**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No]{.smallcaps}. 02-799

[Henry R. Tavares]{.smallcaps}, [Appellant]{.smallcaps},

[v]{.smallcaps}.

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided June 24, 2004 )

*Mary Anne Royle*, of Vancouver, Washington, was on the pleading for the
appellant.

*Tim S. McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Thomas A. McLaughlin*, Special Assistant to the
Assistant General Counsel; *Cristine D. Senseman*, Appellate Attorney;
and *Gabrielle L. Clemons* (non-attorney practitioner), all of
Washington, D.C., were on the pleadings for the appellee.

Before KRAMER, *Chief Judge*, and KASOLD and HAGEL, *Judges.*

KRAMER, *Chief Judge*, filed the opinion of the Court. KASOLD, *Judge,*
filed a dissenting opinion.

KRAMER, *Chief Judge*: Before the Court is the issue of whether the
appellant filed a timely Notice of Appeal (NOA) from a January 18, 2002,
Board of Veterans\' Appeals (Board or BVA) decision. **For the reasons
that follow, the Court will dismiss for lack of jurisdiction this
appeal.**

**I. Procedural History and the Parties\' Pleadings**

On June 5, 2002, the appellant filed pro se an NOA as to the January 18,
2002, BVA decision in which the Board, inter alia, denied entitlement to
service connection for residuals of exposure to hallucinogenic
substances, including paranoia, depression, back problems, total
intolerance to stress with depression and mania, hyperexcitability,
catatonia, violent tendencies, brain wave changes, and lack of
equilibrium. The Court notes that it received the NOA 138 days after the
date that the Board mailed notice of its decision. The Clerk of the
Court (Clerk), on June 12, 2002, ordered the appellant to explain why
his appeal should not be dismissed for lack of jurisdiction. The
appellant filed a response in which he asserts that he believed that Mr.
Alfonzo Padilla of the San Diego, California, VA Regional Office (RO)
had \"attended to\" the appellant\'s appeal \"shortly after \[notice
of\] the BVA decision\" was received and that, at that same time, the
appellant had \"mailed an appeal letter into \[the Court\] . . . as \[he
has\] a tendency to be redundant.\" Appellant\'s June 2002 Response
(Resp.) at 1. In this response, the appellant further asserts that (1)
since January 2002, he had been in contact with Mr. Padilla on numerous
occasions regarding this appeal; (2) after he received a copy of the BVA
decision, he visited the San Diego RO and showed the decision to Mr.
Padilla, who \"vowed to work on \[the appellant\'s\] appeal from a
different angle\"; and (3) Mr. Padilla expressed that he would \"get
\[the appellant\'s appeal\] to \[the Court\] in a timely fashion.\"
*Id*. at 1-2. Further, the appellant asserts that in April 2002 he
telephoned Mr. Padilla in order to check on the status of the appeal; in
May 2002, he again telephoned Mr. Padilla in order to check on the
status of his appeal; and during the May 2002 telephone conversation,
Mr. Padilla informed him that \"it would take between \[eight\] to
\[nine\] months before \[the appellant\] heard back \[from the
Court\].\" *Id.*

Additionally, the appellant asserts that, on June 5, 2002, he met with
Mr. Padilla, who explained to the appellant that he would need to sign
some papers with regard to the processing of his appeal, and that Mr.
Padilla related that he never had processed an appeal to the Court in
the past. *Id*. at 3. On that same date, the appellant asserts, Mr.
Padilla requested that the appellant complete a Declaration of Financial
Hardship form and an NOA and Mr. Padilla stated that he would send with
the NOA a letter on the appellant\'s behalf. *Id*. Finally, the
appellant relates that he received his docket number on June 8, 2002;
that Mr. Padilla \"had assured \[the appellant\] that \[his\] case had
been docketed all along\[;\] and \[that Mr. Padilla had assured him\]
that \[he\] had nothing left to do but wait.\" *Id*. at 2. The Clerk,
noting that the appellant\'s NOA had been received via facsimile from
the San Diego RO, ordered a Secretarial response and stayed proceedings.

In July 2002, the appellant filed an addendum to his June 2002 response.
In this addendum, the appellant states that \"it is \[his\] position
that the deadline for filing \[his NOA\] was tolled when \[he\] was
repeatedly informed (including in writing . . . ) by a highly\[\]placed
VA employee that \[VA\] was filing a\[n NOA\] with the \[Court\] on
\[his\] behalf.\" July 8, 2002, Addendum at 1. He argues that he relied
on VA to assist him in the filing of his appeal and that the Secretary
should not benefit from his unclean hands. *Id*. Attached to this
addendum is a copy of an electronic communication (e-mail) exchange,
dated June 5 and 6, 2002, between the appellant and Mr. Padilla. The
appellant\'s June 5, 2002, e-mail to Mr. Padilla reflects that the
appellant was confirming with Mr. Padilla that \"\[t\]hose two letters\"
were mailed via certified mail, return receipt requested, and the e-mail
contains two U.S. Postal Service (USPS) envelope tracking numbers. July
8, 2002, Addendum, Exhibit (Ex.) 1. The Court presumes that in that
e-mail the appellant was referring to the above‑mentioned June 2002 NOA
and Declaration of Financial Hardship form. (The Court notes that one of
the USPS tracking numbers reflected in the appellant\'s June 2002 e-mail
corresponds to a USPS tracking number imprinted on an envelope
containing a duplicate copy of the appellant\'s June 5, 2002, NOA; that
copy was received by the Court after it received the June 5, 2002, NOA
that had been transmitted via facsimile.) In his June 6, 2002, e-mail
response, Mr. Padilla stated:

> The letter just has to be post\[\]marked before the 16th and that has
> already been done (your receipt is the post\[\]mark). Also, I have a
> report from the \[facsimile\] machine that shows that it was received
> by the \[C\]lerk at \[the Court.\] Whenever you\'re in town\[,\] I\'ll
> give you a copy\[.\]

*Id*.

On September 11, 2002, the Court received from the appellant further
correspondence in which he, inter alia, reiterates his previous
arguments; he attached to that correspondence (1) a copy of the June 5
and 6, 2002, e-mail exchange with Mr. Padilla, and (2) copies of
telephone bills, dated from February to June 2002, reflecting numerous
telephone calls to Mr. Padilla\'s office telephone. September 11, 2002,
Supplemental Correspondence (Corr.) at 1-3, Ex. 2, 4. Included in the
correspondence is a statement of Mrs. Brenda Tavares, wife of the
appellant, in which statement she essentially attests to the veracity of
the appellant\'s asserted version of events. *Id*. The United States
Court of Appeals for the Federal Circuit (Federal Circuit), on
September 16, 2002, issued its decision in *Jaquay v. Principi*, 304
F.3d 1276 (Fed. Cir. 2002) (en banc).

On September 17, 2002, the Secretary filed his response with the Court.
He argues that the appellant\'s NOA is untimely; that there is no
evidence that the appellant filed an NOA prior to the expiration of the
judicial-appeal period; and that equitable tolling is not warranted
because Mr. Padilla\'s actions and statements did not induce the
appellant into allowing the filing deadline to pass. Secretary\'s Resp.
at 2-4. In support of his arguments, the Secretary attached to his
response a Declaration from Mr. Padilla. In his Declaration, Mr. Padilla
stated that he is a Management Analyst and Community Affairs Officer at
the San Diego RO. Declaration at 1. Mr. Padilla\'s Declaration reflects
that, in late January 2002, he had met with the appellant regarding the
January 2002 BVA decision and had explained to the appellant his
appellate rights and the Court\'s procedures. *Id.* Mr. Padilla\'s
Declaration further reflects that, although the appellant had asked Mr.
Padilla to file his appeal \"when \[the appellant\] completed the
paperwork,\" Mr. Padilla had declined and had explained that only the
appellant could complete the Court\'s procedures. *Id*. at 1-2. In his
Declaration, Mr. Padilla acknowledged that, during their January 2002
meeting, he had informed the appellant that he would ensure that the
appellant\'s \"\[claims\] file was ready for a request from the
\[Court\].\" *Id*. at 2.

According to Mr. Padilla\'s assertions in his Declaration, the
appellant, a few weeks after their January 2002 meeting, inquired about
\"\[the Court\'s\] time frames\" and Mr. Padilla did not provide that
information to the appellant and did not \"check . . . to see if \[the
appellant\'s claims\] file had been requested by \[the Court\].\" *Id.*
Mr. Padilla further asserted that, on June 5, 2002, the appellant
contacted him and he located the appellant\'s claims file, which was
still present at the San Diego RO. Declaration at 2*.* Because he
thought the claims file already would have been transferred to
Washington, D.C., in connection with the appeal, Mr. Padilla had
\"expressed \[his\] concern to \[the appellant\] and \[had\] asked \[the
appellant\] if he had kept a copy of his appeal paperwork.\" *Id*.
During a later conversation that same day, the appellant had responded
that the Court did not have his appeal and that he could not locate his
paperwork. *Id*. With regard to the appellant\'s June 2002 visit to the
San Diego RO, Mr. Padilla asserted in his Declaration that he had
assisted the appellant in completing \"another set of forms to send to
the \[Court\]\" and that he had faxed to the Court the appellant\'s NOA
and his Declaration of Financial Hardship form. *Id*. Last, the
Declaration reflects Mr. Padilla\'s assertion that \"\[a\]t no time did
\[he\] tell \[the appellant\] that \[he\] would handle \[the
appellant\'s\] appeal for him\" and that he had no reason to believe
that the appellant did not submit his NOA to the Court in January 2002.
*Id*. at 2-3.

In August and September 2002, the Court received from the appellant (and
subsequently accepted for filing) two additional pieces of
correspondence. In his September 17, 2002, correspondence, the appellant
argues that he never received from the Court a response regarding a
request for information on filing an appeal that he allegedly had sent
to the Court in January 2002 and attributes the Court\'s non-response to
that request to the situations created as a result of September 11,
2001, and the subsequent anthrax-contamination scare involving the USPS.
September 17, 2002, Corr. at 3. The appellant\'s September 20, 2002,
submission appears to be a signed and certified affidavit from Mrs.
Tavares in which she essentially reiterates the appellant\'s
allegations. September 20, 2002, Corr. at 1-5. Subsequently, the Court
stayed this matter in order for the appellant to attempt to retain
counsel. Also, the Court notes that, on December 17, 2002, the Federal
Circuit issued *Santana-Venegas v. Principi*, 314 F.3d 1293 (Fed. Cir.
2002).

In January 2003, counsel for the appellant entered her appearance and,
on April 11, 2003, the appellant moved for permission to submit a
supplemental response to the Court\'s June 12, 2002, order. On that same
date, the Court received (and subsequently accepted for filing) the
appellant\'s supplemental response (with attachments). In this
supplement, the appellant disagrees with the assertions in Mr.
Padilla\'s Declaration and argues that, because of his conversations
with Mr. Padilla from July 2001 to June 2002 and because Mr. Padilla had
intervened in a previous matter involving the appellant\'s veterans
service officer (VSO), he believed that his appeal had been filed by Mr.
Padilla. April 2003 Resp. at 1, 5-9. He further argues that Mr.
Padilla\'s alleged statements to him that he had a docket number and Mr.
Padilla\'s other statements about the Court\'s appellate process misled
the appellant to believe that his NOA had been filed in the January 2002
to June 2002 time frame. *Id*. He also essentially argues that Mr.
Padilla\'s e-mail reflecting that the appellant had until June 16, 2002,
to file an NOA caused him to file an untimely NOA in June 2002. *Id*.
Thus, he requests that the Court apply equitable tolling to permit his
appeal to continue. *Id*. at 9. In support of his arguments, the
appellant attached to his April 2003 response, inter alia, an affidavit,
in which he chronicles his pre-2002 interactions with Mr. Padilla
regarding the conduct of a VSO and his interactions with Mr. Padilla
subsequent to receiving notice of the Board\'s January 2002 decision.
April 2003 Resp., Ex. 1 at 1-2. In essence, the appellant also
reiterates his assertions that, based on his prior experiences and
contacts with Mr. Padilla, he believed that Mr. Padilla would assist him
with his appeal. April 2003 Resp., Ex. 1 at 3. The Court notes that the
appellant also attached copies of his telephone bills, dated from July
2001 to June 2002, which reflect several telephone calls made to Mr.
Padilla\'s office telephone number. On June 4, 2003, the Court, inter
alia, ordered the Secretary to file a supplemental response addressing
the appellant\'s April 11, 2003, pleading and the impact, if any, of
*Santana-Venegas* and *Jaquay*, both *supra,* on the instant matter. The
Court otherwise stayed proceedings.

In July 2003, the Secretary filed a supplemental reply in which he
argued, inter alia, that the holdings in *Santana-Venegas* and *Jaquay*,
both *supra*, which both address the availability of equitable tolling
in the veterans benefits context, are inapposite to the instant matter.
Secretary\'s July 2003 Reply at 4-6. Specifically, he argues that this
matter is unlike *Jaquay* because it does not involve the filing of a
motion for BVA reconsideration and because there is no record of a
defective pleading having been filed within the statutory-appeal period.
*Id*. at 4-5. He also argues that this case \"is not affected by
*Santana-Venegas*\" because, again, there is no record of a defective
pleading having been filed within the statutory-appeal period and
because \"it does not appear that \[the appellant\] was misled or
induced into allowing the filing deadline to pass.\" *Id*. at 5.
Additionally, the Secretary argues that this case is unlike *Bailey
(Harold) v. West*, 160 F.3d 1360 (Fed. Cir. 1998) (en banc), because Mr.
Padilla specifically informed the appellant that he could not file an
NOA on the appellant\'s behalf and because there is no evidence that Mr.
Padilla misled the appellant. Secretary\'s July 2003 Reply at 3. Thus
the Secretary contends that this case must be dismissed for lack of
jurisdiction because the appellant\'s NOA was not filed within the
judicial-appeal period and because equitable tolling is not warranted.
*Id*. at 6.

The Federal Circuit, on December 15, 2003, issued its opinion in
*Bailey* *(Edward) v. Principi*, 351 F.3d 1381 (Fed. Cir. 2003).
Thereafter, the Court ordered the Secretary to file with the Court any
and all VA Form 119s (Report of Contact forms) in the appellant\'s
claims file dated between January 18, 2002, and June 5, 2002. The
Secretary, on January 15, 2004, advised the Court that the appellant\'s
claims file contains no VA Form 119s dated between January 18, 2002, and
June 5, 2002. Subsequently, the appellant provided the Court citations
to supplemental authority to include *Bailey (Edward)*, *supra,* and
*Barrett v. Principi*, 363 F.3d 1316 (Fed. Cir. 2004). In support of the
arguments presented in his April 2003 pleading, the appellant contends,
inter alia, that *Barrett* \"reinforces the Federal Circuit\'s findings
that equitable tolling \[is\] available \'in a variety of
circumstances\'\[\] now to include cases where a veteran failed to meet
a deadline due to mental illness.\" Appellant\'s April 6, 2004, Corr. at
1-2 (internal citation not provided).

**II. Analysis**

The ultimate burden of establishing jurisdiction rests with the
appellant. *See McNutt v. G.M.A.C.*, 298 U.S. 178, 189 (1936);
*Bethea v. Derwinski*, 2 Vet.App. 252, 255 (1992). Pursuant to 38 U.S.C.
§ 7266(a), in order for a claimant to obtain review of a BVA decision by
this Court, that decision must be final and the person adversely
affected by that decision must file a timely NOA with the Court. *See
Bailey (Harold)*, 160 F.3d at 1363. To have been timely filed under
38 U.S.C. § 7266(a) and Rule 4 of this Court\'s Rules of Practice and
Procedure, an NOA generally must have been received by the Court (or, in
certain circumstances, be deemed received) within 120 days after notice
of the underlying final BVA decision was mailed. *See Cintron v. West*,
13 Vet.App. 251, 254 (1999). The Court is authorized to make findings of
fact in determining whether an NOA was timely filed. *See Stokes v.
Derwinski*, 1 Vet.App. 201, 203-04 (1991).

In the instant appeal, the signed and date-stamped copy of the Board
decision filed by the Secretary reflects that the appellant was fully
advised of his appellate rights in accordance with 38 U.S.C. § 5104.
*See Cummings v. West*, 136 F.3d 1468, 1470-74 (Fed. Cir. 1998). The
Court received the appellant\'s NOA on June 5, 2002, 138 days after the
date on which the Board mailed notice of its January 2002 decision. The
Court notes that May 20, 2002, was the last day of the judicial-appeal
period. Although the appellant essentially asserts that in January 2002
he had \"mailed an appeal letter into \[the Court\]\" (Appellant\'s June
2002 Resp. at 1) and, at some other point of time, had sent
correspondence to the Court requesting information regarding the filing
of an appeal (*see* Appellant\'s September 17, 2002, Corr. at 3), the
Court notes that it did not receive any such documents and that there is
no evidence (other than his assertions) to suggest that these documents
were mailed. *Cf*. Appellant\'s July 8, 2002, Addendum, Ex. 1
(appellant\'s June 5, 2002, e-mail to Mr. Padilla in which appellant
provides USPS tracking numbers as to envelopes containing his June 2002
NOA and Declaration of Financial Hardship form, which envelopes were
sent certified mail, return receipt requested). To the extent that the
appellant may be arguing implicitly that the September 11, 2001, tragedy
and/or the anthrax-contamination scare involving the USPS may have
prevented the Court from receiving \"an appeal letter\" (Appellant\'s
June 2002 Resp. at 1) or any other correspondence that he had allegedly
mailed to the Court any time prior to the Court\'s receipt of the June
2002 NOA, that argument is unavailing because there is no evidence that
any such documents were mailed to or received by the Court. *See* *Reed
v. Principi*, 17 Vet.App. 380, 383 (2003) (per curiam order) (rejecting
that appellant\'s argument that anthrax-contamination scare delayed
Court\'s receipt of NOA because Court declined to speculate as to \"how
any anthrax-related mail-processing delay . . . may have affected when
the appellant\'s NOA may have been delivered to the Court\"). Thus,
because the appellant\'s NOA was not received within the 120-day
judicial‑appeal period (on or before May 20, 2002), his appeal can
proceed only if the Court applies equitable tolling to deem the June
2002 NOA timely filed. *See* 38 U.S.C. § 7266; *Santana-Venegas,* 314
F.3d at 1298; *Jaquay*, 304 F.3d at 1288; *Bailey* *(Harold)*, 160 F.3d
at 1364-68*.*

Under certain circumstances, equitable tolling of the judicial-appeal
period may be appropriate. *See Irwin v. Dep\'t of Veterans Affairs*,
498 U.S. 89, 96 (1990); *Bailey (Harold)*, *supra* (discussing equitable
tolling in veterans benefits context); *Evans v. West*, 12 Vet.App. 396,
399 (1999). According to the *Irwin* court, equitable tolling has been
allowed in the two situations discussed below. Courts, however, \"have
generally been much less forgiving in receiving late filings where the
\[appellant\] failed to exercise due diligence in preserving his legal
rights.\" *Irwin*, 498 U.S. at 96.

Under the first prong in *Irwin*, equitable tolling may apply where an
appellant \"has actively pursued his judicial remedies by filing a
defective pleading during the statutory period.\" *Id.* The Secretary
contends that the appellant has not satisfied this *Irwin* prong. The
Federal Circuit, in three instructive opinions, has applied this *Irwin*
prong.

In *Jaquay*, the Federal Circuit concluded that, where an appellant,
during the 120‑day judicial­‑appeal period, misfiles his motion for Board
reconsideration with the same RO from which his claim originated, he
\"\'exercise\[s\] due diligence in preserving his legal rights.\'\"
*Jaquay*, 304 F.3d at 1287-88 (quoting *Irwin*, 498 U.S. at 96); *see
Rosler v. Derwinski*, 1 Vet.App. 241, 249 (1991) **(setting forth
requirements for Court to have jurisdiction over appeal when appellant
has filed motion for reconsideration of underlying Board decision before
filing NOA with Court; such motion filed with BVA within 120-day
judicial-appeal period generally tolls judicial-appeal period for appeal
to Court)**. The Federal Circuit held that, in such a situation, an
appellant \"trigger\[s\] equitable tolling\" of the 120‑day period
within which to file a reconsideration motion with the BVA. *Jaquay*,
304 F.3d at 1289.

Subsequently, in *Santana‑Venegas*, the Federal Circuit concluded that,
where an appellant, during the 120‑day judicial‑appeal period, misfiles
his NOA with the same RO from which his claim originated, he
\"\'satisfies the \[due\] diligence requirement \[so as to preserve his
legal rights\].\'\" *Santana‑Venegas*, 314 F.3d at1298 (quoting
*Jaquay*, 304 F.3d at 1288). The Federal Circuit then held that such a
misfiling of an NOA triggers equitable tolling of the 120‑day NOA‑filing
period. *Id.* In so holding, however, the Federal Circuit stressed that
the RO had not notified that claimant, until 70 days (which was after
the 120‑day appeal period had expired) after having received his NOA,
that he should have filed that NOA with this Court. *See
Santana‑Venegas*, 314 F.3d at 1295‑98 (also noting that appellant had
acted upon that advice almost immediately by refiling his NOA with this
Court and that there were VA policies on timely assistance and timely
response (within 10 days of receipt) to all correspondence received by
VA). The Federal Circuit again applied this *Irwin* prong in *Bailey
(Edward)* and concluded that, where an appellant, during the 120‑day
judicial‑appeal period, \"attempts to file a\[n NOA\] by completing a
document that is clearly intended to serve as a\[n NOA\] and . . .
ha\[ving\] that document delivered to *the* \[*RO*\] *from which*
\[*his*\] *claim originated* . . . \[, he\] is entitled to invoke the
doctrine of equitable tolling.\" *Bailey (Edward)*, 351 F.3d at 1385
(emphasis added). Similar to *Santana‑Venegas*, *supra*, the Federal
Circuit refer to the fact that, although Bailey, within the 120‑day
appeal period (specifically, on the 107th day), had misfiled his NOA
with the RO from which his claim originated, the RO had taken \"no
action with respect to that document until \[nine months after receiving
the document,\]\" and then only upon inquiry from Bailey\'s
representative. *Id*. at 1383.

Further, under the second prong of *Irwin*, equitable tolling may be
available where an appellant \"has been induced or tricked by his
adversary\'s misconduct into allowing the filing deadline to pass.\"
*Irwin*, 498 U.S. at 96. In applying this second *Irwin* prong, the
Federal Circuit held in *Bailey (Harold)* that, \"\[g\]iven the
particular relationship between veterans and the government,\" equitable
tolling could apply where, \"\[a\]lthough there is no suggestion of
misconduct,\" VA\'s conduct misled a claimant \"into allowing the filing
deadline to pass.\" *Bailey (Harold)*, 160 F.3d at 1365; *see Cintron,*
13 Vet.App. at 257 (\"cause and effect\" relationship must exist, i.e,
appellant relied to his own detriment on action that VA took, or should
have taken but did not, and equitable tolling is not invoked if \"the
appellant\'s reliance on VA was not the cause of the late filing\").

In addition, the Federal Circuit recently held that, in certain
circumstances, \"mental illness may justify the tolling of \[38 U.S.C.
§\] 7266(a)\'s 120-day period for appeal.\" *Barrett*, 363 F.3d at 1320.
However, the Court notes that, in his pleadings, the appellant has not
asserted that \"the failure to file \[an NOA\] 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.\" *Id*. at 1321
(internal citations omitted). Accordingly, the Court in this opinion
will not address further any potential applicability of *Barrett,
supra*, to this matter. Nevertheless, the appellant is free to raise any
such argument in a motion for reconsideration that is supported by
appropriate evidence. *See* [U.S. Vet. App. R.
35(]{.smallcaps}a[).]{.smallcaps}

With respect to the Secretary\'s argument that *Santana-Venegas* and
*Jaquay* are inapposite because the instant matter does not involve a
misfiled or defective pleading, the Court agrees. Those opinions
explicitly apply to instances where a claimant\'s misfiled or defective
pleading satisfied the first prong under *Irwin, supra*, of pursuing his
judicial remedy. *See Santana-Venegas*, 314 F.3d at 1297-98; *Jaquay*,
304 F.3d at 1288. Here, there is no evidence that the appellant misfiled
a pleading within the 120-day judicial-appeal period; the only NOA that
has been documented as being received in this matter was received by the
Court on June 5, 2002. *See* 38 U.S.C. § 7266(b) (appellant shall file
NOA with Court). Specifically, although the Court notes that the
appellant has provided copies of several telephone bills, dated between
January and June 2002, and the e-mail exchange between him and Mr.
Padilla on June 5 and 6, 2002, none of these documents constitute a
filing within the judicial-appeal period. Thus, the appellant has not
demonstrated that, prior to the expiration of the judicial-appeal
period, he was pursuing his judicial remedies as to the January 18,
2002, BVA decision. *See Bailey (Harold),* 160 F.3d at 1364*.*
Accordingly, the appellant has not satisfied the first prong of *Irwin*.
*See Irwin,* 498 U.S. at 96; *Bailey (Harold), supra.*

With respect to equitable tolling under the second prong of *Irwin*,
although the appellant argues that his past interactions with Mr.
Padilla, as well as their communications between January and June 2002,
misled the appellant into believing that Mr. Padilla had filed his
appeal, these arguments are unavailing because the Court cannot conclude
that any documents in the materials before it demonstrate by a
preponderance of the evidence, *see McNutt* and *Bethea*, both *supra*,
that Mr. Padilla misled or induced the appellant into allowing the
judicial‑appeal period to expire. *See Brown v. West*, 13 Vet.App. 88,
91 (1999) (holding that, where allegation that appellant was tricked or
induced by VA into allowing NOA-filing deadline to expire was not
documented in materials before Court and where appellant receives notice
of his appellate rights, *Bailey (Harold),* 160 F.3d at 1360, is
inapposite). In this regard, the Court notes that in *Bailey* *(Harold)*
the facts regarding VA\'s misleading conduct were undisputed whereas,
here, the Secretary, through Mr. Padilla\'s Declaration, has provided
evidence reflecting that no VA misconduct occurred and that the
appellant was informed, as early as January 2002, that VA would not file
an appeal on his behalf. *See* *Bailey (Harold),* 160 F.3d at 1361.

Moreover, the appellant\'s telephone bills dated from January to June
2002 do not reflect the substance of any conversation that he may have
had with Mr. Padilla and there are no Report of Contact forms from that
same time period; it does not appear that the appellant asserts that Mr.
Padilla had any duty to complete Report of Contact forms. In this
regard, although the VA Adjudication Procedure Manual, M21‑1 (M21-1),
Part III, paragraph 11.18(b), provides that \"\[a\]ll information
received by telephone from a claimant must be completely documented on .
. . \[a\] Report of Contact\[ form\] or the equivalent,\" the Court
cannot conclude that Mr. Padilla had any such duty. Even **assuming that
M21-1, Part III, paragraph 11.18(b), may be considered a substantive
rule, *see Hayes v. Brown,* 5 Vet.App. 60, 67 (1993); *Fugere v.
Derwinski*, 1 Vet.App. 103, 107 (1990), there are at least three reasons
why that provision does not demonstrate that Mr. Padilla, a Management
Analyst and Community Affairs Officer, had any duty to fill out a VA
Form 119 after his contacts with the appellant. First, paragraph 11.18
is applicable to VA employees authorized to act under 38 C.F.R. § 3.100
(2003), which generally includes adjudicative personnel. *See* 38 C.F.R.
§ 3.100 (delegating to the Under Secretary for Benefits and supervisory
or adjudicative personnel within Veterans Benefits Administration
designated by the Under Secretary to \"make findings and decisions under
applicable laws, regulations, \[and\] precedents . . . as to entitlement
of claimants to benefits under all laws administered by . . . \[VA\]\").
There is nothing in the materials before the Court to suggest that Mr.
Padilla is an adjudicative personnel. Next, M21-1, Part III, Chapter 11,
Subchapter III, the subchapter which contains paragraph 11.18, deals
with \"Use of Telephone, E‑mail, and Fax for Claims Development.\"
M21-1, Part III, SubCh. III. There is nothing in the materials before
the Court to suggest that Mr. Padilla takes part in any claims
development. Last, paragraph 11.18 appears to relate to instances where
VA adjudicative personnel request information. *See* M21-1, Part III,
para. 11.18 (a)(1)-(3). There is no evidence before the Court that
reflects that Mr. Padilla requested information from the appellant.
Thus, the Court cannot conclude that Mr. Padilla had a duty to fill out
VA Form 119s with respect to his contacts with the appellant.**

**Further, Mr. Padilla\'s June 6, 2002, e-mail, which may indicate his
erroneous belief that June 16, 2002, was the last day of the
appellant\'s judicial-appeal period, was transmitted more than two weeks
after the May 20, 2002, expiration of the judicial‑appeal period. Thus,
because the e-mail exchange occurred after the expiration of the
judicial-appeal period, the appellant has not demonstrated that that
June 2002 e-mail exchange misled or induced him into allowing the
judicial‑appeal period to expire. *See Cintron*, 13 Vet.App. at 257;
*Brown, supra*. Inasmuch as that e-mail could have a bearing on Mr.
Padilla\'s credibility on the ground that it documents his efforts to
assist the appellant in filing an appeal after Mr. Padilla purportedly
had declined to file the appeal (*see* Declaration at 1-2), the Court
cannot conclude that the appellant\'s and his wife\'s statements are
more credible than Mr. Padilla\'s statements. *See Stokes, supra.* In
this regard, the Court notes, with respect to the appellant\'s
credibility, that he has alleged that he sent to the Court \"an appeal
letter,\" Appellant\'s June 2002 Resp. at 1, but that the Court has not
received any such filing. Similarly, the appellant initially asserted
that Mr. Padilla had \"vowed to work on \[the appellant\'s\] appeal from
a different angle\" but then asserted that Mr. Padilla had stated that
he simply would send a letter on the appellant\'s behalf after Mr.
Padilla had related to the appellant that he never had processed an
appeal to the Court. Appellant\'s June 2002 Resp. at 1-3.**

**The dissenting Judge, in concluding that the appellant\'s statements
are more credible than Mr. Padilla\'s, fails to account for the
above-mentioned concerns regarding the appellant\'s statements. Instead,
he relies on evidence of limited probative value to conclude that \"the
facts . . . weigh significantly more in favor of \[the appellant\'s\]
recollection of events\[\] than they weigh in favor of Mr. Padilla\'s.\"
*Post at* \_\_. Specifically, although the appellant may have visited
Mr. Padilla and made telephone calls to his office, the Court cannot
conclude that the appellant\'s version of what occurred during any visit
or telephone call to Mr. Padilla is more credible than Mr. Padilla\'s
version of events. In this regard, the Court notes that, at best, the
evidence as to what occurred is in equipoise.**

**The equipoise standard of 38 U.S.C. \_ 5107(b), however, applies only
to the Secretary\'s, not the Court\'s, determinations; the applicable
standard here is the preponderance of the evidence standard under which
it is the appellant\'s burden to demonstrate that he was misled or
induced into allowing the judicial-appeal period to expire. *See* 38
U.S.C. § 7266(a); *McNutt* and *Bethea,* both *supra*. Consequently, the
Court concludes that the appellant has not met this burden nor the
burden of demonstrating by a preponderance of the evidence that his NOA
was timely filed. *See id*. Therefore, the Court lacks jurisdiction to
review this appeal.**

**III. Conclusion**

Upon consideration of the foregoing and the parties\' pleadings, this
appeal is DISMISSED for lack of jurisdiction.

**KASOLD, J., *dissenting*: This case falls squarely within the
equitable tolling parameters established in *Bailey v. West*, 160 F3d
1360 (1998), which held that, even without a finding of any misconduct
on the part of an employee of the Department of Veterans Affairs, the
time to file an appeal is equitably tolled when the veteran has been
\"lulled . . . into accepting and relying upon the advice and aid of the
government\" and thereby \"misled . . . into allowing the filing
deadline to pass.\" *Id* at 1365. Mr. Tavares was so lulled in this
case.**

**According to Mr. Tavares, Mr. Padilla had been helping him with his
claim since July 2001. Mr. Tavares submitted telephone records
reflecting numerous calls from July 2001 through July 2002 to Mr.
Padilla\'s telephone number at the San Diego Regional Office. He also
submitted a copy of a September 2001 letter to Mr. Padilla waiving his
right to a Board hearing. On January 22 or 23, 2002, the day Mr. Tavares
received the decision of the Board denying his claim, he and his wife
drove over 60 miles to meet with Mr. Padilla to discuss an appeal.**
**During that meeting, Mr. Tavares asserts that he was told by Mr.
Padilla that he would \"work on his appeal from a different angle,\" and
Mr. Tavares came away from that meeting with the understanding that Mr.
Padilla \"would see that the claim went into the Court of Veteran\'s
Appeal and \[that Mr. Padilla\] would send a letter of support.\"**[^1]

**Mr. Tavares states that in March 2002 he was advised by Mr. Padilla
that his appeal had been filed and assigned a docket number, and that
Mr. Padilla agreed to \"go digging\" in the file for the docket number
and provide it to Mr. Tavares. Mr. Tavares further states that he
continued to maintain telephone contact with Mr. Padilla over the next
several months trying to get his docket number and information about his
appeal; this included numerous voice messages. In a May conversation
with Mr. Padilla, Mr. Tavares states that he was told that it would take
8 to 9 months before his case would be heard.**

**On June 5, 2002, when he was advised by Mr. Padilla that some
documents needed to be signed, Mr. Tavares and his wife undertook the
60-mile trip that same day to meet with Mr. Padilla and complete another
Notice of Appeal and Declaration of Financial Hardship, which were then
faxed to the Court by Mr. Padilla. Mrs. Tavares submitted an affidavit
dated September 17, 2002, supporting the statements of her husband.**

**In contrast to Mr. Tavares\' statements, Mr. Padilla does not mention
assisting Mr. Tavares as early as July 2001, implying that he first met
Mr. Tavares in January 2002. While Mr. Padilla states that he told Mr.
Tavares at the January meeting that he was not able to help him file his
appeal, he admits to helping him do exactly that in June, although no
explanation is provided as to why such assistance was permitted in June
but not in January. Mr. Padilla also acknowledges talking to Mr. Tavares
a few weeks after the January meeting, although he states that he told
Mr. Tavares that he could neither provide nor obtain information about
Court time frames; strangely, Mr. Padilla makes no mention of the
numerous calls made to him by Mr. Tavares.**[^2] **Mr. Padilla states
that he also told Mr. Tavares on June 5, 2002, that he had no way of
contacting the Court and that he was concerned about the appeal because
the claims file was still in the office. Mr. Padilla confirms that Mr.
Tavares came to his office that same day and that they sat down together
and completed another set of forms, and that Mr. Padilla faxed those
forms to the Court.**

**Without ascribing bad faith to either party, the facts, in my opinion,
weigh significantly more in favor of Mr. Tavares\' recollection of
events, than they weigh in favor of Mr. Padilla\'s. *See Stokes v.
Derwinski*, 1 Vet.App. 201, 203-04 (1991) (authorizing the Court to find
facts for jurisdictional purposes). It is undisputed that Mr. Tavares
drove over 60 miles to meet with Mr. Padilla immediately upon receipt of
his notice of the Board decision and again immediately upon learning
that an appeal had not been filed, and that numerous phone calls were
made by Mr. Tavares to Mr. Padilla\'s office phone number. These actions
evidence Mr. Tavares\' interest in appealing his claim and his belief
that he would receive assistance from Mr. Padilla. Indeed, Mr. Tavares
made at least 19 phone calls to Mr. Padilla from the date he met with
him on January 22 or 23, 2001, to discuss the appeal through June 5,
2001, when the appeal was filed by Mr. Padilla on behalf of Mr.
Tavares,**[^3] **and there is no reasonable, alternative explanation
proffered by the Secretary or Mr. Padilla, or consistent with the facts
in this case, other than that Mr. Tavares believed Mr. Padilla \"would
see that the claim went into the Court of Veteran\'s Appeal and \[that
Mr. Padilla\] would send a letter of support.\" It is also undisputed
that Mr. Padilla helped Mr. Tavares complete the appeal forms and that
he faxed them to the Court. This confirms, at least in the end, Mr.
Tavares\' belief regarding assistance from Mr. Padilla. The fact that
Mr. Padilla helped complete the appeal forms and fax them to the Court
also weighs against the recollection of Mr. Padilla that he had
repeatedly told Mr. Tavares that he could not assist him and that he had
no way of contacting the Court; indeed, it weighs in support of Mr.
Tavares\' understanding that Mr. Padilla \"would see that the claim went
into the Court of Veteran\'s Appeal \[sic\] and \[that Mr. Padilla\]
would send a letter of support.\"**

**Mr. Tavares\' behavior in relying on Mr. Padilla\'s assistance to file
his claim also is consistent with the documentation he produced and the
statements he and his wife submitted to this Court, whereas Mr.
Padilla\'s behavior in actively filing the appeal in June 2001 is in
direct contradiction to the statements that he claims to have made to
Mr. Tavares and the statement that he made to this Court regarding his
ability to provide assistance to Mr. Tavares. Mr. Padilla's failure to
address the extended contact and working relationship he had with Mr.
Tavares from June 2001 through June 2002 and beyond, and his failure to
address the many phone calls made to him between January and June 2002,
also weigh against the accuracy of his recollection of events. In short,
Mr. Padilla's statement to this Court is inherently inconsistent with
his behavior, his previous assertions, his own statement, and the
documented facts.**

**Overall, the evidence supports a conclusion that Mr. Tavares has
demonstrated by a preponderance of evidence that he was \"lulled . . .
into accepting and relying upon the advice and aid of the government\"
and thereby \"misled . . . into allowing the filing deadline to pass.\"
*See Bailey* at 1365. Finally, the Secretary has not alleged, and I fail
to perceive, any prejudice to the Secretary by a finding that equitable
tolling is applicable in this case. *See Barrett v. Principi*, 363 F.3d
1316, 1320 (2004).**

**For the reasons stated above, I respectfully dissent.**

[^1]: **The majority notes that Mr. Tavares asserted that he sent a copy
    of his appeal to the Court in January 2001, and further notes that
    the letter was never received by this Court. This seems inapposite
    to the issue under consideration, as lack of proof of mailing an
    appeal does not translate into lack of credibility of the veteran
    who says he mailed it. Documents get lost in the mail and even lost
    at this Court. *See e.g., Evans v. Principi*, 17 Vet.App.41, 42
    (2003) (lost or misfiled document). At best, Mr. Tavares' statement
    that he mailed a copy of an appeal to the Court is simply a neutral
    fact given the nature of the issue before the Court; i.e., whether
    equitable tolling is applicable in this case because Mr. Tavares was
    lulled by the government into letting the filing deadline pass. *See
    Bailey*, 160 F3d at 1365. I note that the mailing of a copy of an
    appeal is not inconsistent with Mr. Tavares' repeated statements,
    and the indications of all the hard facts in this case, that Mr.
    Padilla was assisting Mr. Tavares in filing his appeal.**

[^2]: **Although not dispositive in my opinion, Mr. Padilla did not
    document any of his conversations with Mr. Tavares even though
    apparently required to do so by the Veterans Benefits
    Administration\'s M21‑1 Manual. *Cf.* *Fugere v. Derwinski*, 1
    Vet.App 103, 107 (1990) (provisions in the M21‑1 Manual that do not
    merely clarify or explain an existing rule or statute have the force
    of law); *McCormick v. Gober*, 14 Vet.App 39, 46‑47 (2000)
    (substantive provisions in the M21‑1 Manual are enforceable against
    the Secretary in this Court).**

[^3]: **Phone records submitted by Mr. Tavares show that he also called
    Mr. Padilla numerous times before and after these dates.**