NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LARRY J. HARRINGTON,

Claimant-Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-2131

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 17-423, Judge Mary J. Schoelen.

______________________ 

Decided: September 7, 2017

______________________ 

 LARRY J. HARRINGTON, Brownsburg, IN, pro se.

 DANIEL KENNETH GREENE, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent-appellee. Also 

represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,

JR., TARA K. HOGAN; BRIAN D. GRIFFIN, LARA EILHARDT, 

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC.

______________________ 
2 HARRINGTON v. SHULKIN

Before PROST, Chief Judge, REYNA and HUGHES, 

Circuit Judges.

PER CURIAM. 

Larry J. Harrington appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”), issued in Harrington v. Shulkin, No. 17-0423, 

2017 WL 1534063, at *1 (Vet. App. Apr. 28, 2017), dismissing as untimely his appeal of a decision of the Board 

of Veterans’ Appeals (“Board”). Because Mr. Harrington 

has not raised any issue within our limited jurisdiction, 

we must dismiss his appeal.

I 

A September 2009 rating decision by a Regional Office 

(“RO”) of the United States Department of Veterans 

Affairs granted Mr. Harrington’s service connection for 

bronchial asthma with obstructive sleep apnea, rated 30% 

disabling, and for gastroesophageal reflux disease, rated 

10% disabling. He appealed this decision, and the RO 

awarded an increased 50% rating for bronchial asthma 

with obstructive sleep apnea.

Mr. Harrington continued the appeal and on October 

11, 2016, the Board denied his claims for increased disability benefits. On February 9, 2017, one day after the 

120-day statutory appeal period ended, Mr. Harrington

filed a Notice of Appeal at the Veterans Court. 

The Veterans Court ordered Mr. Harrington to show 

cause why his appeal should not be dismissed as untimely

and advised him that failure to respond may result in the 

dismissal of his appeal without further notice. Mr. Harrington timely responded to that order asserting that

“[his] appeal should not be dismissed for untimely filing 

because of the following: [he] was appealing a decision 

from the Social Security Administration from October 

2016 to January 2017, and was unable to meet the re-
HARRINGTON v. SHULKIN 3

quired deadline, which resulted in untimely filing.” 

App. 5. 

The Veterans Court considered whether Mr. Harrington’s statement warranted equitable tolling of the 120-day 

appeal period, concluding it did not. App. 1 (citing Checo 

v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014); Sneed v. 

Shinseki, 737 F.3d 719 (Fed. Cir. 2013)). In particular, 

the court found that:

The appellant has failed to explain why his appeal 

with the Social Security Administration prevented 

him from timely filing his [Notice of Appeal] with 

the Court despite the exercise of due diligence. 

Absent such an explanation, the appellant may 

not benefit from the doctrine of equitable tolling, 

and this appeal must therefore be dismissed.

App. 1–2.

The Veterans Court dismissed Mr. Harrington’s 

claim. He timely appealed. 

II

A 

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. See 38 U.S.C. § 7292. We 

may review a Veterans Court decision with respect to the 

validity of a decision on a rule of law or the validity or 

interpretation of any statute or regulation that was relied 

upon by the Veterans Court in making the decision. Id.

§ 7292(a), (d)(1). But we “may not review (A) a challenge 

to a factual determination, or (B) a challenge to a law or 

regulation as applied to the facts of a particular case,” 

except to the extent an appeal presents a constitutional 

issue. Id. § 7292(d)(2).

Although we cannot consider pure questions of fact or 

applications of law to fact, in the equitable tolling context, 

we do have jurisdiction when an appellant urges altera-
4 HARRINGTON v. SHULKIN

tion of the legal standard for equitable tolling. In particular, this court has treated the question of equitable tolling 

as “a matter of law” that we are authorized by statute to 

address “[w]hen the material facts are not in dispute and 

the adoption of a particular legal standard would dictate 

the outcome of the equitable tolling claim.” Sneed v. 

McDonald, 819 F.3d 1347, 1351 (quoting Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003)). Here, the 

adoption of a particular legal standard would not dictate 

the outcome of Mr. Harrington’s equitable tolling claim, 

nor has he raised this issue. Thus, this jurisdictional 

exception does not apply.

B 

A Notice of Appeal must be filed within 120 days of 

the Board’s decision. 38 U.S.C. § 7266(a). This deadline 

is not jurisdictional. Henderson v. Shinseki, 562 U.S. 428, 

431, 438–42 (2011). As a consequence, both the Veterans 

Court and this court have treated the filing period as 

subject to equitable tolling. See, e.g., Sneed v. Shinseki, 

737 F.3d at 726; Bove v. Shinseki, 25 Vet. App. 136, 140 

(2011), overruled on other grounds by Dixon v. McDonald, 

815 F.3d 799 (Fed. Cir. 2016). To obtain the benefit of 

equitable tolling, “a claimant must demonstrate three 

elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation.” Checo, 748 F.3d at 1378.

Mr. Harrington argues that “[t]his case clearly 

demonstrate [sic] the three elements of equitable tolling. 

The Appellee cannot reasonably expect the Appellant to 

prepare a defense in 2 separate Federal Courts at the 

same time.” Appellant’s Informal Br. 1. But Mr. Harrington provided nothing to support this conclusory 

statement. Because the Veterans Court found that Mr. 

Harrington failed to provide any evidence of due diligence 

or causation during the period he was working on his 

appeal with the Social Security Administration, see Checo, 

748 F.3d at 1380–81 (adopting a stop-clock approach and 
HARRINGTON v. SHULKIN 5

holding that a claimant must only demonstrate due 

diligence and causation during the extraordinarycircumstance period), it appears that Mr. Harrington is 

arguing that the Veterans Court’s decision not to apply 

equitable tolling was improper. That challenge, however, 

is to the Veterans Court’s application of the governing 

legal standard to the facts of his case. We have previously 

held that we lack jurisdiction to consider whether the 

Veterans Court properly applied the doctrine of equitable 

tolling. See, e.g., Leonard v. Gober, 223 F.3d 1374, 1376 

(Fed. Cir. 2000). 

Mr. Harrington does not argue that the Veterans 

Court erroneously interpreted a rule of law, statute, or 

regulation. Indeed, the Veterans Court applied the correct legal standard to determine whether Mr. Harrington’s contemporaneous appeal with the Social Security 

Administration requires equitable tolling of the appeals 

period. Nor does Mr. Harrington raise a constitutional 

issue or make any other legal arguments in his informal 

brief. His contention that the Veterans Court “failed to 

adjudicate based [on] the whole record concept,” Appellant’s Informal Br. 1, appears to be an explicit challenge 

to the Veterans Court’s factual findings and its application of law to fact, which we are expressly barred from 

reviewing under § 7292(d)(2).

Because Mr. Harrington has not raised any issue 

within our limited jurisdiction, we must dismiss his 

appeal.

DISMISSED

COSTS

The parties shall bear their own costs.