Veteranclaims’s Blog

May 16, 2014

Single Judge Application; Solze v. Shinseki, 26 Vet.App. 118, 127 n.13 (2013); Growing Consensus Fiduciary System is Broken

Excerpt from decision below:

“Read liberally, the appellant’s pleadings reveal that she believes that her judicial appeal period should be equitably tolled because the Board sent its decision to her fiduciary and her fiduciary never informed her about its existence. Given the recently revealed evidence of dysfunction in VA’s fiduciary system and the fact that the December 2012 Board decision addressed whether the appellant is competent to handle her affairs without the aid
of a fiduciary, the Court takes the appellant’s allegations very seriously.1 See Solze v. Shinseki, 26 Vet.App. 118, 127 n.13 (2013) (Lance, J., dissenting in part) (stating that the “growing consensus outside of VA [is] that the fiduciary system is broken.”).

====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-3265
KATHY MAE BROKHAUSEN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

On November 18, 2013, the pro se appellant, Kathy Mae Brokhausen, filed a
Notice of Appeal (NOA) stating her intention to challenge a July 22, 2013,
Board of Veterans’ Appeals (Board) decision. Soon thereafter, the Secretary executed his duty to submit a copy of the challenged Board decision to the Court. The date on the Board decision submitted by the Secretary, however, was December 20, 2012. On December 23, 2013, the Secretary notified the Court that the Board did not issue a final decision to the appellant on July 22, 2013. The Secretary moved that the Court “dismiss this appeal
for lack of subject matter jurisdiction.” On January 13, 2014, the Court issued an order in which it noted that the Board “mailed its decision on December 20, 2012” and that “
the Court cannot review a Board decision unless the appellant has filed an NOA with the Court within 120 days after the Board mailed its decision. The 120th day would have been April 19, 2013.” Jan. 13, 2014, order at 1. The Court then noted that the Secretary had “moved to dismiss the instant appeal for lack of jurisdiction, asserting that the appellant had filed an untimely NOA.” Id.
The Court ordered the appellant to explain why her appeal should not be dismissed.
On January 17, 2014, the appellant responded to the Court’s order. She
wrote:
The [Board] decision was never mailed to me and I did not receive it. The
decision was mailed to my fiduciary . . . My fiduciary did not communicate directly
with me in any[]way about this decision. My fiduciary did not directly communicate
with me about anything for 7-8 months during this period. . . . I filed my appeal
immediately

upon discovering that the [Board] had made a decision. I missed the 120 day filing date through no fault of my own. I request the [Court] allow my appeal.
Appellant’s Jan. 17, 2014, Response at 1.
In a March 5, 2014, order, the Court recorded the appellant’s arguments and noted that there is no evidence that the Board issued a final decision on July 22, 2013.
The Court then explained that by law “this Court may only review final Board decisions which have been
decided against a
claimant.” March 5, 2014, order at 1. It ordered the appellant to supply a
copy of the Board decision
she seeks to appeal and explain why her appeal should not be dismissed.
The appellant responded by submitting a copy of the Court’s March 5, 2014,
order. On it,
she underlined the phrase “it was mailed to her fiduciary whom she had no
direct communications
for 7 to 8 months during that period” and wrote in the margin “I don’t
payee fiduciary Laura, Sara.”
She did not, as instructed, submit a copy of the Board decision she seeks
to appeal.
Pursuant to 38 U.S.C. § 7266(a), for a claimant to obtain review of a
Board decision by this
Court, that decision must be final and the person adversely affected by
that decision must file an
NOA within 120 days of the date on which the Board decision was mailed.
See In re Quigley, 1
Vet.App. 1 (1990). There is no evidence that the Board issued a final
decision on July 22, 2013.
Consequently, there is no final decision for the Court to review, and the
appellant’s appeal of a Board
decision issued on that date must be dismissed.
Theappellant mayhavebeenattemptingto challengetheDecember20,2012,
Boarddecision
submitted to the Court by the Secretary. If that is so, her NOA appears
not to have been filed within
120 days of that decision. In limited circumstances, however, the 120-day
time limit is subject to
equitable tolling. Bove v. Shinseki, 25 Vet.App. 136, 140 (2011).
Circumstances allowing for
equitable tolling are those “established in Bailey [v. West, 160 F.3d 1360 (
Fed. Cir. 1998) (en banc)]
and its progeny, and the precedential decisions in this Court” prior to
the U.S. Supreme Court’s
decision in Henderson v. Shinseki, 131 S. Ct. 1197 (2011). Id.
Thus, for example, equitable tolling was not applied when failure to file
was due to
general negligence or procrastination. Rather, it was applied only when
circumstances precluded a timely filing despite the exercise of due
diligence, such
as (1) a mental illness rendering one incapable of handling one’s own
affairs or other
extraordinary circumstances beyond one’s control, (2) reliance on the
incorrect
statement of a VA official, or (3) a misfiling at the regional office or
the Board. See,
e.g.,Brandenburgv.Principi,371 F.3d 1362, 1364 (Fed.Cir. 2004)(
NOAsubmitted
to the Board); Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (
mental
illness rendering one incapable of handling his own affairs); Santana-
Venegas [v.
Principi], 314 F.3d [1293,] 1298 [(Fed. Cir. 2002)] (NOA submitted to VA
regional
office); Bailey, 160 F.3d at 1365-68 (reliance on incorrect statement of a
VA
2

official); and McCreary v. Nicholson, 19 Vet.App. 324 (2005) (
extraordinary
circumstances), adhered to on reconsideration by 20 Vet.App. 86 (2006).
Id.
Read liberally, the appellant’s pleadings reveal that she believes that her judicial appeal period should be equitably tolled because the Board sent its decision to her fiduciary and her fiduciary never informed her about its existence. Given the recently revealed evidence of dysfunction in VA’s fiduciarysystem and the fact that the December 2012 Board decision addressed whether the appellant is competent to handle her affairs without the aid
of a fiduciary, the Court takes the appellant’s allegations very seriously.1 See Solze v. Shinseki, 26 Vet.App. 118, 127 n.13 (2013) (Lance, J., dissenting in part) (stating that the “growing consensus outside of VA [is] that the fiduciary system is broken.”).
However, in its December 2012 decision, the Board remanded, rather than finally decided,
the issue on appeal. Board remands are not decisions over which this Court has jurisdiction. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004); see also Howard v. Gober,
220 F.3d 1341, 1344(Fed. Cir. 2000). Therefore, even if the Court was to agree that the 120-day judicial appeal period that began to run on December 20, 2012, should be equitably tolled, it cannot take jurisdiction over the Board’s December 2012 decision.
It is, therefore,
ORDERED that the Secretary’s December 23, 2013, motion is granted and this
appeal is
DISMISSED.
DATED: April 24, 2014
BY THE COURT:
CORAL WONG PIETSCH
Judge
Copies to:
Kathy Mae Brokhausen
VA General Counsel (027)
The Court hopes that the Secretary will agree that he should view the
appellant’s allegations as a sign that
something may be amiss in her relationship with her fiduciary.
1
3

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