Toomer v. McDonald , 783 F.3d 1229 ( 2015 )


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  •   United States Court of Appeals
    for the Federal Circuit
    ______________________
    HARVEST O. TOOMER,
    Claimant-Appellant
    v.
    ROBERT A. MCDONALD,
    SECRETARY OF VETERANS AFFAIRS,
    Respondent-Appellee
    ______________________
    2014-7045
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 09-4086, Chief Judge Bruce E.
    Kasold.
    ______________________
    Decided: April 21, 2015
    ______________________
    ETHAN LEE, Fenwick & West, LLP, Mountain View,
    CA, argued for claimant-appellant. Also represented by
    LAWRENCE T. KASS, Milbank, Tweed, Hadley & McCloy,
    LLP, New York, NY.
    TARA K. HOGAN, Commercial Litigation Branch, Civil
    Division, United States Department of Justice,
    Washington, DC, argued for respondent-appellee. Also
    represented by LOREN MISHA PREHEIM, STUART F. DELERY,
    ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.;
    CHRISTA A. SHRIBER, Y. KEN LEE, CHRISTINA LYNN GREGG,
    2                                      TOOMER   v. MCDONALD
    Office of General Counsel, United States Department of
    Veterans Affairs, Washington, DC.
    ______________________
    Before REYNA, CLEVENGER, and WALLACH, Circuit Judges.
    Opinion for the court filed by Circuit Judge WALLACH.
    Dissenting opinion filed by Circuit Judge REYNA.
    WALLACH, Circuit Judge.
    Appellant Harvest O. Toomer appeals an order of the
    United States Court of Appeals for Veterans Claims
    (“Veterans Court”) dismissing his appeal as untimely
    filed. See Toomer v. Shinseki, No. 09-4086 (Vet. App.
    Sept. 6, 2013) (Appellant’s App. (“App.”) 1–5) (the
    “Order”); see also In re Toomer, No. 05-24 637A (Bd. of
    Veterans Affairs June 2, 2009) (App. 13–20) (the “Board
    Decision”). For the reasons set forth below, this court
    affirms.
    BACKGROUND
    Mr. Toomer served in the United States Army on
    active duty from August 1971 to August 1974. Mr.
    Toomer sought veterans benefits for degenerative disc
    disease, which he contended was “causally related to an
    in-service back strain from lifting heavy objects in August
    1972.” Board Decision at 4. In September 2004, a
    Regional Office of the United States Department of
    Veterans Affairs (“VA”) denied the claim.
    In 2009, the Board of Veterans’ Appeals (the “Board”)
    also denied the claim because it found Mr. Toomer’s
    injuries were not service-connected. In doing so, the
    Board relied on a 2007 VA examination, finding that
    although Mr. Toomer was treated for a back strain during
    service in August 1972, there was no objective evidence
    from subsequent clinical visits to indicate his current
    back pain was connected to the August 1972 injury; that
    TOOMER   v. MCDONALD                                       3
    an August 1972 x-ray was within normal limits (with the
    exception of minimal scoliosis); and that “after January
    1973, there were no further complaints of back pain
    during the remainder of [Mr. Toomer’s] service.” Id. at 6.
    The examiner also reported “given the Veteran’s age and
    potential post-service spine injuries, particularly when
    considering his post-service occupational duties as a
    construction worker, which placed him at risk for spine
    trauma, there was no objective evidence to support his
    claim.” Id. The Board also relied on a subsequent 2009
    VA examination by a specialist who found Mr. Toomer’s
    “current back disabilities were not related to service.” Id.
    at 7. According to the Board, the Board Decision was sent
    to Mr. Toomer on June 2, 2009.
    On July 27, 2009, however, Mr. Toomer informed the
    VA by telephone that he had not yet received the Board
    Decision. He was informed a decision had already been
    entered and another copy would be mailed to him. On
    August 4, 2009, the VA mailed a cover letter to Mr.
    Toomer with a date-stamp of “AUG 04 2009,” stating:
    On June 2, 2009, the [Board] entered a decision in
    your appeal, a copy of which was mailed to your
    most recent address of record at that time.
    However, on July 27, 2009, you informed VA that
    you had not yet received your copy.
    I am furnishing you with another copy of the
    Board’s June 2, 2009 decision.
    App. 24 (emphasis added). Along with this letter, the VA
    enclosed: (1) a copy of the VA’s cover letter to Mr. Toomer
    hand-dated “6/02/09,” App. 12; (2) a copy of the Board’s
    June 2, 2009 decision, also hand-dated “6/02/09” with a
    stamped “FILE COPY” over the signature block, App. 13–
    20; and a copy of VA Form 4597 (“Form 4597”), which is a
    notice of appellate rights, stating the veteran has “120
    days from the date this decision was mailed to you (as
    shown on the first page of this decision) to file a Notice of
    4                                    TOOMER   v. MCDONALD
    Appeal,” App. 21 (emphasis added). On October 28, 2009,
    more than 120 days from the date of the June 2, 2009,
    Board Decision, but within 120 days of the August 4,
    2009, letter, Mr. Toomer filed a notice of appeal with the
    Veterans Court.
    On April 14, 2010, the Veterans Court dismissed Mr.
    Toomer’s appeal as untimely after determining it was
    filed outside the 120-day appeal period established by 
    38 U.S.C. § 7266
    (a) (2006), which the court found to be
    jurisdictional and therefore not subject to equitable
    tolling. Mr. Toomer appealed to this court, which stayed
    his appeal pending the United States Supreme Court’s
    decision in Henderson v. Shinseki, 
    562 U.S. 428
     (2011). In
    Henderson, the Court reversed this court, concluding the
    120-day period to file a notice of appeal to the Veterans
    Court is not jurisdictional. 
    Id. at 438
    . As a consequence,
    both the Veterans Court and this court have treated the
    filing period as subject to equitable tolling. See, e.g.,
    Sneed v. Shinseki, 
    737 F.3d 719
    , 726 (Fed. Cir. 2013);
    Bove v. Shinseki, 
    25 Vet. App. 136
    , 139 (2011). In
    Henderson, the Court reversed this court, concluding the
    120-day period to file a notice of appeal to the Veterans
    Court is not jurisdictional and is therefore subject to
    equitable tolling. 
    Id. at 438
    . Accordingly, on May 25,
    2011, this court granted the VA’s unopposed motion to
    vacate and remand for further adjudication. Toomer v.
    Shinseki (Toomer I), 424 F. App’x 950 (Fed. Cir. 2011)
    (unpublished).
    On remand, on January 20, 2012, the Veterans Court
    ordered Mr. Toomer to show cause why his appeal should
    not be dismissed for failure to file within the 120-day
    period. In response, Mr. Toomer argued (1) there was
    “clear evidence” the VA did not mail the Board Decision in
    June 2009 because Mr. Toomer contacted the VA in July
    2009 to inform the VA he had not received it, and the VA
    was “unable to show that the Board decision was properly
    mailed,” App. at 55 (capitalization omitted); (2) the VA’s
    TOOMER   v. MCDONALD                                        5
    mailing of an unsigned copy of the Board Decision in
    August violated agency procedures; and (3) in the
    alternative, his filing should have been equitably tolled
    because Mr. Toomer acted with reasonable diligence when
    he contacted the VA regarding the status of his claim
    before expiration of the 120-day period, and because Form
    4597 misled him into believing his notice of appeal could
    be filed within 120 days of the August mailing. In
    response to a separate order, the VA submitted evidence
    that (1) the Board Decision was mailed to Mr. Toomer’s
    last known address on June 2, 2009, and (2) the mailing
    was not returned as undeliverable.
    On March 12, 2012, the Veterans Court again
    dismissed Mr. Toomer’s appeal as untimely filed. Toomer
    v. Shinseki, No. 09-4086, 
    2012 WL 762844
    , (Vet. App.
    Mar. 12, 2012) (Appellee’s App. (“Supp. App.”) 1–3). The
    court considered Mr. Toomer’s proffered evidence that the
    VA had not mailed the Board Decision on June 2, 2009,
    but found it did not rise to the level of clear evidence
    necessary to rebut the presumption of regularity. Supp.
    App. 2 (“Although the appellant’s informing a VA
    representative in July that he had not received the
    decision provides some evidence that he did not receive
    the decision in June, it does not constitute clear evidence
    that the decision was not mailed to the proper address in
    June, especially in light of the evidence provided by the
    Secretary, which includes a sworn affidavit that the
    decision was mailed to the appellant’s last known address
    and also to his veterans service representative on the date
    of decision, and computer screenshots of the Board’s
    computerized tracking system noting that a cover letter
    was created on June 1, and the appeal decided on June
    2.”). The court also acknowledged the 120-day period for
    filing a notice of appeal is not jurisdictional, but found Mr.
    Toomer had failed to demonstrate his circumstances were
    extraordinary, and therefore warranting equitable tolling.
    6                                      TOOMER   v. MCDONALD
    On a second appeal to this court, the Veterans Court’s
    decision was again vacated and remanded after this court
    found the Veterans Court erred by failing to consider Mr.
    Toomer’s evidence as a whole in deciding whether he
    rebutted the presumption of regularity.          Toomer v.
    Shinseki (Toomer II), 524 F. App’x 666, 669 (Fed. Cir.
    2013) (unpublished) (“[T]he Veterans Court must first
    consider the totality of the evidence the veteran presents
    to rebut the presumption, and then, if the Veterans Court
    determines it rises to the level of clear evidence, consider
    if the government has shown by the preponderance of the
    evidence that the challenged action actually occurred.”).
    This court noted Mr. Toomer’s contacting the VA “is
    certainly relevant to the question of whether the VA
    mailed the decision in June,” but “does not . . . alone rise
    to the level of clear evidence of irregularity.”         
    Id.
    However, this court noted the mailing of the second
    courtesy copy of the Board Decision was “at least some
    evidence that [the] first mailing was irregular” and,
    because “[t]he irregularities in the second mailing should
    have been considered when the Veterans Court weighed
    Toomer’s evidence of rebuttal of the presumption of
    regularity,” and because the court “failed to consider
    Toomer’s evidence separately from the [VA’s],” this court
    remanded. 
    Id. at 670
    . This court declined to reach Mr.
    Toomer’s alternate equitable tolling argument, stating if
    on remand “the Veterans Court concludes that Toomer
    did not overcome the presumption of regularity, then
    Toomer would not be entitled to equitable tolling because
    he cannot show that the government violated its
    procedures with regard to his Board decision.” 
    Id.
    On remand, the Veterans Court issued the September
    6, 2013 Order now before this court, again dismissing Mr.
    Toomer’s appeal as untimely. In doing so, the court
    explained “Mr. Toomer has not submitted clear evidence
    of irregularity in the VA’s normal mailing procedures,
    such that he fails to rebut the presumption that his June
    TOOMER   v. MCDONALD                                      7
    2, 2009, Board decision was mailed to him on the date of
    issuance.” Order at 2. The court considered Mr. Toomer’s
    rebuttal evidence (i.e., that he informed the VA in July
    2009 that he had not received the Board Decision and the
    VA had mailed him an unsigned, hand-dated Board
    Decision in August 2009), but found his “assertion of
    nonreceipt in July does not alone rise to the level of clear
    evidence.” 
    Id. at 3
    . In addition, “while Mr. Toomer’s
    August receipt of an unsigned, hand-dated Board decision
    is some evidence that the original decision might not have
    been finalized or mailed on June 2, it does not rise to the
    level of clear evidence of irregularity.” 
    Id. at 3
    . In sum,
    the court concluded, Mr. Toomer’s evidence amounted to
    “an assertion of nonreceipt that could be the result of
    many factors other than the failure to mail the Board
    decision, including, for example, faulty memory or
    misplacement of delivered mail by a third party.” It also
    found “receipt of an unsigned, hand-dated copy of the
    Board decision . . . sheds little light on whether the
    original Board decision was signed, dated, and mailed
    when issued.” 
    Id.
    The Veterans Court took note of this court’s statement
    that equitable tolling could not be demonstrated if Mr.
    Toomer could not rebut the presumption of regularity, but
    stated “this statement presumably was made in the
    context of the arguments presented by Mr. Toomer at the
    Federal Circuit” and “should not [be] viewed as an
    absolute holding in this case or one that bars equitable
    tolling in all cases involving the presumption of regularity
    associated with mailing a Board decision.” 
    Id. at 4
    . As to
    Mr. Toomer’s assertion that he acted diligently by
    inquiring about the status of his claim, the court agreed
    this reflected some diligence, but “at the same time,”
    when he contacted the VA Mr. Toomer also learned a
    decision had been made on June 2, 2009, a copy of which
    would be sent to him. 
    Id.
    8                                      TOOMER   v. MCDONALD
    Regarding the copy Mr. Toomer received, the court
    noted the cover letter stated the original Board Decision
    was rendered on June 2, 2009, and this mailing contained
    “another copy.” 
    Id.
     As to the purportedly misleading
    language of Form 4597, the court said Mr. Toomer’s
    argument reflected a misrepresentation by omission of the
    information on that form, “which not only states, as Mr.
    Toomer notes, that ‘[y]ou have 120 days from the date this
    decision was mailed to you,’ but also states immediately
    thereafter ‘(as shown on the first page of this decision) to
    file a Notice of Appeal with the Court.’ As noted above,
    the date on the first page of the decision received by Mr.
    Toomer in August is ‘6/02/09.’” 
    Id.
     at 4–5. The court also
    noted Mr. Toomer failed to identify any factor preventing
    him from filing a timely appeal, “such as reliance on the
    incorrect statement of a VA official, a physical or mental
    illness preventing filing, or a timely misfiling at certain
    VA entities, which generally is required to warrant
    equitable tolling.” 
    Id.
     at 5 (citing Bove, 25 Vet. App. at
    140). Therefore, the court concluded, “Mr. Toomer fails to
    demonstrate that he followed [Form 4597], that the
    instructions therein were confusing or misleading, or that
    the totality of his circumstances otherwise demonstrates
    that he was precluded from filing his [notice of appeal] in
    a timely manner.” Id.
    In response to the Order, on September 17, 2013, Mr.
    Toomer submitted a Freedom of Information Act (“FOIA”)
    Request to the VA requesting the Board’s procedures
    pertaining    to   mailing    documents    to   veterans.
    Specifically, Mr. Toomer requested (1) an internal Board
    manual, titled the “Outcode & Dispatch Procedural
    Manual” (“Dispatch Manual”), referenced by the VA in
    Mr. Toomer’s first appeal before the Federal Circuit, and
    (2) all VA “manuals, publications, instructions, or
    documents related to procedures used to send documents
    to veterans.” App. 67. In response, on September 24,
    2013, the VA provided the Dispatch Manual.
    TOOMER   v. MCDONALD                                       9
    Mr. Toomer moved for panel review of the Order on
    September 27, 2013, arguing the Veterans Court erred in
    its presumption of regularity and equitable tolling
    analyses. The panel granted the motion, but ordered that
    the original single-judge Order remain the decision of the
    court. Mr. Toomer timely appeals.
    DISCUSSION
    I. Jurisdiction and Standard of Review
    This court’s jurisdiction to review decisions of the
    Veterans Court is limited by statute. Pursuant to 
    38 U.S.C. § 7292
    (a), this court has jurisdiction to review “the
    validity of a decision of the [Veterans] Court on a rule of
    law or of any statute or regulation . . . or any
    interpretation thereof (other than a determination as to a
    factual matter) that was relied on by the [Veterans] Court
    in making the decision.” Except to the extent that a
    constitutional issue is presented, this court may not
    review “a challenge to a factual determination,” or “a
    challenge to a law or regulation as applied to the facts of a
    particular case.” 
    Id.
     § 7292(d)(2)(A)–(B). The Veterans
    Court’s legal determinations are reviewed de novo.
    Cushman v. Shinseki, 
    576 F.3d 1290
    , 1296 (Fed. Cir.
    2009).
    II. The Veterans Court Properly Found Mr. Toomer Failed
    to Overcome the Presumption of Regularity
    Under 
    38 U.S.C. § 5104
    (a), “the Secretary [of the VA]
    shall, on a timely basis, provide to the claimant (and to
    the claimant’s representative) notice of [its] decision
    [affecting the provision of benefits].” In addition, 
    38 U.S.C. § 7104
    (e)(1) provides: “After reaching a decision on
    a case, the Board shall promptly mail a copy of its written
    decision to the claimant at the last known address of the
    claimant,” as well as to his or her “authorized
    representative,” 
    id.
     § 7104(e)(2)(A).
    10                                        TOOMER   v. MCDONALD
    In fulfilling these statutory directives, the Secretary is
    presumed to have properly discharged his official duties
    under the “presumption of regularity.” See Sickels v.
    Shinseki, 
    643 F.3d 1362
    , 1366 (Fed. Cir. 2011) (“The
    presumption of regularity provides that, in the absence of
    clear evidence to the contrary, the court will presume that
    public officers have properly discharged their official
    duties.” (quoting Rizzo v. Shinseki, 
    580 F.3d 1288
    , 1292
    (Fed. Cir. 2009)). Thus, the presumption is overcome only
    in the face of “clear evidence to the contrary.” Parks v.
    Shinseki, 
    716 F.3d 581
    , 584 (Fed. Cir. 2013) (quoting
    Rizzo, 
    580 F.3d at 1292
    ).
    Here, Mr. Toomer does not directly challenge the
    Veterans Court’s finding that he failed to overcome the
    presumption of regularity. Rather, he argues the court
    erred during the panel review phase in failing to find the
    VA breached its duty under Barrett v. Nicholson, 
    466 F.3d 1038
     (Fed. Cir. 2006), to provide him with available
    jurisdictional evidence that he argues would have aided
    him in rebutting the presumption. This argument was
    first presented in a footnote to his petition for panel
    review.
    In Barrett, this court defined the VA’s duty “in
    developing the record before the Veterans Court on the
    issue of equitable tolling.” 
    Id. at 1041
    . This court held
    where
    a veteran alleges facts to show entitlement to
    equitable tolling . . . and jurisdiction is called into
    question, . . . the government must assist the court
    by providing and, where necessary, procuring
    further evidence helpful in deciding jurisdiction,
    e.g., declarations, new medical examinations, and
    other forms of evidence as appropriate.
    
    Id. at 1044
     (emphasis added). The court also clarified
    “[t]he government shall make these submissions on its
    own initiative, upon request of the veteran, or as required
    TOOMER   v. MCDONALD                                     11
    by the Veterans Court,” and “[i]f a veteran makes such a
    request, the government may advert to the court for a
    determination that it is reasonably necessary to deciding
    the jurisdictional issues before it.” 
    Id.
    Mr. Toomer appears to link the duty identified in
    Barrett to the VA’s alleged failure to respond fully to his
    FOIA request for Board policies regarding the mailing of
    decisions.    Mr. Toomer claims he “clearly raised a
    jurisdictional issue” by arguing there was sufficient
    evidence to rebut the presumption the VA mailed the
    Board Decision in June 2009. Appellant’s Br. 19. Mr.
    Toomer points out that once the Veterans Court
    determined he had not shown clear evidence to rebut the
    presumption, he filed his FOIA request, and the VA
    breached its Barrett duty by failing to provide a complete
    response to this request. Thus, Mr. Toomer argues, the
    Veterans Court erred by failing to “address the VA’s
    failure to provide an adequate response” to the FOIA
    request in its decision upon panel review. Appellant’s Br.
    21. For this reason, Mr. Toomer believes a remand is
    necessary for the VA to fully respond to Mr. Toomer’s
    request for jurisdictional evidence.
    The government responds that “[w]hether the VA
    complied with its obligation to respond to a FOIA request
    is a matter outside of the Veterans Court’s jurisdiction”
    because review of an agency’s compliance with a FOIA
    request is vested in the district courts by statute.
    Appellee’s Br. 17–18 (citing 
    5 U.S.C. § 552
    (a)(4)(B)). And,
    in any event, the VA properly responded to the FOIA
    request; specifically, the government claims, with regard
    to the policy documents related to mailing Board decisions
    to veterans, which are the only “potentially relevant
    jurisdictional evidence in this case,” “an exhaustive search
    for relevant documents . . . revealed only two: (1) the
    Dispatch Manual . . . , and (2) the Board’s ‘Office of
    Management, Planning and Analysis Correspondence
    Guide,’ which was issued in September 2011.” 
    Id.
     at 18–
    12                                      TOOMER   v. MCDONALD
    19. The VA therefore insists it properly responded to Mr.
    Toomer’s request because (1) this case arises from events
    that took place in 2009, thus the 2011 document would
    not have assisted Mr. Toomer, and (2) the Dispatch
    Manual was provided to Mr. Toomer on September 24,
    2013. 
    Id. at 19
    .
    To the extent Mr. Toomer challenges the Veterans
    Court’s finding that Mr. Toomer failed to overcome the
    presumption of regularity with clear evidence, there is no
    legal error. As directed in Toomer II, the Veterans Court
    was required to “first consider the totality of the evidence
    the veteran presents to rebut the presumption, and then,
    if the Veterans Court determines it rises to the level of
    clear evidence, consider if the government has shown by
    the preponderance of the evidence that the challenged
    action actually occurred.” Toomer II, 524 F. App’x at 669;
    see also Crain v. Principi, 
    17 Vet. App. 182
    , 188 (2003)
    (The Veterans Court is “required to make an independent
    determination whether the record contains clear evidence
    of sufficient weight to rebut the presumption of regularity
    and whether the Secretary has presented evidence
    showing that he complied with his mailing obligation
    under the statute or that there was actual receipt.”). The
    Veterans Court properly followed this directive on
    remand.
    In particular, the Veterans Court found the fact that
    Mr. Toomer notified the VA in July 2009 that he had not
    received the decision did not alone rise to the level of clear
    evidence of a deficiency in mailing.           Order at 3.
    Furthermore, as to Mr. Toomer’s evidence that the Board
    Decision he received in the August 4, 2009 mailing was
    unsigned and hand-dated, the court acknowledged this
    may be “some evidence that the original decision might
    not have been finalized or mailed on June 2,” but “does
    not rise to the level of clear evidence of irregularity,”
    particularly since this was a “file copy” and not the
    original decision. 
    Id.
     That is, the “receipt of an unsigned,
    TOOMER   v. MCDONALD                                    13
    hand-dated copy of the Board decision . . . sheds little
    light on whether the original Board decision was signed,
    dated, and mailed when issued.” 
    Id.
     In sum, the court
    concluded, “[t]ogether, Mr. Toomer’s evidence, accepted on
    its face, shows only that he does not recall receiving the
    original Board decision, and that he later was provided a
    copy of the Board decision that was unsigned and hand
    dated.” 
    Id.
     There is no discernable legal error in this
    analysis.     Indeed, the Veterans Court followed the
    analysis prescribed for it in Toomer II. To the extent Mr.
    Toomer challenges the Veterans Court’s factual findings
    and the weight of the proffered evidence, this court lacks
    jurisdiction to reexamine such findings. 1 See 
    38 U.S.C. § 7292
    (d)(2).
    1   The dissent states “the material facts in this case
    are not in dispute” and “review [of equitable tolling]
    would not involve improper reweighing of facts and is
    properly within the powers of this court.” Dissent at 3. To
    the contrary, Mr. Toomer and the Government disagree
    about whether the original Board Decision was sent; if
    Mr. Toomer received the original Board Decision; whether
    the allotted time to appeal was “greatly reduced,” 
    id.,
     and
    whether the VA communication was “confusing,” 
    id. at 7
    .
    As noted above, under 
    38 U.S.C. § 7292
    (d)(2), this court
    lacks jurisdiction to reexamine such findings, and
    certainly to make its own factual findings that conflict
    with those reached by the Veterans Court. Thus, under
    § 7292(d)(2), we are barred from finding “Mr. Toomer was
    misled by the muddled, conflicting official statements by
    the government.” Dissent at 5.
    The dissent also states, “I take no issue with the
    imposition of the presumption of regularity.” Id. at 4 n.1.
    However, the finding that Mr. Toomer failed to rebut the
    presumption of regularity necessitates the finding that
    the original Board Decision was properly sent to Mr.
    Toomer on June 2, 2009.
    14                                    TOOMER   v. MCDONALD
    Mr. Toomer’s assertions regarding the VA’s duty
    under Barrett do not disturb this conclusion. The issue is
    whether the Veterans Court erred by failing to address in
    its order granting Mr. Toomer’s motion for panel review
    his assertion that the government failed to comply fully
    with an expansive FOIA request made by him after the
    court had rendered its jurisdictional decision. See App. 67
    (“[W]e request that you send: 1. Board of Veterans’
    Appeals, Outcode & Dispatch Procedural Manual, dated
    June 29, 2007 or the latest edition (including all
    attachments). 2. Any other [VA] manuals, publications,
    instructions, or document related to procedures used to
    send documents to veterans.”) (emphasis added).
    The government’s duty under Barrett is to “assist the
    court by providing and, where necessary, procuring further
    evidence    helpful   in    deciding   jurisdiction,  e.g.,
    declarations, new medical examinations, and other forms
    of evidence as appropriate.” Barrett, 466 F.3d at 1044
    (emphases added). Such information shall be provided
    “on [the government’s] own initiative, upon request of the
    veteran, or as required by the Veterans Court.” Id. Thus,
    the duty concerns the development of the record before
    the Veterans Court, and not outside FOIA requests made
    by the Veteran for information not pertinent to the
    equitable tolling issue. Mr. Toomer has also made no
    showing that the court found further evidence was
    “necessary,” or that the government withheld any
    information relevant to the jurisdictional issue. Indeed,
    the government provided the requested information that
    was applicable to Mr. Toomer’s claim of procedural
    irregularity. The Veterans Court’s failure to take up the
    issue of the government’s response to Mr. Toomer’s FOIA
    request in granting Mr. Toomer’s motion for panel review
    was not legally erroneous.
    TOOMER   v. MCDONALD                                      15
    III. There Was No Legal Error in the Veterans Court’s
    Equitable Tolling Analysis
    Because the 120-day deadline to file a notice of appeal
    is not jurisdictional, Henderson, 
    562 U.S. 428
    , a court may
    excuse a late filing under the doctrine of equitable tolling.
    Here, having found the presumption of regularity applies,
    the Board Decision is presumed to have been mailed on
    June 2, 2009, and therefore Mr. Toomer’s appeal was
    untimely filed unless the deadline is equitably tolled.
    In Holland, the United States Supreme Court
    reiterated the requirements for equitable tolling it had
    previously set forth in Pace: a petitioner must show “‘(1)
    that he has been pursuing his rights diligently, and (2)
    that some extraordinary circumstance stood in his way’
    and prevented timely filing.” Holland v. Florida, 
    560 U.S. 631
    , 649 (2010) (quoting Pace v. DiGuglielmo, 
    544 U.S. 408
    , 418 (2005)) (emphasis added); see also Lozano v.
    Montoya Alvarez, 
    134 S. Ct. 1224
    , 1231–32 (2014) (“As a
    general matter, equitable tolling pauses the running of, or
    ‘tolls,’ a statute of limitations when a litigant has pursued
    his rights diligently but some extraordinary circumstance
    prevents him from bringing a timely action.”) (emphasis
    added). Thus, this court has made clear that “to benefit
    from equitable tolling, . . . a claimant [must] demonstrate
    three elements: (1) extraordinary circumstance; (2) due
    diligence; and (3) causation.” Checo v. Shinseki, 
    748 F.3d 1373
    , 1378 (Fed. Cir. 2014). That is, due diligence must
    be shown “[i]n addition to an extraordinary
    circumstance.” 
    Id.
    Mr. Toomer contends the Veterans Court applied an
    incorrect standard for equitable tolling. In support, Mr.
    Toomer argues “[t]he test for equitable tolling has two
    parts. First, the court must determine whether the
    veteran has exercised due diligence. And if so, the court
    must ask whether the circumstances precluded a timely
    filing.” Appellant’s Br. 10–11. As to the first part, Mr.
    16                                    TOOMER   v. MCDONALD
    Toomer contends the court erred in conducting its “due
    diligence” inquiry, arguing the standard is “relaxed” and
    requires the court to ask “whether a reasonably diligent
    veteran would have missed the 120-day deadline in like
    circumstances.” 
    Id. at 11
    , 8 (citing Nelson v. Nicholson,
    
    489 F.3d 1380
    , 1382 (Fed. Cir. 2007); Jaquay v. Principi,
    
    304 F.3d 1276
    , 1287 (Fed. Cir. 2002) (en banc)). To Mr.
    Toomer, under this relaxed standard, “a reasonably
    diligent pro se veteran is permitted to make mistakes in
    following the instructions [on Form 4597] to appeal his
    claim.” Id. at 12.
    As to the second part of the analysis, Mr. Toomer
    contends, in contrast to governing law, there is no
    requirement that the “circumstances” preventing timely
    filing be “extraordinary,” arguing there are other
    circumstances that may justify untimely filing.
    Appellant’s Br. 10–11; Reply 5 (“‘Extraordinary
    circumstances’ is but one of the categories in which the
    courts have found equitable tolling appropriate in
    veterans cases.”). Thus, Appellant insists “there is no
    requirement for Mr. Toomer to establish that his
    circumstances were ‘extraordinary.’” Reply 6.
    In addition, Mr. Toomer argues the Veterans Court
    failed to recognize that misleading actions by the VA may
    justify equitable tolling. Specifically, Mr. Toomer argues
    he was misled by the August 4, 2009 mailing into missing
    the 120-day deadline by the multiple, conflicting dates in
    the documents the VA sent to him (i.e., June 2, 2009 and
    August 4, 2009). Mr. Toomer also argues he was misled
    by Form 4597, which stated “You have 120 days from the
    date this decision was mailed to you (as shown on the first
    page of the decision).” Appellant’s Br. 15 (internal
    citation and quotation marks omitted).          He further
    contends the Veterans Court “improperly limited” “its
    circumstances analysis to the three enumerated
    circumstances in Bove.” Id. at 8, 14 (citing Bove, 25 Vet.
    App. at 140 (stating equitable tolling is “applied only
    TOOMER   v. MCDONALD                                     17
    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”)). In
    support, Mr. Toomer cites this court’s cases explaining the
    Veterans Court errs when it limits “extraordinary
    circumstances” to certain listed examples from past cases.
    Id. at 17 (citing Sneed, 737 F.3d at 726).
    While Mr. Toomer may have been somewhat diligent
    in pursuing his rights, as the Veterans Court found, he
    failed “to identify any factor preventing him from filing a
    timely [notice of appeal], such as reliance on the incorrect
    statement of a VA official, a physical or mental illness
    preventing filing, or a timely misfiling at certain VA
    entities.” Order at 5 (citing Bove, 25 Vet. App. at 140)
    (emphasis added).          Without a showing of an
    “extraordinary circumstance,” Mr. Toomer’s claim cannot
    be equitably tolled. See Sneed, 737 F.3d at 725 (“‘[A]
    litigant seeking equitable tolling bears the burden of
    establishing two elements: (1) that he has been pursuing
    his rights diligently, and (2) that some extraordinary
    circumstance stood in his way.’” (quoting Pace, 
    544 U.S. at 418
    )).    Indeed, this court has made clear that due
    diligence must be shown “[i]n addition to an extraordinary
    circumstance.” Checo, 748 F.3d at 1378. Thus, Mr.
    Toomer’s assertion that he “does not need to show
    ‘extraordinary’ circumstances,” Reply 5, is belied by the
    Supreme Court’s and this court’s case law, which make
    clear that both “due diligence” and “extraordinary
    circumstances” are required elements for equitable
    tolling. See Lozano, 
    134 S. Ct. at
    1231–32; Holland, 
    560 U.S. at 649
    ; Pace, 
    544 U.S. at 418
    ; Checo, 748 F.3d at
    1378; Sneed, 737 F.3d at 726.
    Mr. Toomer is correct, however, that equitable tolling
    is not “limited to a small and closed set of factual
    18                                      TOOMER   v. MCDONALD
    patterns.” Mapu v. Nicholson, 
    397 F.3d 1375
    , 1380 (Fed.
    Cir. 2005). This court has “rejected the approach of
    looking to whether a particular case falls within the facts
    specifically identified in . . . one of our prior cases.” Id.;
    see also Sneed, 737 F.3d at 726 (holding “the Veterans
    Court improperly treated the listed examples—including
    reliance on the incorrect statement of a VA official—as
    the exclusive ‘parameters’ of equitable tolling”). Rather,
    we have acknowledged “the need for flexibility” and “for
    avoiding mechanical rules,” and have proceeded on a
    “case-by-case basis.” Holland, 
    560 U.S. at 631
     (internal
    quotation marks and citation omitted).
    Here, however, the Veterans Court did not commit
    legal error by focusing too narrowly on whether Mr.
    Toomer’s case conformed to a particular fact pattern;
    rather, it properly considered whether, in this case, Mr.
    Toomer’s claim that he was misled by a VA document
    constitutes an extraordinary circumstance. The Veterans
    Court found it did not. In particular, the court found the
    August 4, 2009 cover letter stated the original Board
    Decision was rendered on June 2, 2009, and this mailing
    contained “another copy.”       Order at 4.      As to the
    purportedly misleading language of Form 4597, the court
    noted that Mr. Toomer’s argument reflected a
    misrepresentation by omission of the information on that
    form, “which not only states, as Mr. Toomer notes, that
    ‘[y]ou have 120 days from the date this decision was
    mailed to you,’ but also states immediately thereafter ‘(as
    shown on the first page of this decision)’” and “the date on
    the first page of the decision received by Mr. Toomer in
    August is ‘6/02/09.’” 
    Id.
     at 4–5. Therefore, the court
    concluded, “Mr. Toomer fails to demonstrate that he
    followed [Form 4597], that the instructions therein were
    confusing or misleading, or that the totality of his
    circumstances otherwise demonstrates that he was
    precluded from filing his [notice of appeal] in a timely
    manner.” Id. at 5. The court only cited to Bove to provide
    TOOMER   v. MCDONALD                                      19
    examples of extraordinary circumstances, not to
    determine   whether    Mr.      Toomer’s circumstances
    conformed to a prescribed list of “extraordinary
    circumstances.” See Order at 5.
    Thus, the Veterans Court’s analysis does not evince
    any legal error or misinterpretation of the law
    surrounding equitable tolling. To the extent Mr. Toomer
    asks this court to review the Veterans Court’s factual
    findings surrounding whether or not the filings were
    misleading or confusing, this is of course outside our
    jurisdiction. See Singleton v. Shinseki, 
    659 F.3d 1332
    ,
    1334 (Fed. Cir. 2011). Thus, even if this court disagreed
    with the Veterans Court’s factual finding that the two
    dates on the correspondence from the VA were not
    confusing or misleading, and therefore did not rise to the
    level of “extraordinary circumstance,” revisiting this
    finding is beyond our jurisdiction. Indeed, this court may
    not review “a challenge to a factual determination” or “a
    challenge to a law or regulation as applied to the facts of a
    particular case” unless a constitutional challenge is
    presented. 
    38 U.S.C. § 7292
    (d)(2).
    CONCLUSION
    For the foregoing reasons, the Veterans Court’s
    decision is
    AFFIRMED
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    HARVEST O. TOOMER,
    Claimant-Appellant
    v.
    ROBERT A. MCDONALD,
    SECRETARY OF VETERANS AFFAIRS,
    Respondent-Appellee
    ______________________
    2014-7045
    ______________________
    Appeal from the United States Court of Appeals for
    Veterans Claims in No. 09-4086, Chief Judge Bruce E.
    Kasold.
    ______________________
    REYNA, Circuit Judge, dissenting.
    The majority concludes that equitable tolling does not
    apply in Mr. Toomer’s case primarily because the equita-
    ble tolling analysis requires us to impermissibly reweigh
    factual findings made by the Board of Veterans’ Appeals
    (“Board”). I respectfully dissent.
    I. EQUITABLE TOLLING IS A LEGAL QUESTION WHERE
    MATERIAL FACTS ARE UNDISPUTED
    When reviewing decisions of the United States Court
    of Appeals for Veterans Claims (“Veterans Court”), we are
    statutorily constrained from considering pure questions of
    2                                      TOOMER   v. MCDONALD
    fact, or the application of law to fact.         
    38 U.S.C. § 7292
    (d)(2).
    A well-recognized exception to this rule exists in the
    context of equitable tolling. In Bailey v. Principi, we held
    that when the material facts are not in dispute and the
    adoption of a particular legal standard of review, such as
    the rule preventing our review of questions of fact or the
    application of law to fact, would dictate the result, “this
    court has treated the question of the availability of equi-
    table tolling as a matter of law that we are authorized by
    statute to address.” 
    351 F.3d 1381
    , 1384 (Fed. Cir. 2003)
    (emphasis added); accord Bradenburg v. Principi, 
    371 F.3d 1362
    , 1363 (Fed. Cir. 2004); Wood v. Peake, 
    520 F.3d 1345
    , 1349 (Fed. Cir. 2008).
    The material facts in this case are not in dispute. The
    Board issued a decision in Mr. Toomer’s case on June 2,
    2009, but that decision was not received by Mr. Toomer.
    Mr. Toomer called the Department of Veterans Affairs
    (“VA”) to inquire about the status of his case, informing
    the VA that he had not received a decision. Prompted by
    that call, the VA mailed a package to Mr. Toomer that
    included a cover letter, a copy of the Board’s decision, and
    a notice of appellate rights. The cover letter was machine
    stamped with the date of August 4, 2009. The copy of the
    Board’s decision, however, had an informally-styled date
    (“6/02/09”) handwritten at an angle on its first page. The
    notice of appellate rights set forth standard boilerplate
    instructions, stating, “You have 120 days from the date
    this decision was mailed to you (as shown on the first
    page of this decision) to file a Notice of Appeal with the
    Court.” J.A. 21 (emphasis added). At the time the VA
    mailed the copy of the decision to Mr. Toomer, 72 of the
    120 days provided in 
    38 U.S.C. § 7266
    (a) to file an appeal
    had elapsed. Mr. Toomer filed his notice of appeal on
    October 28, 2009, 85 days after the VA mailed the copy of
    the Board’s decision to him and, thus, within 120 days of
    TOOMER   v. MCDONALD                                       3
    the date on the first page of the package containing the
    copy of the decision, August 4, 2009.
    Because there are no material facts in dispute in this
    case, the question of equitable tolling is one we can, and
    here must, review. See Bailey, 
    351 F.3d 1384
    . Such
    review would not involve improper reweighing of facts
    and is properly within the powers of this court.
    II. THE GOVERNMENT’S CONFUSING STATEMENTS
    JUSTIFY EQUITABLE TOLLING
    As the majority recognizes, a veteran seeking to in-
    voke equitable tolling must establish both diligence in
    pursuing his rights and extraordinary circumstances
    standing in his way. Sneed v. Shinseki, 
    737 F.3d 719
    , 725
    (Fed. Cir. 2013). The majority does not suggest that Mr.
    Toomer did not meet the diligence prong of equitable
    tolling. See Maj. Op. at 16. As such, all that remains is a
    showing of exceptional circumstances before equitable
    tolling may be properly applied. Numerous facts point to
    the existence of exceptional circumstances in Mr. Toom-
    er’s case.
    A. The Allotted Time To Appeal Was Greatly Reduced
    Mr. Toomer received a copy of the Board’s decision af-
    ter more than half of the filing period had elapsed. The
    accompanying notice of appellate rights explained that he
    would have 120 days from the date “this decision” was
    mailed to him to file his appeal. J.A. 21. The rules per-
    mit 120 days to appeal. A legally unsophisticated veteran
    may require a significant amount of time, as much as the
    entire 120 days, to consider the decision, research the law,
    evaluate the merits of an appeal, and prepare and file the
    notice of appeal. To the extent Congress deems that the
    entire statutorily-provided period as necessary for all of
    these steps, cutting that time by more than half, as the
    majority does here, casts doubt on the sufficiency of the
    resultant filing period. The majority does not state why
    4                                      TOOMER   v. MCDONALD
    the shortened period should be deemed sufficient for this
    particular veteran.
    There is no evidence that Mr. Toomer was less than
    diligent, as he filed his appeal 85 days after the copy of
    the decision was mailed to him, well within the otherwise
    applicable 120-day period. Where a claimant acts with
    diligence to do everything that could reasonably be ex-
    pected of him, and the untimely filing is beyond his con-
    trol, the untimely filing should not bar the claim. Herring
    v. Merit Sys. Prot. Bd., 
    778 F.3d 1011
    , 1016-18 (Fed. Cir.
    2015) (reversing dismissal of appeal for untimely filing
    where claimant relied on misleading statements made by
    her counsel). Such diligence suggests that but for his
    confusion as to the date his appeal was due, generated by
    the government, Mr. Toomer would have timely filed his
    appeal.
    B. The VA’s Communication With
    Mr. Toomer Was Confusing
    Despite sending a personalized letter to Mr. Toomer,
    the VA neglected to inform him that the filing period ran
    from the date of the supposed mailing of the first decision,
    which Mr. Toomer never received. In the personalized
    letter, the VA acknowledged it was sending the copy of
    the decision in response to Mr. Toomer informing the
    agency that he did not receive the original decision. 1 J.A.
    24. The letter contained highly specific information,
    1   I take no issue with the imposition of the pre-
    sumption of regularity. This case is not about whether
    the VA actually mailed the initial decision, as it claims,
    but rather about two separate communications that, on
    their faces, provide conflicting, confusing information to
    Mr. Toomer regarding his right to appeal. To the extent
    the majority asserts the presumption of regularity fore-
    closes consideration of equitable tolling, I dissent.
    TOOMER   v. MCDONALD                                        5
    including the precise date on which Mr. Toomer requested
    the original decision from the VA. 
    Id.
     This letter was
    accompanied by the boilerplate language in the notice of
    appellate rights, indicating the filing period would begin
    to run on the date “this decision” was mailed to Mr.
    Toomer. In spite of the VA’s personalized communication,
    it failed to alert Mr. Toomer that the start of the running
    of the filing period was unaffected by his non-receipt of
    the original decision. This error was compounded by the
    VA’s failure to explain that “this decision” actually re-
    ferred to the previously mailed decision.
    Mr. Toomer was misled by the muddled, conflicting of-
    ficial statements by the government, wherein two dates
    from which to appeal were communicated to him. The
    inconsistent language in the notice of appellate rights
    could easily confuse a fastidious lawyer. In this case, the
    government’s inconsistent statements confused a lay
    veteran, Mr. Toomer. The resulting confusion was of the
    government’s making and, as such, should not be held
    against an otherwise diligent, involved veteran.
    C. The Majority Constrains Equitable Tolling
    To A Closed Set Of Factual Patterns
    This court has rejected the “suggestion that equitable
    tolling is limited to a small and closed set of factual
    patterns and that equitable tolling is precluded if a veter-
    an’s case does not fall within those patterns.” Mapu v.
    Nicholson, 
    397 F.3d 1375
    , 1380 (Fed. Cir. 2005). We have
    highlighted the need to be flexible in our inquiry, and to
    analyze each case individually. Sneed, 737 F.3d at 726
    (quoting Holland v. Florida, 
    560 U.S. 631
    , 649-50 (2010)).
    The majority suggests it remains mindful not to limit
    equitable tolling to a small, closed set of factual patterns,
    Maj. Op. at 17, but by declining to apply analogous prece-
    dent, it does just that.
    In Bailey v. West, we held that equitable tolling is ap-
    propriate when a veteran’s untimely filing results from
    6                                      TOOMER   v. MCDONALD
    the government’s own misleading statements. 
    160 F.3d 1360
     (Fed. Cir. 1998). A Veterans Benefits Counselor at
    the regional office (“RO”) misrepresented to the veteran
    that timely filing a notice of appeal at the RO was suffi-
    cient to initiate the veteran’s appeal. 
    Id. at 1361
    . Relying
    on the government’s statement, the veteran timely filed a
    notice of appeal at the RO, though that notice was not
    forwarded to the Veterans Court within the filing period.
    The VA notified the veteran that timely filing a notice of
    appeal at the RO does not protect his right of appeal. 
    Id. at 1362
    . The veteran then filed an untimely notice of
    appeal with the Veterans Court. The Veterans Court
    dismissed the appeal for lack of jurisdiction on account of
    the untimely filing of the notice of appeal. 
    Id.
    The veteran in Bailey appealed the dismissal to this
    court. In analyzing whether equitable tolling applied, we
    explained that the veteran “was misled by the conduct of
    his adversary [the government] into allowing the filing
    deadline to pass” even though there was “no suggestion of
    misconduct” by the government. 
    Id. at 1365
    . We con-
    cluded that the government’s misleading statements that
    caused the veteran to miss the filing deadline were suffi-
    cient to equitably toll the deadline, even absent evidence
    of any intent to mislead. 
    Id.
    Just as in Bailey, the government’s misleading state-
    ments in this case, made without intent to mislead, are
    sufficient to justify equitably tolling the 120-day filing
    period. Mr. Toomer asserts that he relied on the machine-
    stamped date on the cover letter because he believed the
    cover letter was part of the decision itself. His belief is
    not unreasonable given that the cover letter and the
    decision came in a packet together, and that the date on
    the cover letter bears an official appearance while the
    handwritten date does not. Using either date from which
    to calculate the filing deadline is reasonable in this case.
    The instructions in the notice of appellate rights could
    easily mislead Mr. Toomer to believe his filing period
    TOOMER   v. MCDONALD                                       7
    ended later than it actually did. While there is no evi-
    dence of intent by the government to mislead Mr. Toomer,
    the official, confusing instructions in the notice of appel-
    late rights did exactly that. As a result, Mr. Toomer filed
    his notice of appeal 85 days after he received the copy of
    the Board’s decision. His filing occurred inside the 120-
    day period beginning on the date the copy was mailed, but
    outside the 120-day window beginning on the date of the
    supposed first mailing.
    By refusing to apply equitable tolling on the facts of
    Mr. Toomer’s case, the majority narrowly circumscribes
    Bailey, limiting that decision’s reach to only affirmative
    misstatements by the government. Bailey teaches that
    misleading statements by the government support equi-
    tably tolling the period for appealing to the Veterans
    Court, even absent intent by the government to mislead
    the veteran. In any event, I believe that an application of
    the flexible, case-by-case analysis espoused, but not
    utilized, by the majority leads to the conclusion that the
    filing deadline should have been equitably tolled.
    D. This Decision Will Produce Undesirable Results
    Finally, the majority’s refusal to apply equitable toll-
    ing here will lead to absurd results in other cases. Sup-
    pose the initial mailing of the Board’s decision never
    arrives and the veteran contacts the VA after the 120-day
    filing period elapses. Even if the veteran filed an appeal
    on the day the Board’s decision was received, a mechani-
    cal application of 
    38 U.S.C. § 7266
    (a) would lead to a
    dismissal of that appeal. Under the majority’s opinion,
    equitable tolling would not apply because even in this
    scenario, the veteran would not be able to show excep-
    tional circumstances. In short, the veteran would be left
    with no recourse at all. This cannot be the appropriate
    result given the remedial nature of veterans law.
    The government’s misleading communications and
    the lapsing of more than half the filing period before the
    8                                      TOOMER   v. MCDONALD
    veteran received the Board’s decision clearly illustrate the
    existence of extraordinary circumstances in this case.
    Because the majority declines to equitably toll the filing
    statute, I respectfully dissent.