NOTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ELIJAH THOMAS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2389
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-2063, Judge Mary J. Schoelen.
______________________
Decided: January 14, 2019
______________________
ELIJAH THOMAS, Shreveport, LA, pro se.
ALEXANDER ORLANDO CANIZARES, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by JOSEPH H. HUNT, C LAUDIA BURKE, ROBERT
EDWARD KIRSCHMAN, JR .; BRANDON A. JONAS, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
2 THOMAS v. WILKIE
Before PROST, Chief Judge, REYNA and TARANTO,
Circuit Judges.
PER CURIAM.
Appellant Elijah Thomas appeals an order of the U.S.
Court of Appeals for Veterans Claims (“Veterans Court”)
dismissing his appeal. The Veterans Court determined
that Mr. Thomas’s appeal was untimely and that equita-
ble tolling of the appeal deadline was unwarranted. This
court lacks jurisdiction to review the timeliness of Mr.
Thomas’s appeal to the Veterans Court.
I
Mr. Thomas served on active duty from March 1971 to
March 1973. On December 20, 2017, the Board of Veter-
ans’ Appeals (“Board”) denied Mr. Thomas’s claim for an
earlier effective date for service connection for hyperten-
sion and his claim for entitlement to compensation for
injuries sustained at a U.S. Department of Veterans
Affairs (“VA”) facility in 1998. 1
Mr. Thomas filed a notice of appeal of the Board’s de-
cision with the Veterans Court on April 24, 2018. Be-
cause the notice was filed more than 120 days from the
presumed date on which the Board mailed its decision to
Mr. Thomas, the Secretary of Veterans Affairs moved to
dismiss Mr. Thomas’s appeal as untimely. Mr. Thomas,
appearing pro se, responded to the Secretary’s motion. He
explained that his chronic back, neck, and shoulder pain
prevented him from filing his notice of appeal on time—
that is, by April 19, 2018. He further explained that he
was caring for a long-time friend, which also contributed
1 The Board also granted Mr. Thomas’s total disa-
bility individual unemployability (TDIU) claim, granted
his special monthly compensation claim, and remanded a
service connection claim for a left hip disability.
THOMAS v. WILKIE 3
to his need to file his notice five days late. With his
response, Mr. Thomas included a January 2018 progress
note from the Shreveport VA Medical Center, indicating
that he experiences neck and shoulder pain.
After considering the Secretary’s motion and Mr.
Thomas’s response, the Veterans Court noted that Mr.
Thomas had not provided any additional evidence sup-
porting his assertion that “he was unable to leave his
house during the latter part of the 120 days,” Resp’t-
Appellee App. 50, and ordered him to file “an additional
response, along with any supportive documentation
discussing whether the circumstances . . . warrant equi-
table tolling,”
id. at 51. Accordingly, Mr. Thomas filed
another response, including additional medical records.
In July 2018, the Veterans Court granted the Secre-
tary’s motion to dismiss. Although the court acknowl-
edged that Mr. Thomas’s medical records reflect right
shoulder pain, emergency room treatment, chronic neck
pain, and swelling of the bilateral lower extremities, it
ultimately concluded that Mr. Thomas failed to show that
equitable tolling was warranted. According to the court,
the argument and evidence of record did not prove that
Mr. Thomas’s physical condition prevented him from
timely filing his notice of appeal. On the contrary, the
court found that the evidence showed Mr. Thomas’s
independent mobility.
In August 2018, after denying Mr. Thomas’s motion
for reconsideration, the Veterans Court entered judgment.
Mr. Thomas timely appealed to this court.
II
The ability of this court to review Veterans Court
decisions is limited by statute. 38 U.S.C. § 7292; see
Leonard v. Gober,
223 F.3d 1374, 1375 (Fed. Cir. 2000).
Under the statute, absent a constitutional challenge, this
court lacks jurisdiction to review challenges to factual
4 THOMAS v. WILKIE
determinations and to laws or regulations as applied to
the facts of a case. 38 U.S.C. § 7292.
On appeal, Mr. Thomas does not appear to present a
constitutional challenge. Nor does he appear to challenge
the legal standard that the Veterans Court applied.
Rather, Mr. Thomas argues factual reasons for why he
missed the appeal deadline. Specifically, Mr. Thomas
argues, as he did before the Veterans Court, that his
medical condition precluded him from timely filing his
notice of appeal. The Veterans Court made factual de-
terminations as to Mr. Thomas’s argument and evidence.
It then applied the law to those fact findings and deter-
mined that Mr. Thomas’s untimely appeal should not be
subject to equitable tolling.
Because Mr. Thomas’s appeal deals only with the
Veterans Court’s factual determinations and the applica-
tion of equitable tolling to those facts, we are statutorily
prohibited from entertaining the merits of his appeal.
Dixon v. Shinseki,
741 F.3d 1367, 1377 (Fed. Cir. 2014)
(“This court is precluded from reviewing factual determi-
nations bearing on a veteran’s equitable tolling claim.”
(internal citation omitted));
Leonard, 223 F.3d at 1376
(concluding that this court was barred from considering
the veteran’s arguments regarding application of equita-
ble tolling to the facts of her case). 2
III
For the foregoing reasons, this appeal is dismissed.
2 We acknowledge Mr. Thomas’s motion for leave to
supplement the record but conclude that the motion is
moot because we lack jurisdiction to reach the merits of
this case.
THOMAS v. WILKIE 5
DISMISSED
COSTS
The parties shall bear their own costs.
