**United States Court of Appeals for the Federal Circuit**

03-7203

WILLIAM BRANDENBURG, JR.,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

[Jeany C. Mark]{.underline}, Lieberman & Mark, of Washington, DC, argued
for claimant-appellant.

[John N. Kane, Jr.]{.underline}, Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of Washington, DC,
argued for respondent-appellee. On the brief were [Peter D.
Keisler]{.underline}, Assistant Attorney General; [David M.
Cohen]{.underline}, Director; [Todd M. Hughes]{.underline}, Assistant
Director; and [Brian S. Smith]{.underline}, Attorney. Of counsel on the
brief were [Michael J. Timinski]{.underline}, Deputy Assistant General
Counsel, and [Y. Ken Lee]{.underline}, Attorney, Department of Veterans
Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge John J. Farley, III

### United States Court of Appeals for the Federal Circuit

03-7203

WILLIAM BRANDENBURG, JR.,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> DECIDED: June 15, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MAYER, [Chief Judge]{.underline}, RADER and PROST, [Circuit
Judges]{.underline}.

MAYER, [Chief Judge]{.underline}.

William Brandenburg, Jr. appeals the order of the United States Court of
Appeals for Veterans Claims dismissing as untimely his appeal from the
Board of Veterans' Appeals, which denied both his claim for service
connection for various disabilities and his motion for reconsideration.
[Brandenburg v. Principi]{.underline}, No. 03-0016 (Vet. App. May 29,
2003). Because a letter Brandenburg sent to the board may have sufficed
as a timely notice of appeal tolling the applicable statutory filing
period, we reverse and remand.

# Background

##  Brandenburg served in the United States Army from June 1938 to June 1941, from June 1941 to January 1946, and from April 1951 to December 1953. On February 10, 1995, he filed a claim with the Department of Veterans Affairs ("VA") seeking service connection for various ailments allegedly stemming from mustard gas exposure. On July 17, 1995, the VA Regional Office denied his claim, and the board affirmed the denial on July 30, 1997. In April 1998, Brandenburg submitted additional evidence to support his claim, but on May 19, 1998, the Regional Office again denied it. On appeal, the board concluded on July 20, 2001, that Brandenburg had submitted new and material evidence that warranted reconsideration, but that the new evidence was insufficient to support his claim for service connection. Brandenburg then timely filed a request that the board reconsider its decision, which it denied on May 22, 2002. 

On September 10, 2002, 112 days after his request for reconsideration
was denied, Brandenburg asserts he sent a letter to the board indicating
his intent to appeal. On October 3, 2002, the Regional Office notified
Brandenburg that he should file his notice of appeal with the Veterans'
Court, and he subsequently complied, filing on January 2, 2003. On May
29, 2003, the court dismissed the appeal as untimely, stating that no
notice of appeal was filed with the court within 120 days of the board's
decision as required by 38 U.S.C. § 7266(a), and that the principle of
equitable tolling set out in [Santana-Venegas v. Principi]{.underline},
314 F.3d 1293 (Fed. Cir. 2002), did not apply in instances where a
notice of appeal is timely misfiled with the board instead of the
Regional Office.

# Discussion

Though we have exclusive jurisdiction to review decisions of the
Veterans' Court, that jurisdiction is limited. 38 U.S.C. § 7292 (2000);
[Santana-Venegas]{.underline}, 314 F.3d at 1296. We are authorized "to
address legal issues," but "ordinarily we may not address the
application of law to the facts of a particular case." [Bailey v.
Principi]{.underline}, 351 F.3d 1381, 1384 (Fed. Cir. 2003) (citing 38
U.S.C. § 7292(d)(2)(B)). Questions surrounding the applicability of
equitable tolling principles frequently involve the application of law
to the facts of the case. "However, when the material facts \[of a
case\] are not in dispute and the adoption of a particular legal
standard would dictate the outcome of the equitable tolling claim,
\[we\] treat\[\] the question of the availability of equitable tolling
as a matter of law that we are authorized by statute to address."
[Bailey]{.underline}, 351 F.3d at 1384 (citing [Jaquay v.
Principi]{.underline}, 304 F.3d 1276, 1289 (Fed. Cir. 2002) (en banc);
[Santana-Venegas]{.underline}, 314 F.3d at 1298).

Here, there are no material facts in dispute. The Veterans' Court stated
that "\[r\]egardless of whether the appellant's September 2002 letter to
the Board meets the requirements of a notice of appeal, it does not toll
the appeal period in accordance with [Santana-Venegas]{.underline} . . .
because it was misfiled with the Board and not the \[Regional Office\]."
Consequently, the only issue before us is the propriety of adopting a
particular legal standard---namely, whether equitable tolling may apply
when an appellant timely misfiles a notice of appeal to the Veterans'
Court with the Board of Veterans' Appeals. We hold that it may.

In other factual settings, equitable tolling may suspend the filing
deadline of 38 U.S.C. § 7266. In [Santana-Venegas]{.underline}, the
120-day deadline was tolled when instead of timely filing a notice of
appeal with the Veterans' Court, the appellant timely misfiled with the
Regional Office at which the claim originated. 314 F.3d at 1298. In
[Jaquay]{.underline}, we applied equitable tolling to an instance where
a veteran timely misfiled a motion for reconsideration with the Regional
Office instead of with the board. In [Bailey]{.underline}, we held that
the filing deadline may be equitably tolled where the veteran timely
misfiles a notice of appeal with the Regional Office, even when an
incorrect form is used as notice. 351 F.3d at 1385.

Admittedly, these scenarios all involve timely misfilings with the
Regional Office rather than with the Board of Veterans' Appeals, but
whether equitable tolling applied in each case did not hinge on that
particularity. Instead, the focus was whether the veteran "exercised due
diligence in preserving his legal rights," [Jaquay]{.underline}, 304
F.3d at 1287 (quoting [Irwin v. Dep't of Veterans Affairs]{.underline},
498 U.S. 89, 96 (1990)), and whether "the veteran's intention is clear
and the \[VA\] is put on notice of his intention to seek further review
of his claim." [Bailey]{.underline}, 351 F.3d at 1385. If the veteran
meets both criteria, "an error in the form or in the office to which
\[notice\] is sent, or both, is not sufficient to render the filing
ineligible for consideration under the equitable tolling doctrine."
[Id.]{.underline} For these purposes, there is no meaningful difference
between the Regional Office and the board.

[Conclusion]{.underline}

Accordingly, we reverse the dismissal order and remand the case to the
United States Court of Appeals for Veterans Claims for further
proceedings.

# REVERSED AND REMANDED