Chullin v. McDonald , 666 F. App'x 917 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MATKO L. CHULLIN, III,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-2053
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-1967, Judge Margaret C.
Bartley.
______________________
Decided: December 13, 2016
______________________
MATKO L. CHULLIN, III, Baltimore, MD, pro se.
ALISON VICKS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN
F. HOCKEY, JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 CHULLIN v. MCDONALD
______________________
Before O’MALLEY, WALLACH, and TARANTO, Circuit
Judges.
PER CURIAM.
Matko L. Chullin seeks review of the March 3, 2016
decision of the Court of Appeals for Veterans Claims
(“Veterans Court”) denying Mr. Chullin’s motion for
extension of time to respond to the Secretary’s motion to
dismiss, and granting the Secretary’s motion. Chullin v.
McDonald, No.15-1967, 2016 WL 853121 (Vet. App. Mar.
3, 2016). For the foregoing reasons, we affirm the deci-
sion of the Veterans Court.
BACKGROUND
Mr. Chullin served on active duty with the Marines
from February 1965 to August 1968. On September 19,
1969, the regional office (“RO”) assigned Mr. Chullin a 10
percent rating for anxiety reaction. In July 2005, Mr.
Chullin filed a claim for an increased rating and, in July
2007, the RO assigned Mr. Chullin a 100 percent rating
with an effective date of July 11, 2005. In January 2008,
Mr. Chullin argued to the RO that he was entitled to his
100 percent rating from the date of his discharge. The RO
denied his claim for an earlier effective date, and Mr.
Chullin appealed to the Board of Veterans’ Appeals (the
“Board”).
While testifying before the Veterans Law Judge
(“VLJ”), both Mr. Chullin and the VLJ also raised the
issue of clear and unmistakable error in his September
1969 evaluation. In July 2009, the Board awarded Mr.
Chullin an earlier effective date by one year: July 11,
2004. The Board referred the issue of clear and unmis-
takable error to the RO for adjudication in the first in-
stance. The RO denied that claim, and in February 2010,
Mr. Chullin subsequently filed a Notice of Disagreement
CHULLIN v. MCDONALD 3
requesting a hearing before a Decision Review Officer.
That hearing was granted, scheduled for May 2010, and
later rescheduled to June 2010 upon Mr. Chullin’s re-
quest. Mr. Chullin did not, however, appear for that
hearing. Mr. Chullin requested another hearing before a
VLJ, which was granted and scheduled for September
2011. Mr. Chullin requested a postponement of that
hearing, which was also granted, resulting in a new date
in January 2012. Mr. Chullin requested a second post-
ponement, which was denied for lack of good cause shown.
Mr. Chullin failed to appear for the January 2012 hear-
ing, and on April 16, 2014, the Board affirmed the RO’s
denial of the clear and unmistakable error claim.
In May 2014, Mr. Chullin filed a motion to vacate the
Board’s decision, alleging due process violations. Specifi-
cally, Mr. Chullin alleged that (1) he was not afforded the
hearing he requested, (2) he had not been notified of the
rescheduled hearing date, (3) he was denied the oppor-
tunity to submit additional evidence, (4) a specific VLJ
(Vito Clementi) should have been assigned to hear his
case, and (5) the Board should have reheard his case
rather than sending it to the RO on rehearing. On August
12, 2014, the Board denied the motion, finding that Mr.
Chullin had been afforded multiple opportunities for a
hearing, had been notified of the rescheduled date, had
multiple opportunities to submit new evidence, had no
vested right to select a particular VLJ, and had properly
been denied a request for Board rehearing.
On January 27, 2015, Mr. Chullin sent a letter to the
Board requesting reconsideration of the Board’s denial of
his motion to vacate. The Board issued a decision on
February 24, 2015, denying the request because it did not
meet the formal requirements for a motion for reconsider-
ation. Mr. Chullin resubmitted his letter as a motion for
reconsideration on April 27, 2015, and on May 4, 2015,
the Board denied the motion, finding that he had failed to
4 CHULLIN v. MCDONALD
demonstrate that the Board’s decision contained an
obvious error of fact or law.
On May 19, 2015, Mr. Chullin filed a notice of appeal
with the Veterans Court regarding the Board’s August
2014 decision. The Secretary filed a motion to dismiss,
arguing that Mr. Chullin’s notice of appeal was untimely.
Before deciding the Secretary’s motion, the Veterans
Court issued a stay to allow the Veterans Consortium Pro
Bono Program to evaluate whether Mr. Chullin qualified
for pro bono representation. On November 9, 2015, the
Veterans Court lifted the stay and ordered Mr. Chullin to
file a response to the Secretary’s motion within 20 days.
On November 30, 2015, Mr. Chullin filed a motion for
a 30-day extension to respond. On December 2, 2015, the
Veterans Court granted Mr. Chullin’s motion, providing
an extension until December 30, 2015. On December 28,
2015, Mr. Chullin submitted another motion for a 30-day
extension, claiming that he was involved in an October
20, 2015 car accident, which caused him to need addition-
al time to respond. The Veterans Court granted Mr.
Chullin’s motion in part, ordering his response by Janu-
ary 15, 2016. On January 15, 2016, Mr. Chullin filed a
third motion for an extension, including a September
2015 neuropsychological evaluation in which a neurologist
stated that Mr. Chullin’s focus and working memory were
impaired. On February 2, 2016, the Veterans Court again
granted in part Mr. Chullin’s motion, ordering his re-
sponse by February 16, 2016. On February 16, 2016, Mr.
Chullin filed a fourth motion for an extension, submitting
a doctor’s letter stating that he may have memory and
concentration issues due to “memory loss, PTSD, chronic
pain, and a cervical disc problem.” The doctor noted that
these issues were present from August through December
2014.
On March 3, 2016, the Veterans Court denied Mr.
Chullin’s motion for a fourth extension of time to respond,
CHULLIN v. MCDONALD 5
considered his January and February submissions as the
extent of his response, and granted the Secretary’s motion
to dismiss. Mr. Chullin now appeals to this court.
DISCUSSION
Our ability to review a decision of the Veterans Court
is limited. We may 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.” 38
U.S.C. § 7292(a) (2012). We have exclusive jurisdiction
“to review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof
brought under [38 U.S.C. § 7292], and to interpret consti-
tutional and statutory provisions, to the extent presented
and necessary to a decision.” Id. § 7292(c). Except to the
extent that an appeal presents a constitutional issue,
however, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
In his informal brief, Mr. Chullin first alleges that
this case does involve the validity or interpretation of a
statute or regulation. The only elaboration, however, that
Mr. Chullin provides is: “[t]he Veterans Administration
has been using [his] medical conditions against [him].”
Appellant Br. at 1. He does not cite to a particular stat-
ute or regulation either interpreted or erroneously found
valid by the Veterans Court in its decision, nor are we
able to find any upon careful review; the Veterans Court’s
decision relies solely on applying the law as-is to the
particular facts of his case.
Next, Mr. Chullin claims that the Veterans Court’s
decision presents a constitutional issue. Specifically, Mr.
Chullin alleges that (1) the RO violated his due process
rights by denying him “the opportunity to present [his]
case,” and (2) the Board violated his due process rights by
6 CHULLIN v. MCDONALD
failing to “inform [him] of the date of his hearing.” Id.
Mr. Chullin is correct that his entitlement to veteran
benefits “is a property interest protected by the Due
Process Clause.” Cushman v. Shinseki, 576 F.3d 1290,
1298 (Fed. Cir. 2009). But the record demonstrates that
Mr. Chullin was offered the opportunity for a hearing
before the RO—and a rescheduling that he requested.
Mr. Chullin failed to appear, without having requested
any further rescheduling. With respect to the Board, it is
unclear how Mr. Chullin could be unaware of the date of
his hearing, and yet prospectively know that he would be
unable to attend and request that it be rescheduled each
time. Mr. Chullin may be under the impression that
there was an additional hearing before the Board, on or
about April 16, 2014, of which he was not informed. See
Appellant Br. at 11. But the record indicates no such
additional hearing. For these reasons, Mr. Chullin’s
purported constitutional claims are rejected.
Finally, Mr. Chullin appears to argue that the Veter-
ans Court erred in dismissing Mr. Chullin’s appeal be-
cause it “failed to realize the extreme extent of [his]
physical and mental disabilities and limitations as docu-
mented by [his] doctors.” Id. at 1. To the extent Mr.
Chullin is arguing that the Veterans Court should have
granted his motion for additional time to respond due to
his condition, that argument is unpersuasive. The Veter-
ans Court granted the first three of such motions—
totaling an additional 78 days—and only denied his
fourth consecutive motion. Its decision to deny that
motion was neither an abuse of discretion nor contrary to
any rules of law or regulation; motions to extend beyond
45 days are granted only for “extraordinary circumstanc-
es.” U.S. VET. APP. R. 26(b). The Veterans Court consid-
ered the medical evidence that Mr. Chullin submitted and
found that it did not rise to the level of extraordinary
circumstances warranting yet another extension. We find
no error in that conclusion.
CHULLIN v. MCDONALD 7
If Mr. Chullin is instead arguing that the Veterans
Court should have permitted his untimely appeal due to
his medical condition, that argument also fails. General-
ly, a notice of appeal must be filed with the Veterans
Court within 120 days after the Board mails notice of a
decision. 38 U.S.C. § 7266(a). The deadline is not juris-
dictional, Henderson v. Shinseki, 562 U.S. 428, 441–42
(2011), and if a claimant files a motion for reconsidera-
tion, a new 120-day period to file a notice of appeal begins
after the Board issues its decision on the motion. Graves
v. Principi, 294 F.3d 1350, 1352 (Fed. Cir. 2002); Linville
v. West, 165 F.3d 1382, 1385 (Fed. Cir. 1999). For timeli-
ness purposes, a motion to vacate is considered the equiv-
alent of a motion for reconsideration. Harms v.
Nicholson, 489 F.3d 1377, 1379 (Fed. Cir. 2007). Here,
the Board issued its decision on April 16, 2014, and Mr.
Chullin filed a motion to vacate on May 3, 2014—within
the 120-day deadline. The Board issued its denial of that
motion on August 12, 2014, such that Mr. Chullin was
required to file any further notice of appeal by December
10, 2014. Instead, Mr. Chullin filed a motion for recon-
sideration on January 27, 2015. The Veterans Court,
reviewing all available medical evidence, concluded that
equitable tolling was not justified to extend the 120-day
deadline. This court does not have jurisdiction to review
the Veterans Court’s application of the equitable tolling
standard to the particular facts of this case. Dixon v.
Shinseki, 741 F.3d 1367, 1377 (Fed. Cir. 2014) (“This
court is precluded from reviewing factual determinations
bearing on a veteran’s equitable tolling claim.”).
The remainder of Mr. Chullin’s informal brief and his
reply attempt to relitigate the underlying merits of his
anxiety rating and benefits determination. Given Mr.
Chullin’s failure to timely appeal the Board’s decision to
the Veterans Court, those issues are not properly before
this court.
8 CHULLIN v. MCDONALD
CONCLUSION
After full review of the record and careful considera-
tion, we find no error in the Veterans Court’s decision to
dismiss Mr. Chullin’s appeal. Accordingly, we affirm.
AFFIRMED