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

[No]{.smallcaps}. 02-2455

[John E. Claiborne, Appellant]{.smallcaps},

[v.]{.smallcaps}

[R. James Nicholson,]{.smallcaps}

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

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided June 8, 2005 )

*Darla J. Lilley*, of Hughes Springs, Texas, was on the pleading for the
appellant.

*Tim 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 STEINBERG, HAGEL, and LANCE, *Judges.*

STEINBERG, *Judge*: On December 28, 2002, veteran John E. Claiborne (the
appellant), then pro se, filed a Notice of Appeal (NOA) seeking review
of a July 24, 2002, Board of Veterans\' Appeals (Board or BVA) decision
that determined that new and material evidence had not been presented to
reopen a previously and finally disallowed claim for Department of
Veterans Affairs (VA) service connection for a left-eye disorder. The
appellant\'s NOA was received by the Court more than 120 days after the
date stamped on the Board decision. In response to a Court order, the
appellant, through counsel, filed a pleading urging that the Court
should not dismiss his appeal; his basis for that contention was that he
is suffering from dementia or Alzheimer\'s disease, which prevented him
from timely filing his NOA.

In June 2003, the Court, in a single-judge order, noting that ill health
has not been adopted by this Court as a basis for equitable tolling,
dismissed the instant appeal for lack of jurisdiction. *Claiborne v.
Principi*, No. 02-2455, 2003 WL 21436508, at \*1 (Vet. App. June 17,
2003). Thereafter, the appellant appealed to the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit), which vacated this Court\'s
decision and remanded the case for further proceedings consistent with
that court\'s decision in *Barrett v. Principi*, 363 F.3d 1316 (Fed.
Cir. 2004). *Claiborne v. Principi*, No. 03-7214, 2004 WL 1637367, at
\*1 (Fed. Cir. July 7, 2004). The Federal Circuit issued its mandate in
the instant case on August 30, 2004. On remand here, the parties filed
supplemental pleadings. On March 8, 2005, the Court, by single-judge
order, dismissed the appeal for lack of jurisdiction. *Claiborne v.
Nicholson*, No. 02-2455, 2005 WL 646839, at \*6 (Vet. App. 2005).
Thereafter, the appellant filed a timely motion for a panel decision.
The Court will grant the appellant\'s motion for a panel decision,
withdraw the single-judge order, and issue this opinion in its stead.
For the reasons set forth below, the Court will dismiss the appeal for
lack of jurisdiction.

**I. Relevant Background**

On January 14, 2003, the Clerk of the Court, after noting that the Court
could not review a BVA decision unless the claimant had filed an NOA
with the Court within 120 days after the BVA mailed notice of its
decision, ordered the appellant to show cause why the instant appeal
should not be dismissed for lack of jurisdiction. On March 28 and
April 22, 2003, the appellant, through counsel, filed responses to that
order. The appellant asserts (1) that he is an elderly veteran who is
suffering from dementia or Alzheimer\'s disease and has two daughters
who are seriously ill and a wife who is suffering from a serious injury,
which resulted after she fell off the front steps to their house and
which occurred subsequent to the Board decision; (2) that he has stress
associated with his wife\'s injury and his daughters\' illnesses, is
confused and disoriented at times, and cannot account for dates and
times; and (3) that his mental disability prevented him from timely
pursuing his appeal to this Court. Appellant\'s (App.) April 22, 2003,
Response (Resp.) at 2; App. Mar. 28, 2003, Resp., Exhibit (Exh.) A. He
thus requests that the Court \"invoke the doctrine of equitable tolling
and find that he has established good cause for failing to appeal the
Board\'s decision within 120 days.\" *Ibid*. The appellant supports his
assertions with a March 31, 2003, medical opinion from his physician.
That opinion recited as follows:

> I have \[known\] John for many years, approximately 35 plus. It is my
> diagnosis that he has Alzheimer\'s and if he does not have that he has
> dementia. He should be considered for help, either by medical
> attention and or monetary help to maintain his home, his grocery
> bills, physician and etc.

App. Apr. 22, 2003, Resp. Exh. A at 1. In a separate notation dated
April 8, 2003, the physician responded \"\[y\]es\" when asked to
\"clarify whether the condition \[from which the appellant\] suffers
renders him unable to be held to times and dates\". *Id*. at 2.

On September 20, 2004, following the Federal Circuit\'s remand in this
case, the Court issued an order noting that, in light of the standards
set forth by the Federal Circuit in *Barrett*, *supra*, to govern claims
of equitable tolling based on mental incapacity and its remand of this
matter to this Court, this Court was in need of supplemental briefing
(and any additional relevant evidence) from the parties in support of
their positions. *Claiborne v. Principi*, No. 02-2455, 2004 WL 2179170,
at \*2 (Vet. App. Sept. 20, 2004). Accordingly, in that order this Court
directed the appellant, not later than 30 days thereafter, to file a
response showing that (1) a medically diagnosed mental illness rendered
him (a) \"incapable of \'rational thought or deliberate decision
making\'\" or (b) \"\'incapable of handling \[his\] own affairs\'\" or
(c) \"\'unable to function \[in\] society\'\" and (2) his \"failure to
file \[a timely NOA\] was the \'direct result of \[his\] mental
illness\'.\" *Ibid.* (quoting *Barrett*, 363 F.3d at 1321 (citations
omitted)). The Court further directed the Secretary to file a response
not later than 30 days after the date on which the appellant filed his
response to the September 20, 2004, order.

In his October 18, 2004, response, the appellant maintains that he
suffers from Alzheimer\'s disease or dementia and that the doctrine of
equitable tolling should be applied to allow his appeal to proceed. App.
Oct. 18, 2004, Resp. at 2-3. He attaches (1) a portion of an article
written by two physicians, entitled \"Early Diagnosis of Dementia\", and
(2) medical opinions from two physicians who indicate on identical forms
that the appellant \"suffers from a form of dementia\" and is forgetful.
App. Oct. 18, 2004, Resp., Attachments (Attachs.). The two medical
opinions are one-page statements that consist of three handwritten
checkmarks, each entered next to the typed word \"Agree\" after the
following three typed statements: (1) \"John\'s dementia has severely
impaired his ability for rational thought/deliberate decision making
since at least July 24, 2002\"; (2) \"John\'s dementia has severely
impaired his ability to handle his own affairs or function in society
since at least July 24, 2002\"; and (3) \"John\'s dementia has rendered
him unable to be held to times and dates since at least July 24, 2002,
and his failure to file documents in a timely manner during this time
frame is a direct result of his dementia.\" *Ibid*.

In his November 17, 2004, response, the Secretary argues that the appeal
should be dismissed because the medical evidence submitted by the
appellant is insufficient to establish that the appellant was mentally
incapacitated during the judicial-appeal period so as to satisfy the
standards prescribed by the Federal Circuit in *Barrett* as necessary to
justify equitable tolling. Secretary\'s (Sec\'y) Resp. at 4-5. He argues
that the two most recent physicians\' opinions do not reflect signs or
symptoms of dementia other than forgetfulness and that the appellant has
not submitted medical opinions with supporting clinical data that show
that he has severe impairment from dementia. *Id.* at 5.

On January 10, 2005, following a Court order granting the appellant\'s
unopposed motion for leave to file a supplemental response, the
appellant filed his supplemental response to which he attaches two
pieces of additional medical evidence. A medical opinion dated
December 13, 2004, from Dr. Fabian Lugo, contained the following
information:

> Mr. John Claiborne was seen in neurological evaluation for complaints
> of memory difficulties. He is a 78-year-old right-handed male . . .
> who for the past several years has been complaining of memory
> difficulties. He states that his memory got much worse after he was
> involved in an accident back in 1970 where he was run over by a
> vehicle sustaining a brain concussion. Lately, the patient has been
> experiencing forgetfulness and missing important dates and
> appointments. He forgets names and faces that should be familiar to
> him. He denies any personality changes and has not experienced any
> delusions or hallucinations.

App. Jan. 10, 2005, Resp., Attach. 1 at 1. The medical opinion noted
that the appellant \"has been disabled since 1983\". *Ibid.* Based on a
mental examination, the opinion provided the following information:

> The patient was alert, cooperative\[,\] and oriented to the person,
> year, date, day\[,\] and month. Spontaneous speech was fluent and well
> articulated with no aphasia. Normal verbal/written comprehension.
> Normal naming and repetition. Affect was appropriate. Able to register
> three unrelated items and recalled 1/3 after five minutes. Named the
> current United States of America \[P\]resident. Able to do simple
> calculations. No finger agnosia. Proverb interpretation was abstract.
> Able to copy an intersecting pentagon figure. Fund of knowledge was
> adequate. Able to spell the word \"world\" backward with three errors.

*Id.* at 1-2. The impression given was that the appellant\'s \"symptoms
are compatible with an early dementia, probably degenerative type\", and
that his \"main problems seem to be with difficulty with his short-term
memory which is going to make him prone to forgetting specific dates and
appointments.\" *Id*. at 2. The appellant also attaches to his
supplemental response an article entitled \"Understanding the Dementia
Experience\". App. Jan. 10, 2005, Resp., Attach. 2.

**II. Analysis**

Regarding the issue whether the appellant is entitled to equitable
tolling of the 120-day judicial-appeal period for filing his NOA, 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). This Court has the authority to
decide jurisdictional facts. *See Shepard v. West*, 12 Vet.App. 107, 108
(1998) (per curiam order) (finding as fact directly affecting its
jurisdiction that time for filing NOA had elapsed before NOA was filed);
*Stokes v. Derwinski*, 1 Vet.App. 201, 203‑04 (1991) (explaining that
appeal presented example where facts that had not been before BVA were
crucial to proper determination of whether this Court has jurisdiction
over veteran\'s appeal and finding that particular document constituted
Notice of Disagreement). Pursuant to 38 U.S.C. § 7266, 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 it generally must
file a timely NOA with the Court. *See Bailey (Harold) v. West*,
160 F.3d 1360, 1363 (Fed. Cir. 1998) (en banc). In order to fulfill its
responsibility under 38 U.S.C. § 5104(a) to provide an appellant with
notice of a BVA decision, the Board must \"promptly mail a copy of its
written decision to the \[appellant\] at the last known address of the
\[appellant\].\" 38 U.S.C. § 7104(e). To have been timely filed under
38 U.S.C. § 7266 and Rule 4 of this Court\'s Rules of Practice and
Procedure, an NOA must generally have been received (or, in certain
circumstances, be deemed received) by the Court within 120 days after
notice of the underlying final BVA decision was mailed. *See Cintron
v. West*, 13 Vet.App. 251, 254 (1999); *Leonard v. West*, 12 Vet.App.
554, 555 (1999) (per curiam order); *see also* 38 U.S.C. § 7266(c)(2)
(as redesignated by section 507(b)(3) of the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976,
977). In limited circumstances, the statutory period prescribed for the
filing of an NOA may be equitably tolled. *See, e.g., Irwin v. Dep\'t of
Veterans Affairs*, 498 U.S. 89, 96 (1990); *Barrett*, 363 F.3d at 1321
(holding that equitable tolling of 120-day NOA‑filing period may be
justified if veteran shows that failure to file timely was direct result
of mental illness); *Bailey*, 160 F.3d at 1364 (holding that equitable
tolling of 120-day filing period may be warranted where VA misled or
induced claimant into missing filing deadline); *see also* *Arbas v.
Nicholson*, 403 F.3d 1379, 1381 (Fed. Cir. 2005) (holding that *Barrett*
mental‑illness criteria were equally applicable to physical illness for
tolling 120-day NOA-filing period).

The Federal Circuit in *Barrett* held that \"mental illness can justify
equitable tolling of section 7266(a) under some circumstances.\"
*Barrett*, 363 F.3d at 1317. The court concluded that the following
generalized standards should govern claims of mental incapacity:

> \[T\]o 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.\" A medical diagnosis alone or
> vague assertions of mental problems will not suffice. And, if he is
> represented by counsel during the relevant period, the veteran must
> make an additional showing that the mental illness impaired the
> attorney-client relationship.

*Id.* at 1321 (citations omitted). In providing these standards to
govern when mental illness may justify equitable tolling of section
7266(a), the Federal Circuit squarely put the burden on the appellant to
make the requisite showing. *Barrett*, 363 F.3d at 1321 (concluding that
\"***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\'\" (citations omitted)
(emphasis added)); *see also* *McNutt* and *Bethea*, both *supra*.

In the instant case, the Court holds that the appellant has failed to
meet his burden of demonstrating that his failure to file a timely 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.\'\" *Barrett*, *supra* (quoting *Meléndez‑Arroyo v.
Cutler-Hammer de P.R., Co.*, 273 F.3d 30, 37 (1st Cir. 2001), and
*Smith-Haynie v. District of Columbia*, 155 F.3d 575, 580 (D.C. Cir.
1998), respectively). Although the appellant has submitted a March 2003
medical opinion that noted that he has either Alzheimer\'s disease or
dementia, a December 2004 medical opinion that stated that he has
symptoms that \"are compatible with an early dementia\", and two October
2004 medical opinions that stated that he suffers from \"a form of
dementia\", a diagnosis of dementia alone is not sufficient. The
appellant is required to demonstrate that his failure to file his NOA
during the 120‑day judicial-appeal period \"was the direct result\" of
his dementia. *Barrett*, *supra*. The March 2003 medical opinion did not
identify any symptoms regarding the appellant\'s condition, and the only
symptoms noted in the October and December 2004 medical opinions were,
respectively, that the appellant \"forgets a lot\", is \"forgetful\",
and \"has difficulty with his short-term memory which is going to make
him prone to forgetting specific dates and appointments.\"

Upon review of the submissions of the appellant, the Court finds that he
has failed to provide evidence that the symptoms of his dementia have
manifested in such a manner and to such an extent that his failure to
file his NOA in a timely fashion was \"a direct result\" of his medical
condition. The evidence that relates to his symptoms during the relevant
judicial-appeal period (i.e., July 25 through November 22, 2002) are the
two October 2004 medical opinions that showed that he is \"forgetful\"
and \"forgets a lot\". App. Oct. 18, 2004, Resp., Attachs. The two
physicians who provided the October 2004 opinions agreed that \"since
July 24, 2002\", the date of the Board decision, the appellant's
dementia (1) \"has severely impaired his ability for rational
thought/deliberate decision making\"; (2) \"has severely impaired his
ability to handle his own affairs or function in society\"; and (3)
\"has rendered him unable to be held to times and dates.\" *Ibid*. These
two physicians\' opinions also stated that the appellant\'s \"failure to
file documents in a timely manner during this time frame is a direct
result of his dementia.\" *Ibid*. These two physicians\' opinions,
however, failed to provide any support for these conclusory statements.
No medical history was provided, and the only explanation given for the
above statements was that the appellant \"forgets a lot\" and is
\"forgetful\", *ibid.*, but no facts or data are provided to show how
the physicians arrived at the conclusion that the appellant is
forgetful. The opinions did not state whether the physicians had
examined the appellant, did not describe the extent of any examination,
and did not provide any supporting clinical data to show that he has
severe impairment from dementia. In addition, the opinions failed to set
forth any relevant factual detail or any data with respect to the
physicians\' knowledge about the appellant\'s condition during a time
period that was two years earlier than the date of the opinions.

The Court therefore concludes that the two October 2004 physicians\'
opinions are of little, if any, evidentiary value because they did not
state that the physicians had examined the appellant and did not
indicate a basis of fact or data upon which the opinions were rendered.
*See* *Guerrieri v. Brown*, 4 Vet.App. 467, 470-71 (1993) (stating that
\"probative value of medical\[-\]opinion evidence is based on the
medical expert\'s personal examination of the patient, the physician\'s
knowledge and skill in analyzing the data, and the medical conclusion
that the physician reaches\"); *cf. Mariano v. Principi*, 17 Vet.App.
305, 312 (2003) (holding that VA medical examiner\'s conclusions were of
\"questionable probative value\" because examiner failed to consider
certain information). Similarly, the March 2003 medical opinion did not
include any facts or data upon which the diagnosis of Alzheimer\'s
disease or dementia was rendered. Even if the language in the three
physicians\' opinions (March 2003 and October 2004) would be sufficient
despite their being conclusory, the Court further holds that the words
used in those medical opinions did not meet the high standard imposed by
the Federal Circuit in *Barrett*, *supra*, as recently reiterated in
*Arbas*, *supra*. In the instant case, the physicians opined that the
appellant\'s dementia \"has ***severely impaired*** his ability for
rational thought/deliberate decision making\" and \"has ***severely
impaired*** his ability to handle his own affairs or function in
society\". App. Oct. 18, 2004, Resp., Attachs. (emphasis added). In
*Barrett*, the Federal Circuit, however, held that a claimant 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
(citations omitted) (emphasis added).

Finally, although the December 2004 physician\'s opinion provided data
and factual details, it did not address specifically the appellant\'s
condition during the relevant time period, but reported only generally
on his complaints of memory difficulties \"for the past several years\".
Notably, the mental examination conducted in December 2004, albeit dated
more than two years ***after*** the relevant time period, showed that
the appellant was \"alert, cooperative\[,\] and oriented to the person,
year, date, day\[,\] and month\"; that the appellant\'s affect \"was
appropriate\"; that he was able to name the current President of the
United States of America; and that his \"\[f\]und of knowledge was
adequate\". App. Jan. 10, 2005, Resp., Attach. 1 at 1-2.

On the basis of the foregoing analysis and upon consideration of the
parties\' pleadings, the Court, after a review of all evidence of
record, holds that the appellant has failed to carry his burden of
showing that during the 120-day judicial-appeal period his mental
condition rendered him incapable of pursuing his claim on his own or
that he was incapable of handling his own affairs or was unable to
function in society. *See* *Smith-Haynie*, 155 F.3d at 579-80
(describing equitable tolling based on mental incapacity as \"hurdle\"
that is \"high\" and concluding that appellant\'s affidavit did not
\"yield a reasonable inference that she was incapable of handling her
own affairs and functioning in society\" where affidavit stated in
conclusory manner that she did not understand administrative procedure
and failed to aver that meaning of limitations period was unclear to
her, failed to state that she was unable to engage in rational thought
and deliberate decisionmaking sufficient to pursue her claim alone or
through counsel, and failed to provide information to support inference
that she was in fact prevented from managing her affairs); *Nunnally v.
MacCausland*, 996 F.2d 1, 6-7 (1st Cir. 1993) (describing
equitable-tolling standard as \"rigorous\" and concluding that the
following evidence raised genuine factual issue whether mental condition
could have disordered appellant\'s ability to reason and function in
society to degree that disorder amounts to reason why she was unable to
pursue her claim on her own during relevant limitations period: Evidence
showing that appellant had probable diagnosis of paranoid schizophrenia
and describing appellant as having \"discursive \[thought pattern\], at
times illogical, circumlocutional and highly evasive\", suffering from
auditory hallucinations, and having \"delusional, evasive and indecisive
behavior\", and that appellant had a condition that was described as
\"crippling and exceedingly disorienting\" and causing \"massive
disorganization\"); *cf*. *Melendez-Arroyo*, 273 F.3d at 37-38
(concluding that appellant raised factual issue about her mental
capacity for purposes of tolling applicable limitations period where
evidence showed that \"she was so impaired that she had to live with her
sister and that for some of the time she was unable to manage even such
basic functions as getting dressed and brushing her teeth\" and other
evidence showed that during an interview she had behaved in a \"logical,
coherent relevant manner\").

We note that the Federal Circuit in *Barrett* and *Arbas*, both *supra*,
made no reference to the \"due diligence\" factor that the U.S. Supreme
Court had recognized in *Irwin*, 498 U.S. at 96 (noting that, in
determining whether equitable tolling is to be applied in particular
case, Court is \"less forgiving in receiving late filings where the
claimant failed to exercise due diligence in preserving his legal
rights\"). That lack of reference would appear to be because where the
evidence submitted by an appellant shows that the failure to file a
timely NOA was as a \"direct result\" of a mental or physical 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\'\", it necessarily shows that the
appellant was incapable of a diligent response during the statutory
judicial-appeal period. *Barrett*, *supra* (citations omitted). In any
event, the appellant\'s diligence was not addressed in those opinions,
and because the appellant in this case has failed to make a threshold
showing that his NOA was untimely as a direct result of his medical
condition, we need not decide in this case precisely when an
appellant\'s failure to exercise due diligence would bar a claim for
equitable tolling.

**III. Conclusion**

The Court grants the appellant\'s motion for a panel decision and
withdraws the Court\'s March 8, 2005, single-judge order. The Court
holds that the appellant has not established that his mental illness
justifies equitable tolling of the 120-day judicial appeal-period in 38
U.S.C. § 7266(a). Therefore, the Court dismisses this appeal for lack of
jurisdiction.

APPEAL DISMISSED.