 (1936). The Court’s jurisdiction derives exclusively
from statutory grants of
authority provided by Congress and may not be extended beyond that
permitted by law. See
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988).
However, the 120-day
period to file an appeal may be equitably tolled when the appellant
demonstrates certain
circumstances falling within the parameters established in precedential
decisions pre-dating
Henderson v. Peake, 22 Vet.App. 217 (2008). Bove v. Shinseki, 25 Vet.App.
136, 140 (2011) (per
curiam). Of relevance, equitable tolling may be warranted if an
untimelyfiling “was the direct result

of a mental illness that rendered [a claimant] incapable of rational
thought or deliberate decision
making, or incapable of handling [a claimant’s] own affairs or unable to
function in society.” Id.
(quoting Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004)) (
internal quotation marks
omitted).
Mr. Price asserts that he has “mental health issues” that affect his
ability to handle his
personal affairs, but presents no evidence
demonstratingthatthesementalhealthissues led to a delay
in filing an NOA at this Court. See id. (explaining that a diagnosis alone
does not warrant equitable
tolling; rather, a veteran must demonstrate that an untimely filing “was
the direct result of a mental
illness” (emphasis added)). Because Mr. Price is proceeding pro se,
however, the Court will permit Mr. Price an additional opportunity to supply information and evidence showing that a medically diagnosed condition rendered him “incapable of rational thought or deliberate decision making” during the appeal period or incapable of handling his affairs or functioning in society.Barrett,supra; compare Claiborne v. Nicholson, 19 Vet.App. 181, 186 (2005) (holding that medical opinions diagnosing a mental illness were not sufficient to establish that “the symptoms of his dementia have manifested in such a manner and to such an extent that his failure to file his NOA in a timely fashion was a ‘direct result’ of his medical condition”), with Martin v. Shinseki, No. 09-3959, 2012 WL 2245029, at *3-4 (Vet. App. June 18, 2012) (concluding that the ” totality of the circumstances of the appellant’s life were extraordinary” and demonstrated that “extraordinary circumstances beyond the appellant’s control during the 120-day judicial appeal period” prevented the timely filing of an NOA).

On consideration of the foregoing, it is
ORDERED that, within 30 days after the date of this order, the appellant
provide a more complete explanation why the Court should not dismiss this appeal. The
appellant may support this explanation with supporting documentation as explained above.
DATED: March 27, 2014
BY THE COURT:
ROBERT N. DAVIS
Judge
Copies to:
Phillip W. Price
VA General Counsel (027)
2

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