Van Allen v. Nicholson , 129 F. App'x 611 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
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HAROLD W. VAN ALLEN,
Claimant-Appellant,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: April 26, 2005
___________________________
Before MICHEL, Chief Judge, MAYER and DYK, Circuit Judges.
PER CURIAM.
Harold W. Van Allen (“Van Allen”) appeals from the decisions of the Court of
Appeals for Veterans Claims (“Veterans’ Court”) dismissing his appeals for lack of
jurisdiction. Van Allen v. Principi, No. 03-1956 (Vet. App. July 30, 2004); Van Allen v.
Principi, No. 03-1957 (Vet. App. July 30, 2004). We affirm the decisions in these
consolidated appeals.
BACKGROUND
Van Allen served in the active duty military from June 1973 to June 1978. On
June 24, 1987, the Board of Veterans Appeals (“Board”) denied Van Allen’s claim for
benefits based upon service connection for systemic lupus erythematosus. On January
8, 2001 the Board dismissed Van Allen’s claim of service connection for
neurological/multisystem disability as analogous to Gulf War Syndrome and exposure to
chemical and/or biological agents, and remanded his claim of service connection for a
suprasellar arachnoid cyst to the Regional Office. The Board received motions for
reconsideration from Van Allen regarding both Board decisions on March 27, 2002,
which were denied on July 18, 2002. Van Allen filed notices of appeal with the
Veterans’ Court on November 4, 2003. Thus, Van Allen filed his notice of appeal with
the Veterans’ Court more than one year late.
The Veterans’ Court dismissed both appeals for lack of jurisdiction. Applying
identical reasoning to both appeals, the Veterans’ Court found that Van Allen was not
entitled to equitable tolling of the 120-day appeal period of 38 U.S.C. § 7266(a), which
governs appeals to the Veterans’ Court. The Veterans’ Court noted that Van Allen
presented evidence of a Social Security Administration determination that he suffered
cognitive problems for the period of June 1978 to 1985. Indeed, it appears that the
Social Security Administration determined on September 27, 2000, that Van Allen was
disabled by severe mental and musculoskeletal impairments for the period from June
30, 1978, to December 31, 1986. However, the Veterans’ Court found this early period
of impairment irrelevant to the much later period for filing a notice of appeal with the
Veterans’ Court. Thus, the Veterans’ Court found that Van Allen had “not shown that
any such diagnosis prevented him from filing [a notice of appeal] when required” and
that “there is nothing in this appeal that otherwise suggests that tolling of the 120-day
appeal period would be appropriate.” Van Allen, No. 03-1956, slip op. at 2; Van Allen,
No. 03-1957, slip op. at 2. We have jurisdiction pursuant to 38 U.S.C. § 7292.
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DISCUSSION
Under 38 U.S.C. § 7292(d)(1), we will set aside a decision of the Veterans’ Court
if we find it to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a
statutory right; or (D) without observance of procedure required by law.” We review a
claim for legal error in the decision of the Veterans’ Court without deference. Moody v.
Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).
Van Allen urges on appeal that the Veterans’ Court misinterpreted our decision in
Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004). The Veterans’ Court cited to Barrett,
which states that “to obtain the benefit of equitable tolling, a veteran must show that the
failure to file was the direct result of a mental illness that rendered him incapable of
rational thought or deliberate decision making, or incapable of handling [his] own affairs
or unable to function [in] society.” Barrett, 363 F.3d at 1321 (internal quotes and
citations omitted) (alterations in original). We recently reaffirmed Barrett by applying the
same test in the physical disability context. Arbas v. Nicholson, No. 04-7107, slip op. at
3-4 (April 13, 2005). The Veterans’ Court correctly interpreted Barrett’s “direct result”
standard, noting that Van Allen’s only evidence of mental impairment predated the
proposed tolling period by fifteen years. Accordingly, we find no error in the Veterans’
Court’s interpretation of Barrett.
Alternatively, Van Allen urges that the Veterans’ Court came to its conclusion
without consideration of the full record below because it did not have before it the full
record available before the Board. 38 U.S.C. § 7252(b) provides that “[r]eview in the
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[Veterans’] Court shall be on the record of proceedings before the Secretary and the
Board.” However, we have previously held that the burden of proof is on the veteran.
Barrett, 363 F.3d at 1321. Thus, the veteran must bring any evidence in favor of
equitable tolling to the attention of the Veterans’ Court. We find that the Veterans’ Court
acted in accordance with § 7252.
We have considered Van Allen’s other arguments and find them to be without
merit.
CONCLUSION
The decision of the Veterans’ Court is affirmed.
COSTS
No costs.
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