Tyrues v. Shinseki

Citation732 F.3d 1351
Decision Date10 October 2013
Docket NumberNo. 2013–7007.,2013–7007.
PartiesLarry G. TYRUES, Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

732 F.3d 1351

Larry G. TYRUES, Claimant–Appellant,
v.
Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2013–7007.

United States Court of Appeals,
Federal Circuit.

Oct. 10, 2013.


[732 F.3d 1352]


Mark R. Lippman, The Veterans Law Group, of La Jolla, CA, argued for claimant-appellant.

Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and

[732 F.3d 1353]

Martie Adelman, Attorney, United States Department of Veterans Affairs, of Washington, DC.


Before NEWMAN, LOURIE, and TARANTO, Circuit Judges.

Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion filed by Circuit Judge NEWMAN.

TARANTO, Circuit Judge.

Larry G. Tyrues, a veteran of the United States Army who served in the Persian Gulf, sought disability benefits under two different standards. In September 1998, the Board of Veterans' Appeals rejected his claim to benefits under 38 U.S.C. § 1110, because his lung condition lacked the required service connection, but remanded to the Department of Veterans' Affairs Regional Office for further consideration of whether his chronic symptoms manifested Persian Gulf Syndrome, which might have entitled him to benefits under standards then in regulations but soon enacted as 38 U.S.C. § 1117. Mr. Tyrues did not appeal to the Court of Appeals for Veterans Claims from the Board's September 1998 decision until more than 5 years later.

In April 2004, after the remand, the Board decided that Mr. Tyrues was not entitled to benefits pursuant to section 1117. At that point, Mr. Tyrues asked the Veterans Court to review both the April 2004 denial under section 1117 and the September 1998 denial under section 1110. The Veterans Court dismissed the part of his appeal that challenged the September 1998 Board decision, ruling that Mr. Tyrues (a) missed the 120–day deadline for appealing that decision, 38 U.S.C. § 7266(a), and (b) presented no basis for equitable tolling under Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Concluding that the Veterans Court correctly interpreted 38 U.S.C. § 7266(a), we now affirm, as we did when the Veterans Court earlier reached the same untimeliness decision, before Henderson, without considering equitable tolling. See Tyrues v. Shinseki, 631 F.3d 1380 (Fed.Cir.), vacated and remanded in light of Tyrues, 132 S.Ct. 75 (2011).

Background

Mr. Tyrues served his country in the United States Army in the Persian Gulf from November 1990 to May 1991. In March 1995, shortly after being hospitalized for pneumonia, Mr. Tyrues sought benefits for a lung disability pursuant to 38 U.S.C. § 1110, which provides for payment of compensation based on disabilities that result from a personal injury suffered or disease contracted in the line of duty. A veteran entitled to receive benefits under section 1110 is said to have a disability with a direct service connection.

While his entitlement to disability benefits under section 1110 was pending, Mr. Tyrues appeared at a hearing before a Board member to discuss the condition of his lungs. During the hearing, Mr. Tyrues said that other soldiers who had served in the Persian Gulf were experiencing chronic medical symptoms similar to his. The Board member responded that “[t]hat's not really relevant” under section 1110 but that Mr. Tyrues should “certainly file a claim” seeking benefits for Persian Gulf Syndrome under standards, then embodied in regulations but about to be codified in section 1117, that afford a presumption of service connection in certain circumstances. Six days later, Mr. Tyrues amended his claim for disability benefits to identify chronic symptoms associated with Persian Gulf Syndrome, including aching joints, memory loss, and a stomach condition.

[732 F.3d 1354]

In September 1998, the Board denied Mr. Tyrues disability compensation under section 1110. The entirety of the “Order” section of the decision stated: “The claim for entitlement to service connection for a lung disorder on a direct basis is denied.” In the distinct “Remand” portion of its decision, the Board sent Mr. Tyrues's case back to the Regional Office for additional development of evidence on whether Mr. Tyrues's “chronic disorder manifested by shortness of breath, due to undiagnosed illness,” was entitled to a presumptive service connection as Persian Gulf Syndrome.

The Board decision informed Mr. Tyrues of his appellate rights:

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 ..., a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision.... Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.

The Board also attached a separate notice of appellate rights, which told Mr. Tyrues:


The attached decision by the Board ... is the final decision for all issues addressed in the “Order” section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a “Remand” section follows the “Order.” However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.

(Emphasis in original.) The notice informed Mr. Tyrues of how to appeal and said:


You have 120 days from the date this decision was mailed to you ... to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims.

Mr. Tyrues did not file an appeal within 120 days.


In April 2004, the Board decided that Mr. Tyrues was not entitled to section 1117's presumption of service connection for Persian Gulf veterans. Mr. Tyrues then sought review in the Veterans Court of both the April 2004 denial of benefits under section 1117 and the September 1998 denial of benefits under section 1110.

In November 2005, the Veterans Court affirmed the April 2004 decision but held that it lacked jurisdiction to review the Board's September 1998 decision because, as to that decision, Mr. Tyrues failed to comply with the mandate of 38 U.S.C. § 7266(a) that a veteran “shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed.” Tyrues v. Nicholson, 20 Vet.App. 231 (2005). After this court remanded for reconsideration on the Secretary's motion, Tyrues v. Peake, 273 Fed.Appx. 921 (Fed.Cir.2008), the Veterans Court, acting en banc, again dismissed Mr. Tyrues's appeal of the Board's September 1998 decision for lack of jurisdiction. Tyrues v. Shinseki, 23 Vet.App. 166 (2009). This court then affirmed the Veterans Court. Tyrues v. Shinseki, 631 F.3d 1380 (Fed.Cir.2011).

A few weeks later, the Supreme Court held in Henderson v. Shinseki that the 120–day filing deadline in section 7266(a), though “an important procedural rule,” “does not have jurisdictional attributes.” ––– U.S. ––––, 131 S.Ct. 1197, 1206, 179 L.Ed.2d 159 (2011). The Supreme Court then granted Mr. Tyrues's petition

[732 F.3d 1355]

for certiorari, vacated this court's judgment, and remanded for further consideration in light of Henderson.Tyrues v. Shinseki, ––– U.S. ––––, 132 S.Ct. 75, 181 L.Ed.2d 2 (2011). This court in turn vacated the Veterans Court's judgment and remanded for consideration of whether the non-jurisdictional nature of section 7266(a) should lead to a different result. Tyrues v. Shinseki, 467 Fed.Appx. 889, 890 (Fed.Cir.2012). The Veterans Court thereafter held that it still must dismiss the appeal from the September 1998 decision, because Mr. Tyrues advanced no basis for equitable tolling of the 120–day clock in his case. Tyrues v. Shinseki, 26 Vet.App. 31, 33–34 (2012).

Mr. Tyrues timely petitioned this court for review of the Veterans Court's decision under 38 U.S.C. § 7292(a).

Discussion

This court's jurisdiction to review decisions of the Veterans Court is limited. See38 U.S.C. § 7292. We have jurisdiction to decide appeals insofar as they challenge the validity of a decision of the Veterans Court with respect to a rule of law, including the interpretation or validity of any statute or regulation. Id. § 7292(a), (d)(1). We do not have jurisdiction to review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case where, as here, the challenge presents no constitutional issue. Id. § 7292(d)(2).

Mr. Tyrues's appeal presents two related issues of statutory interpretation: When the Board has clearly rejected a request for benefits under one statutory standard and designated that rejection as subject to immediate appeal, while separately remanding the matter for consideration of the claimant's request for benefits on other statutory grounds, (1) can the denial be appealed immediately, i.e., without waiting for completion of the remand, and (2) must the denial be appealed immediately, i.e., within the 120 days specified in section 7266(a), in the absence of equitable tolling? In our earlier decision, now vacated, we addressed and answered affirmatively the same questions, though without the equitable-tolling qualifier: “whether the non-remanded portion of a mixed decision from the Board is final for the purposes of § 7266(a) and must be appealed within 120 days from the date of judgment.” 631...

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