Veteranclaims’s Blog

August 9, 2015

Single Judge Application; Equitable Tolling; Toomer v. McDonald, 783 F.3d 1229, 1238-39 (2015)

Excerpt from decision below:

“To benefit from equitable tolling of the appeal period, an appellant must
demonstrate three elements: (1) Extraordinary circumstance, (2) due diligence, and (3) causation. Toomer v. McDonald, 783 F.3d 1229, 1238-39 (2015). The appellant has asserted that tolling is warranted
based on his pursuit of an appeal when he visited the RO twice during the
120-day appeal period, his Form 4138, and the affirmative misstatements of RO employees regarding his appellate rights,as well as the RO’s statements that he would be called for an appointment, and the October 27, 2014, meeting with the VLJ. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998) (holding that veteran was entitled to equitable tolling where he “was mislead by the conduct of his adversary into allowing the deadline to pass”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-0512
WILLIAM B. SMITH,
V.
APPELLANT,
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS,
APPELLEE.
Before MOORMAN, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
The Board of Veterans’ Appeals (Board) mailed its January 29, 2014,
decision on the date
of its decision. The appellant filed a motion for reconsideration with the
Board on October 31, 2014,
more than 120 days after the Board mailed its decision. The 120th day was
May 29, 2014. The
BoardChairmandeniedthe motion on December 10, 2014. The appellant’s Notice
of Appeal (NOA)
from the Board Chairman’s denial was filed on February 9, 2015. On March
20, 2015, the Court
ordered the appellant to show cause why his appeal should not be dismissed
based on his filing of
an untimely NOA. See 38 U.S.C. § 7266(a) (requiring an NOA to be filed
with the Court within 120
days after the Board decision is mailed); Henderson v. Shinseki, 562 U.S.
428 (2011) (recognizing
that section 7266(a)’s 120-day limit is “an important procedural rule”).
In response to the Court’s order, Mr. Smith explained that he diligently
pursued judicial
remedies. In his April 6, 2015, response, he asserts that, within 120 days
after the mailing of the
January 2014 Board decision, he went to the VA Winston-Salem regional
office (RO) twice– on
March 4, 2014, and April 14, 2014– requesting assistance in filing an
appeal to the Court. April 6,
2015, Appellant’s Response at 1. On March 4, 2014, he was told by two ”
interview officials” and
by an “interview supervisor,” Cindy Grover, that he had “no further appeal
rights after the B[oard]
denial.” He states that, at that time, he filled out VA Form 21-4138 (”
Statement in Support of
Claim)” and asked for an appointment with the director. After receiving no
response, he again went
to the RO on April 14, 2014, asked to speak with the director and “was
again told [that] they would
call me for an appointment.” He further asserts: “Finally, I was called
and asked if I wanted to talk
in person to a traveling judge from the [Board]. I accepted the
appointment for approximately
October 27, 2014.” The appellant asserts that the veterans law judge(VLJ)
informed him that he had
missed the deadline for filing his appeal and informed him that she had ”
researched my records and

saw that I had been to the [RO] twice before the deadline and not given
the right information to
appeal to the [Court].” She suggested that the veteran could ask for
reconsideration of his decision
at the Board, and he did so on October 30, 2014.
On May 5, 2015, the Court ordered the Secretary to respond to Mr. Smith’s
contentions and
provide, for the period from March 1, 2014, through October 31, 2014,
copies of documents in his
claims file and of anyVA Form 21-4138 from Mr. Smith, VA contact documents
evidencing phone
or in-person communications between RO employees and Mr. Smith, and sign-
in sheets maintained
by the RO for in-person visits. See Barrett v. Nicholson, 466 F.3d 1038,
1044-45 (Fed. Cir. 2006)
(discussing the Government’s duty to provide assistance during the
judicial review process). On
May21, 2015, the Secretaryfiled a response recognizing that, during the
appeal period, the RO date-
stamped a VA Form 21-4138 from Mr. Smith that noted Mr. Smith’s request to
appeal the January
2014 Board decision, and asserting that the Court should apply equitable
tolling. The Secretary
attaches a copy of the VA Form 21-4138, which is dated March 4, 2014, and
stated:
I hereby appeal the Board of Veterans[‘] Appeal decision dated 29 January
2014
denying my bilateral right and left hand condition. I also appeal the
Board’s decision
to deny my request to back date my radiculpathy of right and left upper
extremity
conditions to 1 Oct 2000.
May 21, 2015, Secretary’s Response, Exhibit 1. The Secretary also
acknowledged that Mr. Smith’s
claims file on VA’s electronic Veterans Benefits Management System
contains another document
submitted to the RO on March 4, 2014, that also states Mr. Smith’s intent
to appeal the Board
decision. Id. at Exhibit 2. In addition, a “Contact Note” (in the claims
file or electronic records
system) dated March 10, 2014, from Ginny M. Grover noted that she met with
Mr. Smith on March
4,2014,andstated:”4138received 3/4/14 andcopyoftheVBA[(Veterans
BenefitAdministration)]
letter with remand is being forwarded to attention of Appeals Coach L.
Tilley per request.” Id.,
Exhibit 3.
Pursuant to 38 U.S.C. § 7266(a), in order for a claimant to obtain review
of a Board decision
bythis Court, the person adverselyaffected bythat decision shall submit an
NOA to the Court within
120 days of the date on which notice of the Board’s decision was mailed.
See In re Quigley,
1 Vet.App. 1 (1990). In Bove v. Shinseki, this Court held that the ”
important procedural rule” in
section 7266(a)is subject to equitable tolling in certain limited
circumstances. 25 Vet.App.136,140
(2011) (per curiam order). Where an appellant files a motion for Board
reconsideration within 120
days after the mailing date of the Board decision and then files an NOA
within 120 days after the
Board Chairman’s denial of the reconsideration motion, the NOA is
considered timely filed. See
Rosler v. Derwinski, 1 Vet.App. 241, 245 (1991). If an appellant, however,
does not meet the first
condition, i.e., filing a motion for Board reconsideration within 120 days
after the Board mailed its
underlying decision, the mere fact that the veteran filed her NOA within
120 days of the Board
Chairman’s denial of reconsideration does not render her NOA timely. This
is because a Board
Chairman’s denial of reconsideration is not a separate Board decision that
can be appealed to this
Court. See Mayer v. Brown, 37 F.3d 618 (Fed. Cir.1994); Cintron v. West,
13 Vet.App. 251, 254
2

(1999) (holding that the Court may not review denials of reconsideration
by the Board Chairman in
cases where it does not already have jurisdiction by virtue of a timely
appeal from a final Board
decision).
The appellant filed a motion for reconsideration of the Board’s January
2014 decision.
Although the appellant filed an NOA with the Court, in February 2015,
within 120 days of the
Board’s denial of the motion for reconsideration, the Board received the
appellant’s motion for
reconsideration on October 31, 2014, more than 120 days after the Board’s
decision. Because the
appellant did not file the motion for Board reconsideration within 120
days of the Board’s decision,
the Court considers whether equitable tolling of the period prior to
October 31, 2014, is warranted.
See Rosler, supra.
To benefit from equitable tolling of the appeal period, an appellant must
demonstrate three
elements: (1) Extraordinary circumstance, (2) due diligence, and (3)
causation. Previous DocumentToomerNext Document v.
McDonald, 783 F.3d 1229, 1238-39 (2015). The appellant has asserted that
tolling is warranted
based on his pursuit of an appeal when he visited the RO twice during the
120-day appeal period,
his Form 4138, and the affirmative misstatements of RO employees regarding
his appellate rights,
as well as the RO’s statements that he would be called for an appointment,
and the October 27, 2014,
meeting with the VLJ. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir.
1998) (holding that
veteran was entitled to equitable tolling where he “was mislead by the
conduct of his adversary into
allowing the deadline to pass”). The Court need not address the asserted
affirmative misstatements
of RO employees as a basis for tolling the judicial-appeal period because
Mr. Smith’s Form 4138
clearly shows his intent to appeal the January 2014 Board decision, and it
was submitted to the RO
within the 120-day judicial-appeal period. Santana-Venegas v. Principi,
314 F.3d 1293, 1298 (Fed.
Cir. 2002) (applying equitable tolling where appellant filed his NOA
within the 120-dayperiod with
the same VA regional office where he filed his original claim); see Durr v.
Nicholson, 400 F.3d
1375, 1380-81 (Fed. Cir. 2005) (discussing principle requiring NOA to be
liberally construed); see
also May 21, 2015, Secretary’s Response at 4 (“In this case, Appellant
misfiled [an NOA] at the
VARO from which the claim originated.”).
Accordingly, Mr. Smith timely misfiled his NOA at the RO, and has
demonstrated that he
diligently pursued judicial remedies, as shown by his subsequent visit to
the RO and his meeting
with a VLJ, as well as his motion for reconsideration by the Board in
October 2014. The Court
concludes thatequitabletollingis warranted,andMr.Smith’s NOAshall
bedeemedtimelyfiledwith
the Court. See Santana-Venegas, supra; see also Ratliff v. Shinseki, 26
Vet.App. 356, 361 (2013)
(holding that August 2008 letter submitted to RO “was an NOA that was not
filed at the Court but
that served to abate the finality of the July 2008 Board decision for
purposes of appeal to the Court”
and the finality “remained abated when she filed an October 2011 NOA with
the Court”).
The Court finds particularly inexplicable the RO’s conduct in allowing Mr.
Smith’s Form
4138 to languish in the claims file and the RO’s failure either to forward
the Form 4138 to this Court
3

or return it to Mr. Smith with an explanation that he should mail it
directlyto this Court.1
The March
4,2014,submissionto theRO, as the Secretaryacknowledges, made ”
abundantlyclear[Mr. Smith’s]
desire to appeal the January 29, 2014, Board decision.” Yet, the RO took
no action with regard to
the clearly marked NOA. More than 12 years ago, the U.S. Court of Appeals
for the Federal Circuit
in Santana-Venegas reminded the Secretary that veterans, such as Mr. Smith,
rely on the
nonadversarial and pro-claimant character of the veterans benefits system,
and stated:
It is not unreasonable for veterans to rely on the VA to fully comply with
the
comprehensive policies adopted by the agency including the duty to assist
timely.
See 38 U.S.C. § 7721(a) (“ensuring that all veterans . . . are provided
timely and
appropriate assistance to aid and encourage them in applying for and
obtaining such
benefits and services”); Dep’t of Veterans Affairs Procedure Manual,
M21–1, Part III
§ 11.02 (indicating that all correspondence must be acknowledged or
answered
within ten days of receipt). Such policies provide reasonable assurances
that even
misdirected mail will be forwarded or returned in due course and that
proceedings
will not be unduly delayed even where papers are inadvertently misfiled,
provided
they are misfiled at the same VARO from which the claim originated.
314 F.3d at 1298.
The consequences of the RO’s failure to act on the March 4, 2014, Form
4138 that was a clear
expression of Mr. Smith’s intent to appeal the Board’s decision included,
most significantly, not only
a lack of due respect for this Court’s authority over appeals from Board
decisions, but the delay of
judicial-review proceedings on Mr. Smith’s appeal by more than one year.
Accordingly, the Court
will specifically direct the Secretary to show cause within 15 days of the
date of this order, why the
Secretary should not be subject to sanctions for disregard of his duty to
take necessary action in
response to an appeal from a Board decision submitted to the RO by a
claimant. See Groves v.
McDonald, 27 Vet.App. 168 (2014); Harvey v. Shinseki, 24 Vet.App. 284 (
2011); Pousson v.
Shinseki, 22 Vet.App. 432 (2009); see also Nat’l Org. of Veterans
Advocates, Inc. v. Sec’y of
Veterans Affairs, 710 F.3d 1328 (Fed. Cir. 2013). In addition, the
Secretary is to inform the Court
as to any relevant regular process used bythe Secretarywhen a document,
such as the one submitted
by Mr. Smith that clearly states an intent to appeal a Board decision, is
received by the Agency. Cf.
Ratliff, 26 Vet.App. at 360 (explaining that it is the Secretary’s policy
to treat “every expression of
disagreement with a Board decision as a possible motion for Board
reconsideration,” to forward the
communication to the Board, and to notify the claimant that it has been
forwarded to the Board)
(emphasis added).
While considering whether sanctions are warranted, the Court will not
delay judicial
appellate proceedings on the merits of Mr. Smith’s appeal.
In addition, it is unclear to the Court why Mr. Smith’s March 4, 2014,
Form 4138 was not acted on by VA
when Mr. Smith’s file was reviewed at the time of his October 27, 2014,
meeting with the VLJ or, thereafter, on
December 10, 2014, when the Board denied his motion for reconsideration.
1
4

On consideration of the foregoing, it is
ORDERED that the appellant’s NOA received by the Court on February 9, 2015,
is timely
filed. It is further
ORDERED that the Secretary, not later than 30 days after the date of this
order, serve Mr.
Smith with a copy of the record before the agencyand file the appropriate
notice with the Court. See
U.S. VET. APP. R. 10. It is further
ORDERED that the Secretary, not later than 15 days after the date of this
order, show cause
whysanctions are not in order for the failure to take anyaction on Mr.
Smith’s March 4, 2014, appeal
to this Court. The Secretary shall include information explaining any
policy or practice regarding
the processing of documents that clearly seek an appeal from a Board
decision. The Secretary is
advised to support his response with appropriate affidavits from Agency
officials involved in this
case as necessary.
DATED: June 11, 2015
BY THE COURT:
WILLIAM A. MOORMAN
Judge
Copies to:
William B. Smith
VA General Counsel (027)
5

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