UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 14-1017

E M I L I O T. P A L O M E R , A P P E L L A N T ,

V

.

R O B E R T A. M C D ON

A L D , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.

Be fore KASOL D, Chief Judge, and SCHOEL EN and G REENBE RG, Judges

.

O R D E R

Mr. Em ilio T. Palomer see ks to appea l a J uly 10, 2013, decision of the Board of Veter ans' Appea ls (B oard)

. Howeve r, he mailed his motion for rec onsideration of the Boa rd decision 133 day s afte r the Boa

rd decision was mailed, and then filed his Notice of Appea l ( NOA) 102 day s afte r the Boa rd Chairman de nied re consideration. The S ecr etar y moved t o dismiss the appeal because Mr

. Palomer did not file either an NOA or a reque st for rec onsideration within 120 day s of the Boa rd decision, such that the NOA he ultimately filed was untimely

. See Rosler v. Derwinski
, 1 Vet.App. 1 241, 249 (1991) (holding that if, following a final Bo ard decision, the claimant files a motion for

rec onsideration with the Boa rd during the 120-day appea l period, the finality of the Boa rd decision is abated) ; see also 38 U.S.C. § 7266 (providing a 120-day period in which to file a

n NOA)

.

Mr. Palomer prese nts thr e e a r g uments why the Court should equitably toll the 120-day period in which a claimant may file a motion for rec onsideration in order to abate the finality of the Boa rd decision for purposes of timely filing an NOA: (1) The time it takes for him to send and rec eive mail in the Phili ppines constitutes an extraordinary circ umstance; (2) his phy sical condition rende red him incapa bl e of handling his aff

airs and prec luded a timely filing; and (3) the Secre tary provided a

Mr. P alom er's m otio n for reco nsi der ation w as po stm arked by the P hilippine P ostal Corp or ation on Novem ber 1
20
, 20 13
, one hu

ndred and thirty -th

ree day s afte r t he B o a r d d e cision w as m ailed. T he Bo ard received his m otio n o n Decem ber 5, 20 13 , o ne hu

ndred and for ty -eig ht day s after notice o f th e Boar d's decisio n. B ecause there is no d ispute that Mr. P alom er m ailed his m otio n for reco nsi der ation m or e than 12 0 day s after the Bo ard decisio n w as m ailed, w e do not n eed to decid e w

heth er VA ' s " po stm ark ru le" applies to po stm arks outside th e Un ited States. See Linville v. W est , 16 5 F.3d 13 82
, 13 86 (Fed

. Cir. 19 99 ) (ap ply ing VA ' s po stm ark rule to fin d that a m otio n for reco nsi der ation po stm arked by the U.S. P ostal S e r vi c e w i t hin the 12 0-day app eal per iod abate d the fin ality of the Bo ard ' s decisio n); comp are 38 C .F.R. § 20.3 05 (a) (201 4) ("W hen th ese R ules req uire t

hat any w ritten do cum ent be fil ed w ithin a specified perio d of tim e, a respo nse p ostm arked pr ior to expir ation of the app licable tim e lim it w ill be accep ted as hav ing been tim ely filed. In the event that the po stm ark is not of reco rd
, the po stm ark date w ill be pr esum ed to be fiv e day s pr ior to the date of receip t of the do cum ent by the Depa rtm ent of Veterans A ff airs." ), with 38 U.S.C. § 72 66 (c) (2 ) (p ro viding that an NOA shall be deem ed received on th e "d ate of the United St ates Postal Service po stm ark s tam ped on the cover in w

hich th e notice is po sted, if the notice is pr op erly add ressed to the Court and m ailed" ); see also Map u v. Nicholso n , 39 7 F.3d 13 75 (Fed . Cir. 20 05 ) ( m ail sent by FedE x w as not a b asis f

oreq uitably

tolling th e tim e to file an NOA ).confusing notice of appellate rig ht s l et t er (VA For m 4597, "N otice of Appellate Rights" ). Mr. Palomer also argues that he timely filed an appea l of the Boa rd Chairman' s denial of rec onsideration and the Court has jurisdiction to decide that appea l. His argument s p re s en t an issue of first 2 impression. A panel decision is war rante d. See Frankel v. Derwinski
, 1 Vet.App. 23, 25-26 (1990); U.S. V E T

. A P P

. I

N TE R N A L O P E R

A TI N G P R O C E D UR E (I OP) I (b)( 2), (4)

.

I. BACKG ROUND AN D ARG UMENTS

On J uly 10, 2013, the Boa

rd issued a decision denying Mr. Palomer a one-time pay ment from the Filipino Veter ans Equity Compensation Fun d (F VE C F)

. Mr. Palomer mailed his reque st for

rec onsideration of the Boa rd decision on November 20, 2013, one hundred and thirty -three day s afte r the Bo ar d d ecision was issued. On Dec ember 26, 2013, the Boa rd denied his motion for

rec onsideration, and 82 day s later, on Marc h 18, 2014, Mr. Palomer mailed his N OA to the Court. Mr. Palomer' s NOA wa s rec eived by the Court 20 day s later, on Apr il 7, 2014.

As noted above, the Secre tary moved t o d i s m i s s the appea l beca use it was untimely filed. He also argued that the Court lacks jurisdiction to revie w the Boa rd Chairman' s denial of

rec onsideration. Mr. Palomer arg ues that equitable tolling should apply to his case

. The hear t of Mr. P al o m er 's argument is that Rosler predates Hende rson ex rel. Hende rson v. Shinseki
, 131 S. C t

. 1197, 1206 (2011), which found that the 120-day appea l perio d fo r fi ling an NOA is not jurisdictional. M r. P al o m er contends that failing to file t he mot ion for reconsider ation within the 120-day period afte r the Boa rd issued its decision does not jurisdictionally bar his appea l, and thus, equitable tolling applies t o t he 120-day period in which a claimant may file a motion for

rec onsideration in orde r t o abate the finality of the B oard de cision for purpose s of timely filing a n NOA.

I n support of his a rg ument that his situation merits equitable tolling, Mr. Palomer relies on Checo v. Shinseki
, 748 F.3d 1373, 1378 (F ed. Cir. 2014), and arg ues that just as the Checo homeless

v et er an's living situation war rante d equitable tolling, Mr. Palomer' s living situation war rants equitable tolling. Specifica lly
, he notes that he lives in the Phili ppines, wher e it takes mail from the

co n tinental United States considera bly longe r to rea ch him than it does for veter ans living i n t h e continental United States.

Mr. Palomer also argues that his deter iorating ey es and hear ing, as well as old ag e, preve nted him from timely filing an appea l. I n support of this argument, he notes that he must rely on a third party to r elay the contents of the Boa rd communications to hi m, a nd he was either misinformed or misunderstood the time require ments for filing his NOA

. He further contends that he exercised

rea sonable dilig ence in submit ting his re quest for r econside ration.

On Decem

ber 30
, 20 14
, counsel for Mr. P alom er entered the c ase, and on Ja nu ary 23
, 20 15
, he subm itted 2

a respo nse to the m otio n to dism iss, and he subm itted a m otio n to expedite pr ocee dings

. On Febr uary 12
, 20 15
, counsel filed a m otio n to file a substitu te respo nse and attached such substitu te respo nse. T he m otio n is granted and the text of the Court' s or der reflects the argum ents in the substitu ted respo nse. T he m otio n to expedite pr ocee dings w ill be denied

as m oo t.

2Additionally
, Mr. Palomer contends that the Notice of Appellate Rights issued by the Boa rd is confusing

. He notes t h at t he letter first states that there is no time limit for filing a motion for

rec onsideration, but then later states that there is a 120-day deadline. Given his desire to reque st

rec onsideration and the format of the notice, he asser ts that he was unawa

re of the 120-day deadline.

Mr. Palomer further arg

ues that even if the Court doe s not equitably toll the time to file his motion for rec onsideration, he ti m el y ap peale d the Chairman of the Boa rd' s denial of

rec onsideration. He contends that the Court may revie w denials of rec onsideration when the motion is based on new evidence or chang ed circumstance s. He further contends t hat t he rece nt d ecision in Tagupa v. McD ona ld
, 27 Vet.App. 95, 101, 103-04 (2014) (holding a reque st to the National Personnel Records Center (NPRC) to verify a claimant' s service does not satisfy the Secre tary ' s duty under 38 C.F.R. § 3.203 (2014), and holding that the Boa rd err ed by not addre ssing whether the appellant serve d in an unrec og nized g uerr illa service ) constitutes a chang ed circ umstance. Pursuant to Tagupa , Mr. P alomer arg ues t hat t he B oard e rre d beca use (1) it relied solely

on the re sponse of t h e NP R C in assessing his veter an status, and did not seek verific ation of service from t h e appropr iate service depar

tment, and (2) the NPRC provided no information as to whether he serve d

as a me mber of a

n unrec og nized gue rilla g roup.

II. DISCUSS ION

A. Abate ment of F inality in the Boa

rd De cision

Pursuant to 38 U.S.C. § 7266(a)
, an appellant has 120 day s in which t o appeal an adver se Boa rd decision to the Court. I n Rosler
, the Court held that when a claimant files a motion for

rec onsideration with the Boa rd during the 120-day judicial appea l pe riod, the finality of the B oard decision is abate d for purposes of timely filing an NOA. 1 Vet.App. at 242. The Court further held that "[i]t is implicit in the tolling principle that the motion for rec onsideration must be made within the time period for filing a judi ci al appeal from the decision which is the subject of the

rec onsideration motion. Otherw ise the appea l period would alre ady have elapse d and thus could not be tolled." Id. at 245.

Howeve r, in Jaquay v. Principi , 304 F.3d 1276, 1286-87 (F ed. Cir. 2002), the U.S. Court of Appea ls for the Fe dera l Circuit (F eder al Circuit) applied the principles of equitable tolling descr ibed in Irwin v. Dep't of Veterans Affairs
, 498 U.S. 89, 96 (1 9 9 0 ) (providing that equitable tolling is g eneral l y av ailable "w here the claimant has actively pursued his judicial reme dies by filing a defe ctive pleading

. . . or wher e [he] has been induced or tricked by his adver sary ' s misconduct into allowing the filing deadline to pass" ), to find that a timely misfiled motion for rec onsideration tolled the Rosler

limit ations period. The Fe dera l Circuit stated:

I n the contex t of t he non-adversa rial, paternalistic, uniquely pro-c laimant veter ans' compensation sy stem, and consistent with our decision in Bailey [ v. W est , 160 F.3d 1360 (Fed. Cir. 1998) (en banc) ], the availability of equitable tolling pursuant to Irwin should be interpre ted liberally with respe ct to filings during the non-adve rsar ial

s t age o f t h e veter ans' benef its proce ss. J ust as the limit ations period of 38 U.S.C.

3§ 7266 can be stopped and rese t by the timely filing of a proper ly addre ssed motion

for rec onsideration, see Rosler
, 1 Vet.App. at 249, nothin g i n t he statute or regulations at issue sug g ests that equitable tolling should not be avail ab l e u n d er appropr iate cir cumstance s.

304 F.3d at 1286.

Although f

or a short period, equitable tolling of the time to file an NOA was not pe rmitted beca use the time to file was deeme d jurisdictional, that understanding of the law has been reje cted, and the time to appea l may be equitably tolled. See Hende rson , supra ; Bove v. Shinseki
, 25 Vet.App. 136, 140 (2011) (per curiam order ) (re instating equitable tolling "w ithin the para meters established by

. . . the prec edential decisions of [t he Fe dera l Circuit] and this Court prio r t o " t h e He n derson decision, which overturne d decisions holding that the 120-day filing period could not be equitably tolled). Fur

thermore
, althoug h Jaquay did not addre ss the situation that is pr esente d here
, we find

no rea son to limit the availability of equitable tolling of the Rosler limit ations period to timely misfiled reque sts for rec onsideration. See Sneed v. Shinseki
, 737 F.3d 719, 726 (F ed. Cir. 2013) (noting that equitable tolling is not "' limit ed to a small a nd closed set of fac tual patterns' " (quoting Mapu v. Nicholson
, 397 F.3d 1375, 1380 (F ed. Cir. 2005)))

. I ndeed, the Fe deral Circuit has repe atedly "r ejec ted t h e approach of looking to whether a particula r case falls within the fac ts specific ally identified in Irwin or one of [t he Fe dera l Circuit's] prior case s." Mapu , 397 F.3d at 1380;

see , e.g. , Sneed
, 737 F.3d at 728 (holding that attorney abandonme nt may justify equitable tolling); Barrett v. P r i n ci

p i , 3 6 3 F.3d 1316, 1320 (F ed. C ir. 2004) (holding t hat m ental il lness may justify eq u i table tolling). Succinctly stated, we hold that the finality of a Boa rd decision may b e ab at ed

even when a reque st for rec onsideration is filed bey ond the 120-day appea l p er i o d
, p rovided the circ umstances surr ounding suc h a filing war rant e quitable tolling.

Acc ording ly
, we turn to Mr . Palomer' s arg uments that equitable tolling should a pply to his

case

. B. Equitable Tolling

Whether a situation war

rants equitable tolling is a mat t er t o be decide d on a case -by -ca se basis. See S

n ee d
, 737 F.3d at 726. Fur thermore
, it is the appellant' s burden to demonstrate entitlement to equitab l e tolling and to produce any evidenc e supporting his claim for equitable tolling. See Chas t a i n v. W est , 13 Vet.App. 296, 300-01 (2000) (appe llant bear s burden of demonstrating that equitable toll ing is war rante d), aff'

d sub nom. Chastain v. Principi , 6 F. App'x 854 (F ed. C ir. 2001) (per curiam); see also McCreary v. N i ch olson
, 19 Vet.App. 324, 332 (2005) (" I t is the appellant' s obligation

. . . to produce any evidenc e supporting his cl ai m for equitable tolling."), adhered to on reconsideration by 20 Vet.App. 86 (2006). Ba sed on the arguments prese nted, we f

ind that Mr. Palomer fa ils to demonstrate that equitable tolling is warr anted. 3

We note that our dissentin g colleague cites Lord Ellesm ere's view that a gen eral law cannot m eet every 3 situ ation, po st at

__

_, as w ell as his ow

n op inion that equity exists to pr otect agains t narro w ly pr escribe d rules and narro w interpre tations of pr eced ential case law
, po st at

__ _. We agree w ith bo th Lord Ellesm ere and our dissentin g colleague,

41. Philippine Mail System

Mr. Palomer argues that beca use he lives in the Phili ppines and mail from the United States takes longer to arr ive at his home t han it does for veter ans l iving in the cont i n en t al Unit ed S tates, his living situation is an extraordinary circ umstance war ranting equitable tolling, just as the veter an' s homelessness in Checo was an extraordinary circ umstance. S ee C heco
, 748 F.3d at 1378-79. I n support of his argument, Mr. Palomer notes the 15-day delay betwee n when his reque st for

rec onsideration was postmarked as mailed in the Phili ppines to when it was marke d as rec eived by the Boa rd. He also notes the 13-day delay betwee n his J une 2 7 , 2 0 1 4
, p ro s e response to the Secre tary ' s motion to dismiss and the date it was rec eived by the Court. He there fore contends that 4 the time for filing his motion for rec onsideration should be tolled for at least 14 day s to acc ount for this delay

.

At the outset, we note that Mr. Palomer mailed his reque st for rec onsideration after the 120- day period in which to file his NOA had passed. Acc ording ly
, the time it took to be rec eived by the Boa rd is irrele vant to the 120-day equitable tolling analy sis. Acknowle dg ing, howeve r, that it takes longe r for mail to trave l betwee n the United States and the Phili ppines than it does for mail to trave l within the United States, Mr. Palomer nevert h el es s fails to demonstrate that this circ umstance

war rants equitable tolling of the 120-day period in which t o fi le an NOA or a reque st for

rec onsideration that would abate the fina lity of the B oard de cision.

I ndeed, we note that Mr. Palomer was able to file his NOA within 102 day s of the denial of h i s request for rec onsideration, and he was able to respond to the Secre tary ' s motion t o d i s m i s s within 38 day s from when the motion was m ai l ed

. W e als o note that Mr. Palomer does not state when he rec eived the Boa rd' s decision; instead, based on the pattern of outgoing mail, he speculates that he re ceive d the B oard' s decision on J uly 24, 2013, at t he earliest. Although the ineffic iencies in the delivery of mail betwee n the United States and the Phili ppines may be a circ umstance bey ond Mr. Palomer' s control, he fails to asser t, let alone demonstrate, that he had an inadequa te amount of time to consider his options and timely mail his reque st for rec onsideration. Succinctly stated, Mr. Palomer fails to demonstrate that the time for mail to be delivere d betwee n the United States and the Phili ppines rises to the level of an extraordinary circ umstance war ranting equitable tolling. See Sneed
, 737 F.3d at 725 (" ' [A] litigant seeking equitable tolling bear s the burden of establishing two elements: (1 ) t h at h e has been pursuing his rig hts diligently
, and (2) that some extraordinary circ umstance stood in his way .' " (quoting Pace v. DiGuglielmo
, 544 U.S. 408, 418 (2005)) ); Sandvik

but w e also agree w ith William Blackstone, w

ho is attributed in

th e William

Blackstone, Com

m entaries * 62 as noting that " the liber ty of considering all cases in an equitable light m ust not be indulg ed too far, lest thereby w e destro y all law
, and

. . . . m ake every j udge a legisla t o r, and introduce m ost inf inite confu sion

. . . . " ). We also note that our deter m ination that equitable tolling is not w arr anted in this c a se i s no t pr edica ted on a narro w ly pr escribe d rule or a
narro w interpre tation of pr eced ential caselaw
, but on our conclus ion t hat the facts in this case do not w arr ant equitable tolling.

T he Court observes that it is not clear from the reco rd w

heth er it took 13 day s for Mr. Palo m er's June 27 th 4

respo nse to arr ive in the United States. A lthoug h his respo nse w as received at the Court on July 10
, 20 14
, the respo nse

w as transmitted via facsim ile from the Veterans Consortium P ro Bo no P ro gram

. T he reco rd do es not indicate w hen Mr. P alom er's response w as rece ived by th e Veter ans Cons or tium P ro B ono P ro gram

.
5v. United States
, 177 F.3d 1269, 1271-72 (11th Cir. 1999) (per curiam) (re fusing to apply equitable

tolling wher e Sandvik's filing was late beca use his lawy er sent it by ordinary mail from Atlanta less than one we ek bef

ore it wa s due in Miami); see also Harper v. Ercole
, 648 F.3d 132, 137 ( 2d Cir. 2011) (stating that "' extraordinary ' ref ers not to the uniqueness of a party ' s circ umstances, but rathe r to the sever ity of the obstacle impeding compliance with a limit ations period" ); McCreary
, 19 Vet.App. at 329 (noting t h at at least eig ht Fe dera l courts of appea l g ener ally rec og nize

"' extraordinary circ umstances that are both bey ond [a claimant' s] control and unavoidable even with diligenc e' " ( quoting Sandvik, 177 F.3d a t 1271)).

2. Deteriorating Physical Condition Mr. Palomer also argues that his ag e, poor ey esig ht, and hear ing rende red him incapa ble of handling his own aff

airs and preve nted him from timely filing an appea l. Equitable tolling may be

war rante d if a claimant' s mental or phy sical illness rende rs him incapa ble of handling his own aff airs

or funct i o n i n g i n s o ciety

. See Barrett , 363 F.3d at 1321 (holding that equitable tolling may be

war rante d i f an u n t imely filing is "the direc t result of a mental illness that rende red [a claimant] incapa ble of

. . . handling [a claimant' s] own aff airs" (interna l quotations and citation omitted)); see also Arbas v. Nicholson , 403 F.3d 1379, 1381 ( Fe d. Cir. 2005) (extending the Barrett holding to all infirmities that preve nt a claimant from, inter alia, handling his own aff airs). However, a "me dical diag nosis alone or va g ue asse rtions of mental [ or phy sical] problems wil l not suffice " to support an application of equitable tolling. Barrett , 363 F.3d at 1321.

I n this case , the fac ts belie his argument, as Mr. Palomer was capa ble of filing his NOA and responding to the Secre tary ' s motion well within 120 day s of the denial of his motion for

rec onsideration and the filing of the Secre tary ' s motion to dismiss
, and h e does not asser t that his condition was worse following issuance of the Boa rd decision, and then improved such that he was able to timely file his other response s. Moreove r, other than vag ue asser tions of phy sical infirmity
, Mr. Palomer offe rs no evidenc e demonstrating that his phy sical condition r ender ed him incapable of handling his aff

airs. S ee B a r r et t , s upra

. I n sum, Mr. Palomer fails to demonstrate that his p h y s i ca l co ndition preve nted him from filing his reque st for rec onsideration within the 120-day period following issuance of the Boa rd decision, or that his condition otherwise war rants equitable t olling. See Sneed
, Chastain
, and McCreary
, all supra ; see also Bove , 25 Vet.App

. at 1 4 5 (phy sician' s letter descr ibing veter an' s difficulty making ever yd ay d ecisions and that his mental disorders cause him to over- think and procr astinate did not meet Barrett ' s test); Claiborne v. Nicholson
, 19 Vet.App. 181, 187 (2005) (phy sician' s letters explaining that t h e claimant had a "se vere ly impaired" ability to handle his own aff airs did not meet Barrett ' s "hig h standard" for equitable tolling)

.

Mr. Palomer further contends that as a result of his poor ey esig ht and failing health, he must rely on a third party to rela y the contents of the Boa

rd communications to him. Mr. Palomer alleg es that either the third party

misinformed him as to the contents of the l etter or he misunderstood the time period for filing his appea l. Neither argument, however, demonstrates a basis for equitably tolling the time to file. Mr. Palomer provides no information reg arding the third party who may have

rea d his Boa

rd decision, when he soug ht or rec eive d as s istance from the third party , or what questions Mr. Palomer may have a sked the third par

ty reg ardingthis matter, such that his relianc e

6on the third party prec luded a timely filing. See Sneed
, Chastain
, and McCreary
, all supra ; see also

Nelson v. Nicholson
, 19 Vet.App. 548, 553 (200 6 ) (r ef u s i ng to extend equitable tolling to case s involving attorney neg lect such as missing a filing deadline)
, aff' d
, 489 F.3d 1380 (F ed. Cir. 2007); Leonard v. W

est , 12 Vet.App. 554, 555 (1999) (per curiam order ) (re fusing to g rant equitable tolling wher e the service repr esentative took a long time to revie w the claim and the U.S. Post Offic e closed

ear ly on the last day

of the filing period).

3. Confusing N

OA Instructions Mr. Palomer contends that the Notice of Appellate Rights issued by the Boa rd is confusing beca use i t states at one point that there is no time limi t for filing a mot ion for reconsider ation, but then later states that there is a 120-day deadline. At the outset, it is noted that the Fe dera l Circuit has held that the Notice of Appellate Rights used by the Boa rd is adequate. Cummings v. W est , 136 F.3d 1468, 1474 (Fed

. C i r. 1 9 9 8 ) (finding adequate an appea ls notice letter wher e the letter did not explain that the claimant could prese rve jurisdiction of the Court by filing a motion for

rec onsideration withi n the 12 0 -day appea l period, and noting that 38 U.S.C. § 5104 require d only that the appe als notice provide a "g ener al out line of t he available procedure s for obtainingrevie w of a f inal Boa rd dec ision"), overruled on othe r grounds by Bailey , 160 F.3d at 1360.

I n this case, the N otice of Appellate Ri g hts provided the same information as the notice in Cummings
, supra , as well as a corr ect explanation of the eff ect of filing a motion for rec onsideration

on the deadline for filing an NOA to this Court. Although the notice states that there is no time limit for filing a reque st for rec onsideration, this statement immediately prec edes a para g raph that separ ately addre sses " How long do I have to start my ap peal to the Court?" Motion (Mot.) t o Dismiss, Ex hibit 1 at 8 (VA For m 4597, Notice of Appellate Rights) (bold in orig inal). This para g raph informs the claimant that he or she may file a reque st for rec o n s i d er at ion instead of an NOA and still have time to file an NO A, " [a] s long as [he] file[s] [his] motion( s) with the Board withi n 120 days of the date this decision was mailed to [him] ." Mot. to Dismiss, Ex hibit 1 at 8 (VA F o r m 4 5 97, Notice of Appellate Rights) (empha sis in orig inal). Additionally
, in a separ ate para g raph that addre sses " How do I fi le a m otion for rec onsid erat ion?" the claimant is reminded that he must file a motion for rec onsideration within 120 day s of the Boa rd' s decision if he or

she also wa

nts to pursue an appea l to the Court. Mot. to Dismiss, Ex hibit 1 at 9 (VA For m 4597, Notice of Appellate Rights) (" Remember, the Boa rd place s no time limit on filing a motion for rec onsideration, and y ou
can do this at any time. Howeve r, if y ou also plan to appea l this decision to the Court, y ou must file
y our motion within 120 day s from the date of this decision." ).

I n sum, the Court finds no basis here to apply equitable tolling beca use Mr. Palomer fails to demonstrate that the Notice of Appellate Rights is inadequate or confusing on this issue. See Sneed
, Chastain
, and McCreary
, all supra ; see also Cummings
, supra ; Smith v. W est , 1 3 Ve t

. Ap p

. 525 (2000) ( holding that the a ssertion that lang uag e in a B oard Chair man' s denial of motion for Boar d

rec onsideration was confusing and misleading was insufficient, by itself or taken toge ther with the notice of appellate rig hts, to trig g er the application of the doct ri n e o f equitable tolling); Leonard
, 12 Vet.App. at 555 (holding appellant' s contention that her alleg ed limit ed education and experience rende red her unable to understand the amount of time for filing an NOA was "a t best a g arde n varie ty claim of excusable neg lect" and ref us i n g t o apply equitable tolling) (interna l quotation marks

7omitted); Schreine r v. De r w inski
, 2 Vet.App. 72, 72 (1991) (per curiam) (holding that equitable

tolling does not extend to "' a gar den var iety claim of ex cusable neg lect' " (quoting Irwin , 498 U.S. at 96)).

4. Ove rall Ba sed on the fore g oing analy sis, we find that Mr. Palomer fails to demonstrate that the delay in sending and rec eiving mail in the Phili ppines, his deter iorating phy sical condition, and the Boa rd' s Notice of Appellate Rights, individually or toge ther, war rant equitably tolling the 120-day period to file a motion for rec onsideration in order to abate the finality of the Boa rd decision for purposes of timely filing an NOA

. See Sneed
, 737 F.3d at 726 (noting that "c ourts acting in equity have emphasized ' the need for flex ibilit y ' and 'for avoiding mecha nical rules,' and have p ro ce ed ed on a

' case -by -ca se basis' ") ; see also Mapu
, supra

.

C. Boar d Chairman' s Denial of Re consideration

Mr. Palomer arg

ues that even if the Court doe s not e quitably toll the time to file his appea l of the J ul y 2013 Boa

rd decision, he never

theless timely appea led the Boa rd Chairman' s denial of

re co n s i d eration. He concede s that the C ourt may not normally revie w denials of reconsideration
, howeve r, he relies on Patterson v. Brown , 5 Vet.App. 362 (1993) for the proposition that when the motion is based on new evidenc e or chang ed circ umstances, the Court has jurisdiction to revie w the Boa rd Chairman' s denial of rec onsideration. He contends that the Court's decision i n Tagupa , 27 Vet.App. at 101, prese nts the chang ed circ umstances in his case , and, based on Tagupa , he argues that the Boa

rd err ed beca

use it relied solely on the response of the NPRC and did not seek verific ation of ser

vice f rom the appr opriate se rvice depar tment.
Although Patterson held that the Court had jurisdiction over a Boa rd Chairman' s denial of

rec onsideration when the motion for rec onsideration was based on new evidenc e or chang ed circ umstances, in Maye r v. Brown , 37 F.3d 618, 620 (F ed. Cir. 1994), the Fe dera l Circuit noted that in Patterson , our Court had jurisdiction over the underly ing Boa rd decision based on a timely filed NOA. The Fe dera l Circuit furt h er stated, howeve r, that while 38 U.S.C. § 7261 "ma y allow the [Veterans Court] to revie w actions of the Chairm an [ o f t h e Boa rd] in case s wher e it alre ady has jurisdiction by virtue of a timely appea l from a final [B]oard decision, it does not independe ntly g rant jurisdiction over such actions." Maye r , supra ; see also Trice v. Brown , 9 Vet.App 245, 246 (1996) (per curiam order ) (re cog nizi ng that Maye r overr uled the Patterson decision reg arding jurisdiction over de nials of re considera tion by the B oard Chair

man).

Although Maye r discusses the Court's authority to revie w the Boa rd Chairman' s denial of

rec onsideration in terms of "jur isdiction" over Boa rd decisions, and althoug h the Supreme Court in Hende rson , supra , held that the 120-day appea l period is not jurisdictional, but rathe r an important proce dural rule, we find that Maye r continues to stand for the proposition that when an NOA is filed bey ond the 120-day appea l period and equitable tolling is not war rante d such that the Court declines to exercise its jurisdiction over an appea l from a Boa rd decision, t h e Court does not have independe nt jurisdiction over an appea l from a de nial for r econside ration by the Board Chairman. I n other words, althoug h the t i m e l i m i t for filing an NOA is not jurisdictional, the C ourt' s subject

8matter jurisdiction is l imited to reviewing final dec isions of the Boa rd. See 38 U.S.C. §§ 7252(a)
, 7266(a) ; Maye r , 37 F.3d at 619-20 (finding that a decision by the Boa rd Chairman is not a decision of the B oard, a

nd there fore , cannot indepe ndently g rant jurisdiction under 38 U .S.C. § 7252(a)). 5

Her e, Mr. Palomer untimely filed his N OA and equitable tolling is not war rante d such that

we decline to exercise jurisdiction over the appea l from the Boa rd decision. Acc ording ly
, we do not have jurisdiction over the appea l of the Boa rd Chairman' s denial of the motion for rec onsideration. See M ayer , supra

.

III. CONCLUSION

Ba sed on the information befor e the C o u rt , Mr. Palomer has not demonstrated that his situation warra

nts equitable tolling.

There fore , upon consideration of the fore g oing, it is

ORDERED that Mr. Palomer' s J anuar y 23, 2015, motion to expedite proce eding s is denied as moot. I t is further

ORDERED that M r. P al omer' s Fe bruar y 12, 2015, motion to file a substitut e response is g rante d. I t is further

ORDERED that the Secre tary ' s motion to dismiss is g rante d, and the appea l is DI SMI SSED for lac k of jurisdiction.

DATED: Marc h 18, 2015 PER C URI AM.

GREENB ERG, Judge , dissenting:

I dissent. The Court must decide matters of equitable toll ing on a case-by -ca se basis. See Ferguson v. Shinseki
, No. 13-1149, 2014 WL 463690 (U.S. Vet. App. Fe b. 6, 2014) (Gre enber g , J ., concur ring ); Mapu v. Nicholson
, 397 F.3d 1375, 1380 (F ed. Cir. 2005) (" eq u i t ab l e tolling is not limit ed to a small and closed set of fac tual patterns" and is rathe r decide d on a "c ase by case basis")

. This Court has been admonished for "f ocus[ing] too narr owly on whether [an a ppellant' s] case fell into one of the fac tual p at t er n s of past case s considering § 7266(a) ." Sneed v. Shinseki
, 737 F.3d 719, 726 (F ed. Cir. 2013). "[T]his Court is fre e to extend the principles of equitable tolling to new situations when war

rante d," Nelson v. Nicholson
, 19 Vet.App. 548, 551 (2006), and it should do so here , so as to not exclude this di lige nt appellant fr om making his c ase on the merits.

We note that the 12 0-day per iod in w hich to app eal a Bo ard decisi o n i s no t j ur i sd i c tional, see 38 U.S.C. 5 § 7 26 6( a); it is, how ever, d istin ct and sep arate from our adj udicator y

au thority to review f inal Bo ard de cisions, w

hich is jurisdic tional, see 38 U.S.C. § 72 52 (a)

.
9The evidenc e ref lects that the appellant never rec eived the statutorily mandated 120 day s to file an appea l beca

use he resides in the Phili ppines. All the appellant' s corr espondenc e related to the matter on appea l indicates a two- to t h re e- we ek delay for delivery

. For example, the appellant' s motion for rec onsideration was postmarked by the Phili ppine Postal Corporation on November 20, 2013, but was rec eiv ed by VA 15 day s later, on Dec ember 5, 2013. Additionally
, the appellant' s Notice of Appea l was postm arke d on Marc h 18, 2014, but was rec eived 20 day s later, on April 7, 2014. The time for delivery for these filings exceeds the 13 day s by which the appellant missed the 120-day appea l period from the Boa rd decision. The appellant states that he rec eived th e Bo ard decision at least two wee ks afte r it was mailed, and that statement is supported by the pattern of his other filing s. The appe llant had, at most, only 106 day s to file his appea l.

Equitable tolling is war

rante d wher e a diligent appellant was unable to file timely

. See J O H N N O R TO N P O M E R

O Y , P O M E R O Y ' S E Q U IT Y J U R IS P R U D E N C E A N D E Q U IT A B L E R E M E D IE S , § 419 (3d ed. 1905) (" ' Nothing can call forth this court into activity but conscie nce, g ood faith, and reasonable diligence. ' " (quoting L ord C amden, Smith v. Clay , (1767) 27 Eng . Rep. 418 (Ch.) 420; Amb. 645, 647) (empha sis in orig inal)). I n this case , there is no action that the appellant could rea sonably have taken to speed up his rec eipt of the Boa rd decision. I t is irrele vant to the Court's evaluation of diligenc e that the appellant could have filed his motion within a shortened appea l period of 106 day s. That the appellant filed his motion for rec onsideration within 120 day s of rec eiving that decision is

a sufficie nt demonstration of his diligenc e. Where, as here
, the fa ct s indicate that the appellant' s filing was untimely because of the mailing delay
, not in addition to it, equitable t o l l i n g is appropr iate.

During L ord Ellesmere ' s dispute over the roles of equity and law with L ord Coke, Ellesmere stated: "T he Cause why there is a Chance ry is, for that Mens Actions are so divers and infinite, That it is i mpossible to make any g ener al L aw which may aptly meet with e very particula r Ac t, and not fail in some Circumstance s." Earl of Oxford's Case
, (1615) 21 Eng

. Rep. 485 (Ch.) 486; Re p. Ch. 1, 6. The principle that equity exis ts to protec t ag ainst the failure s of narr owly presc ribed rules oug ht to be ref lected in this Court's equitable tolling jurisprudenc e. That this appellant' s circ umstances do not confor

m to a narr ow interpre tation of the Court's prec edent should on l y h as t en the Court's expansion of its equity jurisprudenc e. That jurisprudenc e must be more inclusive so as to proper ly discharg e the essential duty of equity : to provide relief in light of diverse and infinite circ umstances for which fix ed laws cannot acc ount. Fiat justitia ruat caelum

. See Rex v. W ilkes
, (1770) 98 Eng

. Rep. 327 (K.B .) 347 (L ord Mansfield); 4 Bur r. 2527, 2562; see also Somerset v. S t ew a r t , (1772) 98 Eng

. Rep. 499 (K.B .) 509; L offt 1, 17; for a relev ant description of general equitable principles,

see also Dr i s co l l v. Burlington-Bristol Bridge Co.
, 8 N.J

. 433, 499-500 (1952) (" [U] nder g ener al principles of equity the court may require

. . . so that as near ly as may be the parties will be protec ted and equity done, Hartman v. Hartle
, 95 N.J

. Eq. 123, 125, 122 A. 615 (Ch. 1923); Attorney Gene ral

v. Linden Cemete ry Ass'n
, 85 N.J

. Eq. 501, 506-07, 96 A. 1001 (E. & A. 1916); 1 P O M E R O Y , E Q U I TY J UR I S P R UD E N C E (5th ed. 1941), § 237e ; 2 R E S TA TE ME N T , T R U S TS (1935), § 291." ). I

dissent.

10