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

[No]{.smallcaps}. 03-600

[Ronnie E. Thornhill, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

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

On Appeal from the Board of Veterans\' Appeals

(Decided March 15, 2004 )

*Sean A. Ravin*, of Washington, D.C., 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; and *Gabrielle L. Clemons* (nonattorney
practitioner), all of Washington, D.C., were on the pleading for the
appellee.

Before [KRAMER]{.smallcaps}, *Chief* *Judge*, and IVERS and STEINBERG,
*Judges.*

KRAMER, *Chief Judge*: The issue before the Court is whether the
appellant filed a timely Notice of Appeal (NOA) from a November 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. Background**

In a November 21, 2002, decision, the Board, inter alia, denied the
appellant\'s claim for service connection for post‑traumatic stress
disorder (PTSD). April 1, 2003, Transmittal of Copy of Board decision
(April 2003 Trans.) at 2, 9. The Board also indicated that \"\[t\]he
issue of entitlement to service connection for a cervical\[‑\]spine
disorder will be the subject of a separate decision\" and informed the
appellant:

> The Board is undertaking additional development with respect to
> \[your\] claim of entitlement to service connection for a
> cervical\[‑\]spine disorder, pursuant to authority granted by
> 38 C.F.R. § 19.9(a)(2) (2002). When the development is completed, the
> Board will provide notice of the development as required by the Rule
> of Practice 903. 38 C.F.R. § 20.903 (2002). After giving notice and
> reviewing \[your\] and/or \[your\] representative\'s response, the
> Board will prepare a separate decision addressing this issue.

April 2003 Trans. at 1, 2. An Appeals Notice is attached to the copy of
the November 2002 decision that the Secretary transmitted to the Court.
*See* April 2003 Trans.; *see also* April 2003 Trans. at 9
(\"**I[mportant]{.smallcaps} N[otice]{.smallcaps}:** We have attached a
VA Form 4597\[, i.e., Appeals Notice,\] that tells you what steps you
can take if you disagree with our decision.\").

Subsequent to its November 2002 decision, the Board, on February 12,
2003, sent to the appellant a letter in which it informed him that the
BVA was \"writing to let \[him\] know that the Board . . . w\[ould\] be
developing additional evidence concerning \[his\] appeal.\" Opposition,
Attachment (Attach.) 2 at 1. In that letter, the Board requested that he
do the following:

> Please complete and sign a VA Form(s) 21-4142, *Authorization and
> Consent to Release Information to the Department of Veterans Affairs
> (VA)*, for each **non‑VA** doctor\[\] and medical care facility that
> treated \[him\] for a [neck/cervical\[‑\]spine disorder]{.underline}
> since \[his\] discharge from service. . . .
>
> If treatment was received from a **VA medical facility**, use the
> enclosed VA \[F\]orm 21-4138, *Statement in Support of Claim*, to
> provide the name of that facility and the approximate dates of
> treatment.

Opposition, Attach. 2 at 1 (underline emphasis added). The BVA closed
the letter by informing the appellant that, \"\[i\]f \[he had\] any
questions concerning this letter,\" he could call the telephone number
provided in the letter. Opposition, Attach. 2 at 2.

On March 25, 2003, the appellant filed pro se an NOA from the November
21, 2002, Board decision. (The Court notes that the appellant\'s NOA was
filed on March 25, 2003, the postmark date that appears on the envelope
in which that NOA was mailed. *See* 38 U.S.C. § 7266(c)(2) (NOA that is
properly addressed to Court and mailed is deemed received on date of
U.S. Postal Service postmark stamped on cover containing NOA).) The
appellant\'s NOA, therefore, was filed with the Court 124 days after
notice of the November 2002 Board decision was mailed. Subsequent to
filing his NOA, the appellant retained counsel to represent him in the
instant appeal.

The Secretary, on May 30, 2003, filed a motion to dismiss. In that
motion, the Secretary asserts that the appellant failed to file a timely
NOA; he argues that, therefore, the Court lacks jurisdiction over the
instant case and should dismiss the appellant\'s appeal. The Secretary,
on that same date, also filed an unopposed motion to stay proceedings,
which the Court granted on June 4, 2003.

On July 1, 2003, the appellant, through counsel, filed an opposition to
the Secretary\'s motion to dismiss. In that opposition, the appellant
initially notes, inter alia, that his NOA \"arrived at the . . . Court
. . . in an official VA Vet Center envelope\"; that \"\[t\]he original
of this envelope remains in the Court\'s file, and the envelope has a
postmark of March 25, 2003\"; and that \"\[n\]either the Vet Center
envelope nor the \[NOA\] have any date markings from . . . VA.\"
Opposition at 2. The appellant first argues that the 120‑day NOA‑filing
period \"should be tolled \[because of\] the Secretary\'s \'unclean
hands\' in delaying the filing \[with the Court\] of his \[NOA\].\"
Opposition at 2. To support this argument, he asserts that VA
\"significantly contributed to his failure to timely file his NOA\"
because \"\[he\] has been receiving psychiatric care from . . . VA,
including inpatient treatment for lengthy periods\[, and h\]e requested
assistance from . . . VA in filing his \[NOA\] with the Court, however,
rather than timely filing his NOA, . . . VA filed his NOA untimely.\"
*Id*. at 3. The appellant alternatively argues that the 120‑day
NOA‑filing period should be tolled because of the confusing nature of
the Board\'s February 2003 letter to him. Opposition at 3. In support of
this argument, the appellant asserts that the February 2003 letter
\"\[was\] so vague that it misled him into believing that his \[PTSD
claim\] had not been decided by the Board or that the Board had
reconsidered and would develop evidence \[relating to his PTSD
claim\].\" *Id*. at 3. He further asserts:

> There is absolutely no indication in the letter that the Board\'s
> evidentiary development pertains only to the cervical\[‑\]spine
> disorder on appeal. The letter does ask for information regarding
> \[the\] appellant\'s treatment for a cervical\[‑\]spine disorder, but
> this does not foreclose the possibility that the Board also sought to
> develop \[the\] appellant\'s PTSD claim on appeal. The letter is
> confusing\[,\] and a reasonable person could easily interpret it as a
> notice by the Board that it intended to develop additional evidence
> for the issues on appeal.

*Id*.

**II. Analysis**

The ultimate burden of establishing jurisdiction by a preponderance of
the evidence 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) v. West*, 160 F.3d 1360,
1363 (Fed. Cir. 1998) (en banc). 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).

Under certain circumstances, however, 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)*, 160 F.3d
at 1364-68 (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.

First, equitable tolling may apply where an appellant \"has actively
pursued his judicial remedies by filing a defective pleading during the
statutory period.\" *Irwin*, 498 U.S. at 96. The United States Court of
Appeals for the Federal Circuit (Federal Circuit) applied this *Irwin*
prong in, inter alia, *Santana‑Venegas v. Principi* and concluded that,
where an appellant, during the 120‑day judicial‑appeal period, misfiles
his NOA with the same VA regional office (RO) from which his claim
originated, he \"\'satisfies the \[due\] diligence requirement \[so as
to preserve his legal rights\].\'\" *Santana‑Venegas*, 314 F.3d 1293,
1298 (Fed. Cir. 2002) (quoting *Jaquay v. Principi*, 304 F.3d 1276, 1288
(Fed. Cir. 2002) (en banc)). The Federal Circuit then held that such a
misfiling of an NOA \"at the same \[RO\] from which the claim
originated\" triggers equitable tolling of the 120‑day NOA‑filing
period. *Santana‑Venegas*, 314 F.3d at 1298; *see Jaquay*, 304 F.3d at
1280 (explaining that, in majority of situations, when veteran seeks to
file claim for benefits or for reopening, he or she does so at RO and RO
adjudicates claim). In so holding, the Federal Circuit referenced that
the RO had not notified Santana‑Venegas, 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) v. Principi* 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 1381,
1385 (Fed. Cir. 2003) (emphasis added). Similar to *Santana‑Venegas*,
*supra*, the Federal Circuit referenced 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, 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\").

The 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 appellant\'s NOA, however, was filed with the Court 124
days after the Board mailed to him notice of its November 2002 decision.
Moreover, the appellant has not demonstrated that there is anything in
this appeal to suggest that tolling of the judicial‑appeal period would
be appropriate under the tolling law applicable to this Court. *See
Irwin*, *Santana‑Venegas*, and *Bailey (Harold)*, all *supra*.
Specifically, the appellant\'s arguments for tolling are unavailing. In
this regard, although the appellant mentions that he has been undergoing
psychiatric treatment with VA, he has not presented any discernible
argument for tolling based on any such care. *See Dudley v. Derwinski*,
2 Vet.App. 602, 603 (1992) (en banc) (Court has not adopted ill health
as basis for equitable tolling). * *With respect to the appellant\'s
unclean‑hands argument, it is not entirely clear what he is contending.
To the extent that he may be seeking equitable tolling pursuant to
*Santana‑Venegas*, *supra*, based on purported delivery of his NOA to
the Vet Center and the Vet Center\'s purported untimely submission of
the NOA to this Court, he has not presented any support for any such
tolling. *See* Opposition at 2-3. Specifically, he has not presented to
the Court up to this point (1) any argument and authority that the Vet
Center is, in the words of the Federal Circuit, the same RO from which
his claim originated, i.e., that the Vet Center has served a purpose
equivalent to the RO in the VA adjudication of his PTSD claim, and (2)
any evidence as to if and when he submitted his NOA to the Vet Center
and under what circumstances; indeed, he appears to concede that no such
evidence exists. *See* Opposition at 2. The appellant has not
demonstrated by a preponderance of the evidence, therefore, that this is
a situation where he \"fil\[ed\] a defective pleading during the
statutory period\" (*Irwin*, 498 U.S. at 96), i.e., misfiled his NOA
with the same RO from which his claim originated, and equitable tolling
of the judicial‑appeal period has not been triggered (*cf.
Santana‑Venegas*, *supra*). To the extent that the appellant may be
seeking equitable tolling under *Bailey (Harold)*, *supra*, despite his
assertions that he sought VA\'s assistance in completing and filing his
NOA, he has not shown that any VA employee accepted the appellant\'s NOA
or indicated that he or she \"would take care of \[the appellant\'s
appeal\].\" *Bailey (Harold)*, 160 F.3d at 1361. The appellant,
therefore, has not shown by a preponderance of the evidence that this is
a situation where he was misled into allowing the NOA‑filing period to
expire; thus, equitable tolling has not been triggered. *Cf*. *Bailey
(Harold)*, *supra*.

As to the appellant\'s confusing‑letter argument, that contention is
unpersuasive for several reasons. First, in its November 2002 decision,
the Board clearly indicated at least twice that the appellant\'s
PTSD‑service‑connection claim was denied, and nothing in the BVA\'s
February 2003 letter even implicitly indicated otherwise. *See* April
2003 Trans. at 2, 9; Opposition, Attach. 2 at 1. Further, the Appeals
Notice attached to, and specifically referred to in, the November 2002
Board decision clearly indicated that an NOA must be filed with the
Court within 120 days after notice of the Board decision (here denial of
the PTSD‑service‑connection claim) is mailed, and nothing in the
February 2003 letter indicated to the contrary. *See* April 2003 Trans.,
Appeals Notice; Opposition, Attach. 2 at 1-2; *see also Cummings*, 136
F.3d at 1472-74 (holding that language utilized in Appeals Notice
accompanying Board decision satisfactorily explained how and when to
pursue BVA reconsideration and to appeal to this Court); *cf. Jaquay*,
304 F.3d at 1284 (stating holding from *Cummings*, *supra*, that
38 U.S.C. § 5104 requires nothing more than general outline of available
procedures for obtaining review of final Board decision). Moreover, the
Board, in the November 2002 decision, clearly stated that it would be
developing the appellant\'s cervical‑spine‑disorder‑service‑connection
claim and made no mention of any development of the denied
PTSD‑service‑connection claim. *See* April 2003 Trans. at 2. Then, in
its February 2003 letter, the Board specifically requested information
relating to the appellant\'s claim for service connection for a
cervical‑spine disorder and made no mention of the appellant\'s claim
for service connection for PTSD. *See* Opposition, Attach. 2 at 1.
Although the Court is sympathetic to the appellant\'s contention that he
was confused, the Board, in the February 2003 letter, included a
telephone number that he could call if he had any questions regarding
that letter. *See* Opposition, Attach. 2 at 2. The appellant has not
averred or demonstrated that he utilized that telephone number and that
he was given any misleading information or advice. *See* Opposition at
1-4. For all of these reasons, the Court concludes that the appellant
has not demonstrated by a preponderance of the evidence that the
Board\'s February 2003 letter caused him to allow the 120‑day NOA‑filing
period to expire. *See Bailey (Harold)*, *supra*; *Cintron*, 13 Vet.App.
at 257 (as to \"cause and effect\" relationship).

Hence, the appellant has not demonstrated by a preponderance of the
evidence that tolling of the judicial‑appeal period would be
appropriate. *See Irwin*, *Santana‑Venegas*, and *Bailey (Harold)*, all
*supra*. The Court thus concludes that the appellant has not met the
burden of demonstrating by a preponderance of the evidence that an NOA
was timely filed. *See* 38 U.S.C. § 7266(a). The Court, therefore, lacks
jurisdiction over the instant appeal based on the evidence and argument
presented here.

**III. Conclusion**

The stay of proceedings is dissolved. Upon consideration of the
foregoing analysis and the parties\' pleadings, the Secretary\'s motion
is granted, and this appeal is DISMISSED for lack of jurisdiction.