Veteranclaims’s Blog

May 20, 2014

Single Judge Application; Checo v. Shinseki, 26 Vet.App. 130, 133 (2013); Stop-Clock to Due Diligence

Excerpt from decision below:

“The appellant bears “the burden of demonstrating that equitable tolling is warranted.” See Checo v. Shinseki, 26 Vet.App. 130, 133 (2013), rev’d and vacated in part on other grounds, No. 2013-7095, 2014 WL 1613885 (Fed. Cir. Apr. 23, 2014). Generally, equitable tolling is limited to situations where extraordinary circumstances preclude a timely filing despite the claimant’s diligence. Checo, 2014 WL 1613885, at *5 (adopting the “stop-clock approach” that an appellant “must only demonstrate due diligence during the extraordinary circumstance period”); see Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam) (explaining that the 120-day period to file an appeal may be 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)). Of relevance here, equitable tolling may be warranted if an untimely filing 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.” Bove, 25 Vet.App. at 144 (quoting Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004)).”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2834
PHILLIP W. PRICE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
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 pro se a 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 problems with his post
office and his house, and
as a result of his mail being stolen.
On January 16, 2014, the Court ordered Mr. Price to file a response
discussing 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.
On March 27, 2014, the Court ordered Mr. Price to provide, within 30 days,
a more complete
explanation as to how his “mental health issues” affect his ability to
handle his personal affairs. Mr.
Price declined to respond, and the 30-day period to respond to the Court
order ended on April 28,
2014.

The appellant bears “the burden of demonstrating that equitable tolling is warranted.” See Checo v. Shinseki, 26 Vet.App. 130, 133 (2013), rev’d and vacated in part on other grounds, No. 2013-7095, 2014 WL 1613885 (Fed. Cir. Apr. 23, 2014). Generally, equitable tolling is limited to situations where extraordinary circumstances preclude a timely filing despite the claimant’s diligence. Checo, 2014 WL 1613885, at *5 (adopting the “stop-clock approach” that an appellant “must only demonstrate due diligence during the extraordinary circumstance period”); see Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam) (explaining that the 120-day period to file an appeal may be 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)). Of relevance here, equitable tolling may be warranted if an untimely filing 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 functionin society.” Bove, 25 Vet.App. at 144 (quoting Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004)).
However, 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.'” Id. (
emphasis added).
Mr. Price vaguely asserts that he has “mental health issues” that affect
his ability to handle
his personal affairs, but presents no evidence demonstrating that he was
incapable of making
decisions or functioning as a result of these issues. Because Mr. Price
does not explain why his
mental illnesses led to a delay in filing an NOA at this Court, despite
being provided an additional
opportunity to provide such an explanation, he has failed to demonstrate
that equitable tolling of the
time to file his appeal is warranted, and the Court has no jurisdiction
over this appeal. See Bove,
supra.
On consideration of the foregoing, it is
ORDERED that Mr. Price’s appeal is DISMISSED for untimely filing.
DATED: May 14, 2014
BY THE COURT:
ROBERT N. DAVIS
Judge
Copies to:
Phillip W. Price
VA General Counsel (027)
2

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