N OTE : This disposition is nonprecedential.


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

______________________
LARRY J. HARRINGTON, Claimant

- Appellant

v.

DAVID J. SHULKIN, SECRETARY O F 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

______________________

L ARRY J. H ARRINGTON , Brownsburg, IN, pro se.

D ANIEL K ENNETH G REENE , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent

- appellee. Also represented by C HAD A. R EADLER
, R OBERT E. K IRSCHMAN
, J R
., T ARA K. H OGAN ; B RIAN D. G RIFFIN
, L ARA E ILHARDT
, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________HARRINGTON v. SHULKIN 2

Before P ROST
, Chief Judge, R EYNA and H UGHES
, Circuit Judges.

P ER C URIAM

. Larry J. Harrington appeals the decision of the Uni ted States Court of Appeals for Veterans Claims (“Vete rans Court”) , issued in Harrington v. Shulkin , No. 17

- 0423, 2017 WL 1534063, at *1 (Vet. App. Apr. 28, 2017)

, di smissing 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 obstru ctive sleep apnea.

Mr. Harrington continued the appeal and o n October
11 , 201 6, the Board denied hi s claim s for increased dis ability benefits

. On February 9 , 201 7

, one day after the
120

- day statutory appeal period ended

, Mr. Harrington filed a Notice of A ppeal 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. Ha rrington 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 unab le to meet the r e-HARRING TON v. SHULKIN 3

quired deadline, which resulted in untimely filing.” App. 5.

The Veterans Court considered whether Mr. Harrin gton’s statement warranted equitable tolling of the 120

- day appeal period

, concluding it did not. App. 1 (citing Checo v. Shin seki , 748 F.3d 1373 (Fed. Cir. 2014); Sneed v. Shinseki , 737 F.3d 719 (Fed. Cir. 2013) ). In p articular, 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 M r. 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

reg ulation 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 application s of law to fact, in the equitable tolling context,

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

tion of the legal standard for equitable tolling

. In partic ular, this court has treated the question of equitable tolling

as “ a matter of law ” that we are author ized by statute to address “[w] hen the ma terial 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. Princ ipi , 351 F.3d 1381, 1384 (Fed. Cir. 2003) )

. Here, t he 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 N otice of A ppeal must be filed within 120 days of

t he 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 toll ing. S ee, 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 dil igence; 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 expe ct the Appellant to prepare a defense in 2 separate Federal Courts at the same time.” Appellant’s Informal Br. 1. But Mr. Ha rrington provided nothing to support this conclusory

statement. Because t he Veterans Court found that Mr. Harrington failed to pr ovide any evidence of due diligence or causation during the period he was working on his appeal with the Social Security Administration

, s ee Checo

, 748 F.3d at 1380

– 81 ( adopting a stop

- clock approach andHARRING TON v. SHULKIN 5

holding that a claimant must only demonstrate due diligence and causation during the extraordinary

circum stance period), it appears that Mr. Harrington is arguing that the Veterans Court’ s decision not to apply equitable tolling was improper. That challenge, ho wever, is to the Veterans Court’ s applicatio n 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 co rrect legal standard to determine whether Mr. Harrin gton’ s contemporaneous appeal with the Social Security Administration require s 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, ” Appe llant’s Informal Br. 1, appears to be an explicit challenge to the Veterans Court’s factual findings and its applic ation of law to fact, which we are expressly barred from reviewing under § 7292(d)(2).

B ecause Mr. Harrington has not raised any issue within our limited jurisdiction, we must dismiss his appeal.

DISMISSED

C OSTS
The parties shall bear their own costs.