United States Court of Appeals 

for the Federal Circuit ______________________ 

VICTOR B. SKAAR,

Claimant-Cross-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellant

______________________ 

2021-1757, 2021-1812

______________________ 

Appeals from the United States Court of Appeals for 

Veterans Claims in No. 17-2574, Chief Judge Margaret C. 

Bartley, Judge Amanda L. Meredith, Judge Michael P. Allen.

______________________ 

Decided: September 8, 2022

______________________ 

CAROLINE MARKOWITZ, Veterans Legal Services Clinic, 

Jerome N. Frank Legal Services Organization, Yale Law 

School, New Haven, CT, argued for claimant-cross-appellant. Also represented by MEGHAN BROOKS, MATTHEW 

HANDLEY, ADAM HENDERSON, JOSHUA HERMAN, MICHAEL 

JOEL WISHNIE. Also argued by ANTHONY PICCIRILLO, Simpson Thacher & Bartlett LLP, New York, NY. Also represented by LYNN K. NEUNER. 

 SOSUN BAE, Commercial Litigation Branch, Civil 

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2 SKAAR v. MCDONOUGH

Division, United States Department of Justice, Washington, DC, argued for respondent-appellant. Also represented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,

PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, JONATHAN 

KRISCH, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 JONATHAN D. SELBIN, Lieff, Cabraser, Heimann & 

Bernstein, LLP, New York, NY, for amici curiae Maureen 

S. Carroll, Zachary Clopton, Brooke D. Coleman, Robin Effron, Maria Glover, Andrew Hammond, Deborah R. Hensler, Helen Hershkoff, Alexandra D. Lahav, Elizabeth G. 

Porter, Alexander Reinert, Judith Resnik, Michael D. 

Sant'Ambrogio, Joan E. Steinman, Adam S. Zimmerman. 

Also represented by YAMAN SALAHI, Edelson PC, San Francisco, CA. 

 DORIS JOHNSON HINES, Finnegan, Henderson, 

Farabow, Garrett & Dunner, LLP, Washington, DC, for 

amicus curiae National Veterans Legal Services Program.

 ______________________ 

Before MOORE, Chief Judge, NEWMAN and HUGHES,

Circuit Judges.

HUGHES, Circuit Judge. 

United States Air Force veteran Victor B. Skaar was 

exposed to ionizing radiation while participating in a 

cleanup operation in Palomares, Spain. Thirty years later, 

he was diagnosed with leukopenia. He filed a claim with 

the Department of Veterans Affairs for service-connected

benefits, and the Board of Veterans’ Appeals denied his

claim. Mr. Skaar appealed the Board’s denial to the United 

States Court of Appeals for Veterans Claims. There, he

challenged the soundness of the radiation dose estimates 

provided by the Air Force and relied upon by the Board in 

denying his claim. By motion for class certification,

Mr. Skaar sought to make this challenge on behalf of all 

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SKAAR v. MCDONOUGH 3

similarly situated veterans who had participated in the 

Palomares cleanup operation. The Veterans Court certified 

a class, with Mr. Skaar serving as its representative, that 

includes veterans who had not received a Board decision 

and that excludes veterans whose claims had been denied 

but not timely appealed. See Skaar v. Wilkie, 32 Vet. App. 

156, 201 (2019) (Class Certification). The Secretary of Veterans Affairs appeals, and Mr. Skaar cross-appeals, the 

Veterans Court’s class definition. 

On appeal, the Secretary asserts that the Veterans 

Court lacked authority to certify a class that includes veterans who had not received a Board decision—a statutory 

prerequisite for the court’s jurisdiction pursuant to

38 U.S.C. § 7252(a)—because jurisdiction over Mr. Skaar’s 

individual claim did not create further jurisdiction over a 

class of similarly situated veterans whose individual 

claims were beyond the court’s jurisdiction. We agree. By 

certifying a class that includes veterans who had not received a Board decision, the Veterans Court exceeded its 

jurisdiction. We accordingly vacate the court’s class certification and remand for further proceedings. 

On cross-appeal, Mr. Skaar contends that the Veterans 

Court should have equitably tolled the appeal period for 

veterans whose claims had been denied but not timely appealed and thus should have included such veterans as

members of the certified class. We disagree. The Veterans 

Court rightly declined to equitably toll the appeal period 

for claimants who had not timely appealed their denied 

claims since none of the claimants had alleged, let alone 

established, the requisite due diligence in pursuing their 

rights. See Toomer v. McDonald, 783 F.3d 1229, 1237–38 

(Fed. Cir. 2015). Thus, should the Veterans Court choose to 

reconsider on remand whether class certification is appropriate, the court shall confine the proposed class to include 

only Palomares veterans who had timely appealed, or were 

still able to timely appeal, Board decisions denying their 

radiation exposure claims.

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4 SKAAR v. MCDONOUGH

I 

A 

In January 1966, a United States Air Force B-52

bomber carrying four thermonuclear weapons collided midair with another aircraft. Two of the weapons crashed into 

the ground near Palomares, Spain, and released “radioactive plutonium dust over the area, contaminating soil and 

crops, and spreading radioactive debris for miles.” Class 

Certification, 32 Vet. App. at 168. “Mr. Skaar, along with 

nearly 1,400 other U.S. military personnel,” assisted in the 

cleanup. Id. They also provided urine and nasal swab samples while on site “to assess possible radioactive exposure.” 

Id. A group of service members “determined to be among 

the most exposed,” including Mr. Skaar, were monitored 

for signs of radiogenic conditions for 18 to 24 months after 

the accident. Id. 

Monitoring efforts for Mr. Skaar continued until December 1967, when the Air Force concluded that his health 

was not in “jeopardy from retention of radioactive materials as a result of participation in the [Palomares cleanup] 

operation.” Id. (alteration in original) (citation omitted).

Three decades later, in 1998, Mr. Skaar was diagnosed 

with leukopenia, a blood disorder characterized by a decrease in white blood cell count. His doctor opined that exposure to ionizing radiation “appear[s] to be the positive 

agent” that historically causes leukopenia, but “concluded 

[that] ‘we have been unable to prove this.’” Id. Mr. Skaar 

subsequently filed a claim for service-connected benefits, 

which the agency denied in February 2000.

Mr. Skaar moved to reopen his claim in March 2011, 

and the regional office requested a radiation exposure opinion. The Air Force—the service branch responsible for

providing the agency with exposure data and dose estimates for Palomares veterans—estimated “that 

Mr. Skaar’s maximum total effective dose during the Palomares cleanup was 4.2 rem with a bone marrow committed 

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SKAAR v. MCDONOUGH 5

dose of 1.18 rem, compared to annual dose limits of 5 and 

50 rem, respectively, for occupations typically involving radiation exposure.” Id. at 169. Relying on these estimates,

the Under Secretary for Benefits found it unlikely that 

Mr. Skaar’s leukopenia was caused by radiation exposure 

while in military service and shared these findings in a 

dose estimate opinion provided to the regional office in 

May 2012. Shortly thereafter, the regional office denied 

Mr. Skaar’s claim, and he appealed the denial to the Board.

“In October 2013, a private physician opined that 

Mr. Skaar’s leukopenia ‘is likely related to exposure to 

heavy radioactive material in [1966].’” Id. at 170 (alteration in original) (citation omitted). Two months later, while 

Mr. Skaar’s appeal was still pending before the Board, the 

Air Force discovered errors in its radiation dose methodology, which was underestimating doses for some individuals 

including Palomares veterans. Consequently, “the Air 

Force intended to ‘formally standardize [its] response 

methodology for radiation dose inquiries involving Palomares participants’ by establishing dose estimates based 

on each veteran’s specific duties.” Id. (alteration in original) (citation omitted).

After reevaluating its dose estimate methodology, the 

Air Force provided the agency with revised dose estimates 

for Mr. Skaar, “assigning him a new maximum total effective dose of 17.9 rem and a bone marrow committed dose of 

14.2 rem.” Id. The Board found that these revised dose estimates amounted to new and material evidence warranting another dose estimate opinion and remanded the claim.

The regional office obtained and considered a new dose estimate opinion from August 2016. Nonetheless, the regional office again found it unlikely that Mr. Skaar’s 

“leukopenia was caused by exposure to ionizing radiation 

during military service,” and denied his claim. Id. 

Mr. Skaar appealed to the Board. 

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6 SKAAR v. MCDONOUGH

“[I]n September 2016, a private physician opined that 

Mr. Skaar’s leukopenia was ‘a result of exposure to ionizing 

radiation/plutonium.’” Id. Even so, the Board denied 

Mr. Skaar’s claim. In the Board’s view, the August 2016 

dose estimate opinion was “‘highly probative’ because it 

‘was based on a review of the entire record,’ while

Mr. Skaar’s private medical opinions were not as probative 

because ‘none offered any rationale for their statements.’”

Id. (citation omitted). Mr. Skaar appealed the Board’s decision denying his claim. 

B 

Before the Veterans Court, Mr. Skaar challenged the 

agency’s “omission of the Palomares cleanup from the 

. . . radiation-risk activities” listed in 38 C.F.R. 

§ 3.309(d)(3)(ii), as well as the Board’s reliance on allegedly 

unsound dose estimates, in violation of 38 C.F.R. § 3.311(c), 

“when adjudicating Palomares veterans’ claims.” Class 

Certification, 32 Vet. App. at 171. Mr. Skaar moved to 

make these challenges on behalf of similarly situated veterans who were present during the Palomares cleanup. Id.

at 170. The Veterans Court granted in part Mr. Skaar’s 

motion and certified a class to litigate the § 3.311 challenge.1 Id. at 201.

Relying on its existing authority to certify class actions

in the petition context under Monk v. Shulkin, 855 F.3d 

1312, 1318–20 (Fed. Cir. 2017), the Veterans Court determined that it “possess[es] the power to aggregate claims 

and certify class actions in the appeal context.” Class Certification, 32 Vet. App. at 178. The court further acknowledged that class composition depends on whether it has 

1 The Veterans Court held that Mr. Skaar lacks 

standing to bring the § 3.309 challenge but has standing to 

pursue the § 3.311 challenge. Class Certification, 

32 Vet. App. at 172. He has not appealed this holding.

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SKAAR v. MCDONOUGH 7

jurisdiction over each class member, that the court has 

“only one source of jurisdiction: 38 U.S.C. § 7252,” and that 

“a final Board decision operates as the jurisdictional ‘trigger’ that gives [the Veterans Court] the authority to hear a 

particular appeal.” Id. at 180. Breaking down the proposed 

class into five subgroups, the court then considered 

whether it has jurisdiction over the putative class comprising all veterans who were present at the 1966 Palomares 

cleanup that 

(1) had filed a radiation exposure claim with the

agency, but had not timely appealed the regional 

office’s denial to the Board (past claimants);

(2) had filed a radiation exposure claim with the 

agency and appealed the regional office’s denial to 

the Board, but had not timely appealed the Board’s 

denial to the Veterans Court (expired claimants);

(3) had appealed, or were still able to timely appeal, the Board’s denial of a radiation exposure 

claim to the Veterans Court (present claimants);

(4) had filed a radiation exposure claim that was 

still pending either before the regional office or the 

Board (present-future claimants); or

(5) have developed a radiogenic condition but have 

not yet filed a radiation exposure claim with the 

agency (future-future claimants).

Id. at 179–180. The court determined that it has jurisdiction over present claimants “because they possess final 

Board decisions and either their 120-day windows to appeal those decisions to [the Veterans] Court have not yet 

expired or these claimants have already appealed within 

the 120-day time period.” Id. at 180 (citing 38 U.S.C. 

§§ 7252(a), 7266(a)). 

As for present-future and future-future claimants, the 

Veterans Court recognized that these claimants “pose a 

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8 SKAAR v. MCDONOUGH

unique jurisdictional issue” since none of them have received final Board decisions. Id. Still, the court concluded

that its “jurisdictional statute does not prohibit the[] inclusion” of such claimants as class members. Id. Instead, the 

Veterans Court held that, “pursuant to [its] statutory authority under 38 U.S.C. §§ 7252 and 7261,” it has “the authority to certify class actions that include veterans who 

have not yet received a final Board decision and those who 

have not yet filed a claim.” Id. (citing Monk, 855 F.3d at 

1318). In the court’s view, “Mr. Skaar, as class representative, ha[d] obtained a final Board decision pursuant to 

[§] 7252,” and his “satisfaction of [this] jurisdictional requirement” vested the court with jurisdiction over other 

class members, “much in the same way a named plaintiff’s 

consent to proceed before a magistrate is sufficient to grant 

the magistrate jurisdiction to enter final judgment as to all 

class members.” Id. at 181–82. Moreover, the court explained, Mr. Skaar’s Board decision had opened a “jurisdictional door” that allowed the Veterans Court to “use [its] 

other authorities, as explained in Monk [], to aggregate 

Mr. Skaar’s claims with those of the remaining class members.” Id. at 181. 

Then, turning to Bowen v. City of New York, 476 U.S. 

467 (1986) for support, the Veterans Court held that it has 

“jurisdiction to certify a class action that includes members 

who do not have a final Board decision” so long as “(i) the 

challenged conduct is collateral to the class representative’s administratively exhausted claim for benefits—i.e., 

the class representative has obtained a final Board decision; (ii) enforcing the exhaustion requirement would irreparably harm the class; and (iii) the purposes of 

exhaustion would not be served by its enforcement.” Id. at 

184–85. The court applied this standard here, and determined that it had jurisdiction over present-future and future-future claimants “and [need] not require exhaustion 

of administrative remedies by each and every class member.” Id. at 185. The Veterans Court accordingly included 

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SKAAR v. MCDONOUGH 9

present-future and future-future claimants, along with 

present claimants, in the class. Id. at 186.

Next considering past and expired claimants, the court

declined to equitably toll the appeal period for claimants 

who failed to timely appeal their denied claims and excluded both subgroups from the proposed class on that basis. Id. at 189. These claimants, the court observed, “could 

have challenged [the agency’s] treatment of Palomares veterans just like Mr. Skaar, yet each chose not to.” Id. at 187.

And, the court noted, Mr. Skaar did not present any reason 

“to depart from Bove’s principle that the 120-day Notice of 

Appeal window to [the Veterans Court] will only be waived 

‘when circumstances precluded a timely filing despite the 

exercise of due diligence.’” Id. (quoting Bove v. Shinseki, 

25 Vet. App. 136, 140 (2011) (per curiam), overruled on 

other grounds by Dixon v. McDonald, 815 F.3d 799 

(Fed. Cir. 2016)). Thus, the court confined the class to present, present-future, and future-future claimants. 

The Veterans Court then invoked Federal Rule of Civil 

Procedure 23 “as a guide for class certification in the appeal context,” and considered whether the class met the 

requisites for class certification pursuant to Rule 23. Id. at 

189. Finding that it did, the court certified the class, excluding past and expired claimants. Id. at 201. It defined 

the class as follows: 

[a]ll U.S. veterans who were present at the 

1966 cleanup of plutonium dust at Palomares, 

Spain, and whose application for service-connected 

disability compensation based on exposure to ionizing radiation [the agency] has denied or will deny 

by relying, at least in part, on the findings of dose 

estimates requested under 38 C.F.R. § 3.311, except those whose claims have been denied and relevant appeal windows of those denials have 

expired . . . . 

Id. at 189. 

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10 SKAAR v. MCDONOUGH

A year after certifying the class, the Veterans Court issued a decision on the merits of Mr. Skaar’s § 3.311 challenge on behalf of the certified class. Skaar v. Wilkie, 

33 Vet. App. 127 (2020) (Merits Decision). The court held 

that the Board had “provided an inadequate statement of 

reasons or bases for concluding that the Air Force’s dose 

estimate constituted sound scientific evidence.” Id. at 141. 

And as a result, the court set aside the April 2017 Board 

decision denying service connection for leukopenia and remanded the matter for the Board to readjudicate 

Mr. Skaar’s § 3.311 challenge, further stating that “[t]his 

portion of [its] decision applies to the class certified in this 

matter.” Id. at 143–44, 149. Following its merits decision, 

the Veterans Court entered judgment on January 12, 2021

and denied Mr. Skaar’s motion for immediate issuance of 

mandate. Judgment at 1, Skaar v. Wilkie, 33 Vet. App. 127 

(2020) (No. 17-2574); Judge’s Stamp Order, for the Panel, 

Denying Appellant’s Opposed Motion for Immediate Issuance of Mandate at 1, Skaar v. Wilkie, 33 Vet. App. 127 

(2020) (No. 17-2574).

The Secretary appeals and Mr. Skaar cross-appeals, 

both challenging the Veterans Court’s class definition. 

II

A 

Our jurisdiction to review decisions of the Veterans 

Court is governed by 38 U.S.C. § 7292. Unlike other statutory provisions that govern our jurisdiction, § 7292 does not 

expressly premise appellate review on the finality of the

Veterans Court’s decision. Compare 28 U.S.C. § 1295(a)(1) 

(conferring jurisdiction over “an appeal from a final decision of a district court”), with 38 U.S.C. § 7292(a) (“After a 

decision of the [Veterans Court] is entered in a case, any 

party to the case may obtain a review of the decision . . . .”). 

Nevertheless, we have “generally declined to review nonfinal orders of the Veterans Court.” Williams v. Principi, 

275 F.3d 1361, 1363 (Fed. Cir. 2002) (citation omitted). So 

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SKAAR v. MCDONOUGH 11

“remand orders from the Veterans Court ordinarily are not 

appealable because they are not final.” Adams v. Principi, 

256 F.3d 1318, 1320 (Fed. Cir. 2001). We will, however, depart from this strict rule of finality when the Veterans 

Court remands a matter for further proceedings if the following conditions are satisfied: 

(1) there must have been a clear and final decision 

of a legal issue that (a) is separate from the remand 

proceedings, (b) will directly govern the remand 

proceedings[,] or, (c) if reversed by this court, would 

render the remand proceedings unnecessary; 

(2) the resolution of the legal issues must adversely 

affect the party seeking review; and 

(3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue. 

Williams, 275 F.3d at 1364 (footnotes omitted). The class 

certification satisfies these criteria. 

First, the Veterans Court issued a clear and final decision regarding its jurisdiction to certify a class that includes veterans who had not received a Board decision. See 

Travelstead v. Derwinski, 978 F.2d 1244, 1247–49 

(Fed. Cir. 1992) (holding that when “the court rendered a 

‘decision’ interpreting a statute . . . and compelling action 

of the Secretary, on remand, . . . [t]his ‘decision’ was a final 

disposition of the proceeding,” and was appealable). That 

decision addressed a legal issue involving the Veterans 

Court’s jurisdictional statute that is separate from the remand proceeding involving 38 C.F.R. § 3.311(c) and dose 

estimates. Compare Class Certification, 32 Vet. App. at

166 (“We do not today address the merits of Mr. Skaar’s 

claim.”), with Merits Decision, 33 Vet. App. at 132 (“Today 

we address the merits of Mr. Skaar’s appeal . . . . Beginning with the class claim concerning radiation dose estimates, we hold that the Board failed to meet its obligation 

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12 SKAAR v. MCDONOUGH

under 38 C.F.R. § 3.311(c) to ensure that dose estimates 

[the agency] received from the Air Force constitute ‘sound 

scientific evidence.’ We will remand this issue to the 

Board . . . .”). 

Second, the Veterans Court’s resolution of the jurisdictional issue will adversely affect the Secretary by requiring

the Secretary to expend time and resources addressing individuals beyond the Secretary’s statutorily-permitted 

reach, i.e., veterans who have not filed claims for benefits.2

2 The Veterans Court’s resolution of the jurisdictional issue not only affects the Secretary but also affects 

Mr. Skaar and similarly situated Palomares veterans who 

might benefit from a precedential opinion regarding the 

§ 3.311 challenge. See Merits Decision, 33 Vet. App. at 151 

(Meredith, J., concurring in part and dissenting in part) (“I 

am compelled to comment that the result here demonstrates that the en banc Court’s resurrection of the limited 

remand mechanism, for the purpose of deciding 

[Mr. Skaar’s] motion for class certification, turned out not 

to be an effective tool. More than 3 years after [Mr. Skaar] 

appealed the April 2017 Board decision, the panel is left 

with no choice but to conclude that the Board provided an 

inadequate statement of reasons or bases for its decision 

and to remand the matter for readjudication—the same relief that the en banc Court could have, and in my view, 

should have initially provided. Instead, the parties and the 

en banc Court expended considerable time and resources 

debating the efficacy of conducting class actions in the appellate context and the bounds of the Court’s jurisdiction, 

without bringing [Mr. Skaar] any closer to receiving a decision that adequately addresses the merits of whether the 

dose estimates relied on by [the agency] are based on a 

methodology that complies with 38 C.F.R. § 3.311(c).” (citations omitted)); see also Class Certification, 32 Vet. App. 

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SKAAR v. MCDONOUGH 13

See 38 U.S.C. § 5101(a)(1)(A); Travelstead, 978 F.2d at 

1248.

Third, there is a substantial risk that the remand proceeding may deprive the Secretary of an opportunity to

later contest the Veterans Court’s jurisdiction over the certified class since the Secretary is statutorily precluded from 

appealing to the Veterans Court any Board decision, including a grant of the class claim. See 38 U.S.C. § 7252(a); 

see also Merits Decision, 33 Vet. App. at 154 (Meredith, J., 

concurring in part and dissenting in part) (“[T]he Board’s 

inadequate statement of reasons or bases frustrates judicial review, precluding [the Veterans Court’s] ability to provide the requested class-wide relief and compelling [the 

court] to remand the matter for full readjudication without 

retaining jurisdiction. And, [the court] ha[s] no reason to 

assume that further adjudication of the [veteran’s] claim 

will lead to a final Board decision adverse to the [veteran] 

or subsequent appellate review of the class issue for which 

he is the representative.”). Thus, we may exercise jurisdiction over the court’s class certification decision. See Dambach v. Gober, 223 F.3d 1376, 1379 (Fed. Cir. 2000) (“We do 

have jurisdiction . . . when there is a statutory 

at 209 (Falvey, J., dissenting) (“We believe that the majority has created a class that exceeds our jurisdiction and offers a comparable outcome to members of that class that a 

precedential decision could provide without the manageability and preclusion problems inherent in class litigation.”); id. at 221 (“If we had an adequate record, a panel 

might have, months ago, found that the dose methodology 

[the agency] used in Mr. Skaar’s case was flawed and counter to 38 C.F.R. § 3.311. Its decision, a nationwide precedent, would have fixed any such systemic dose estimate 

problem and [the agency] would have been required to apply the Court’s holding consistently to all veterans’ cases.”). 

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14 SKAAR v. MCDONOUGH

interpretation that will affect the remand proceeding and 

that legal issue might evade our future review.”).

B 

By statute, we may “review and decide any challenge 

to the validity of any statute or regulation or any interpretation thereof . . . and . . . interpret constitutional and statutory decisions, to the extent presented and necessary to a 

decision.” 38 U.S.C. § 7292(c). But our jurisdiction does not 

extend to challenges either to factual determinations or to 

the application of the law to the facts of a particular case, 

absent a constitutional issue. Id. § 7292(d)(2). Whether the 

Veterans Court had jurisdiction is a matter of statutory interpretation, see id. § 7252(a) (defining the Veterans 

Court’s jurisdiction), which we review de novo, In re Wick, 

40 F.3d 367, 370 (Fed. Cir. 1994). Likewise, whether the 

Veterans Court applied the correct legal standard for equitable tolling is a question of law we review de novo. James 

v. Wilkie, 917 F.3d 1368, 1372 (Fed. Cir. 2019).

III

The Veterans Court certified a class that includes present, present-future, and future-future claimants but excludes past and expired claimants. The primary question 

before us, on appeal and cross-appeal, is which subgroups 

of claimants should the Veterans Court have included in, 

or excluded from, the certified class. The Secretary would 

have us confine the class to only present claimants, while 

Mr. Skaar would define the class broadly to include past, 

expired, present, present-future, and future-future claimants. We agree with the Secretary. The certified class 

should have included only present claimants because the 

Veterans Court did not have jurisdiction over past, present-future, or future-future claimants, and because the 

expired claimants cannot benefit from equitable tolling to 

revive claims that they could have timely appealed following the Board’s denial.

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SKAAR v. MCDONOUGH 15

A 

The Veterans Court exceeded its jurisdiction when it 

certified a class to include veterans who had not received a 

Board decision and veterans who had not yet filed a claim. 

While the Veterans Court correctly acknowledged that “a 

final Board decision operates as the jurisdictional ‘trigger’ 

that gives [it] the authority to hear a particular appeal,” 

the court held “that because Mr. Skaar, as class representative, ha[d] obtained a final Board decision pursuant 

to [§] 7252, the jurisdictional door ha[d] been opened, and 

[the Veterans Court] may use [its] other authorities, as explained in Monk [], to aggregate Mr. Skaar’s claims with 

those of the remaining class members.” Class Certification, 

32 Vet. App. at 181. This was error. See Weinberger v. Salfi, 

422 U.S. 749, 753 (1975) (“[W]hile [the court] had jurisdiction of the claims of the named appellees under the provisions of 42 U.S.C. § 405(g), it had no jurisdiction over the 

claims asserted on behalf of unnamed class members.”). 

The Veterans Court cannot predicate its jurisdiction 

over the claims of unnamed class members on its jurisdiction over Mr. Skaar’s claim or its power to aggregate claims 

and certify class actions. See Burris v. Wilkie, 888 F.3d 

1352, 1361 (Fed. Cir. 2018) (“[T]he Veterans Court cannot 

invoke equity to expand the scope of its statutory jurisdiction. Indeed, a court cannot write its own jurisdictional 

ticket.” (cleaned up)). Class certification is merely a procedural tool that allows the court to aggregate claims, see 

Wick, 40 F.3d at 1370 (explaining that neither the Veterans 

Court’s scope of review nor its rules of practice and procedure “provide an independent basis for jurisdiction”); it 

does not itself confer on the court jurisdiction to review individual claims it would otherwise lack, Chula Vista City 

School District v. Bennett, 824 F.2d 1573, 1579 (Fed. Cir. 

1987) (“The claim of each member of the class must be examined separately to determine whether it meets the jurisdictional requirement.”). Nor does our decision in Monk, in 

which we held only that the “Veterans Court has the 

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16 SKAAR v. MCDONOUGH

authority to establish a class action mechanism or other 

method of aggregating claims.” 855 F.3d at 1322; id. 

at 1321–22 (declining to decide or address the circumstances in which a class certification would be appropriate). 

Monk does not provide a cognizable basis for circumnavigating the limits of the Veterans Court’s statutory jurisdiction. Cf. Mahaffey v. Sec’y of Health & Hum. Servs., 

368 F.3d 1378, 1381 (Fed. Cir. 2004) (explaining that neither the Court of Federal Claims’ scope of review nor its 

rules of practice and procedure confer authority on a court 

“to enlarge its jurisdiction” (citation omitted)). And the Veterans Court cannot invoke its authority to certify a class 

action in the appeal context unless the court has “jurisdiction over the claim of each individual member of the class.” 

Califano v. Yamasaki, 442 U.S. 682, 701 (1979) (“[C]lass 

relief is consistent with the need for case-by-case adjudication emphasized by the Secretary, at least so long as the 

membership of the class is limited to those who meet the requirements of [the judicial review statute]. Where the district court has jurisdiction over the claim of each individual 

member of the class, Rule 23 provides a procedure by which 

the court may exercise that jurisdiction over the various 

individual claims in a single proceeding.” (emphasis added)

(citation omitted)). 

Here, the Veterans Court has “only one source of jurisdiction: 38 U.S.C. § 7252(a).” Class Certification, 

32 Vet. App. at 180 (citing Henderson v. Shinseki, 562 U.S. 

428, 434 (2011)); see Burris, 888 F.3d at 1357 (“The Veterans Court, as an Article I tribunal, is a creature of statute 

by definition. As such, the court can only act through an 

express grant of authority from Congress.” (citations omitted)). This jurisdictional statute empowers the Veterans 

Court to review decisions of the Board and confers upon the 

court “the power to affirm, modify, or reverse a decision of 

the Board or to remand the matter, as appropriate.” 

38 U.S.C. § 7252(a) (emphasis added). Thus, the Veterans 

Court’s jurisdiction is “premised on and defined by the 

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Board’s decision concerning the matter being appealed,” 

Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998), where

“‘decision’ of the Board, for purposes of the Veterans 

Court’s jurisdiction under [§] 7252, is the decision with respect to the benefit sought by the veteran,” Maggitt v. West, 

202 F.3d 1370, 1376 (Fed. Cir. 2000) (emphasis added). 

This means that “a veteran must first present a request for 

a benefit to the Board, then receive a decision on that request, in order to vest jurisdiction in the Veterans Court to 

consider the veteran’s request and arguments in support 

thereof.” Id. By definition, therefore, a class must be limited to veterans who satisfy the jurisdictional requirements 

of having requested a benefit and of having received a 

Board decision on that request.3 See, e.g., Matthews v. Eldridge, 424 U.S. 319, 328 (1976) (“The nonwaivable element is the requirement that a claim for benefits shall have 

been presented to the Secretary. Absent such a claim there 

can be no ‘decision’ of any type. And some decision by the 

Secretary is clearly required by the statute.”); Salfi, 

422 U.S. at 750, 764 (“The [d]istrict [c]ourt had no 

3 We emphasize that the requirements of having requested a benefit and of having received a Board decision 

on that request are “purely ‘jurisdictional’ in the sense that 

[they] cannot be ‘waived.’” Matthews v. Eldridge, 424 U.S. 

319, 328 (1976). Both the statutory language and the provision’s “placement within the [Veterans’ Judicial Review 

Act]” make clear “that Congress wanted that provision to 

be treated as having jurisdictional attributes,” since § 7252 

“governs [the Veterans Court’s] adjudicatory capacity.” 

Henderson, 562 U.S. at 434–35, 439–40 (comparing § 7252 

with § 7266 and holding that § 7266 is not jurisdictional). 

Thus, in relying on Bowen as a basis for jurisdiction over 

present-future and future-future claimants, see Class Certification, 32 Vet. App. at 184, the Veterans Court erroneously conflated jurisdiction and exhaustion, see Matthews,

424 U.S. at 328.

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18 SKAAR v. MCDONOUGH

jurisdiction over the unnamed members of the class under 

42 U.S.C. [§] 405(g), . . . since the complaint as to such class 

members is deficient in that it contains no allegations that 

they have even filed an application for benefits with the 

Secretary, much less that he has rendered any decision, final or otherwise, review of which is sought.”).

Thus, the Veterans Court exceeds its jurisdiction when 

it certifies a class to include, as it did here, veterans who 

have not yet filed a claim—over whom even the Board 

would not have jurisdiction, see 38 U.S.C. §§ 7104(a) (jurisdiction of the Board to review the Secretary’s final decisions), 511 (decisions of the Secretary)—and veterans who 

have not received a Board decision, see id. § 7252(a). That 

is, the Veterans Court lacked jurisdiction over past, present-future, and future-future claimants, since none of 

these claimants had received a Board decision. Cf. Wick, 

40 F.3d at 370 (“Since it is clear that the action of the Secretary in denying payment to Wick was not a decision of 

the Board, it would seem equally clear that the court lacks 

jurisdiction over Wick’s petition from that denial.”). 

Mr. Skaar argues that the Veterans Court can exercise 

jurisdiction over class members who have not received 

Board decisions because district courts routinely certify 

classes including future claimants. Cross-Appellant’s 

Br. 26–30 (collecting cases). While district courts may indeed exercise jurisdiction over future claimants, that is because Congress explicitly conferred the district courts with 

supplemental jurisdiction encompassing such claims. See 

28 U.S.C. § 1367(a) (“[I]n any civil action of which the district courts have original jurisdiction, the district courts 

shall have supplemental jurisdiction over all other claims 

that are so related to claims in the action within such original jurisdiction that they form part of the same case or 

controversy . . . . Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”); Exxon Mobil Corp. v. Allapattah Servs., 

Inc., 545 U.S. 546, 560 (2005) (explaining that “§ 1367 

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confers supplemental jurisdiction over claims by . . . Rule 

23 plaintiffs,” i.e., members of a class action, over which it 

may lack original jurisdiction as long as it has original jurisdiction over at least one class member’s claim). Critically, Congress has not enacted any comparable 

jurisdictional statute for the Veterans Court. While district 

courts may exercise supplemental jurisdiction over future 

claimants by virtue of their explicit statutory authority, the 

Veterans Court lacks such jurisdictional authority. Each 

court is limited to the jurisdiction bestowed upon it by Congress. Thus, the cases Mr. Skaar cites about the scope of 

district court jurisdiction are inapplicable where, as here, 

the Veterans Court has its own jurisdictional statute. 

We accordingly vacate the Veterans Court’s class certification. Should the court choose to reconsider on remand 

whether class certification is appropriate, the court shall 

exclude past, present-future, and future-future claimants, 

since no such claimants have received a Board decision. 

B 

On cross-appeal, Mr. Skaar contends that the Veterans 

Court should have included past and expired claimants as 

members of the certified class. He challenges the Veterans 

Court’s decision declining to equitably toll the statutory period to appeal for these claimants. According to Mr. Skaar, 

the court misconstrued the legal standard for equitable 

tolling—set out in Bowen—“as creating a categorical rule 

that challenged policies must be ‘secretive’ to grant equitable tolling and waiver of exhaustion,” and then improperly 

applied this rule to the “more claimant-friendly [Veterans’ 

Judicial Review Act].” Cross-Appellant’s Br. 46–47. We disagree.4

4 Although we vacate the class certification for lack 

of jurisdiction, our decision does not bar the Veterans Court 

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20 SKAAR v. MCDONOUGH

To benefit from equitable tolling, a claimant must 

demonstrate “(1) extraordinary circumstance; (2) due diligence; and (3) causation.” Toomer, 783 F.3d at 1238; see 

also Holland v. Florida, 560 U.S. 631, 649 (2010) (requiring 

a petitioner to show “(1) that he has been pursuing his 

rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing”

(cleaned up)). We have made clear that “due diligence must 

be shown in addition to an extraordinary circumstance.” 

Toomer, 793 F.3d at 1238 (cleaned up). We have also

acknowledged, as Mr. Skaar points out, “the need for flexibility,” “for avoiding mechanical rules,” and for “proceed[ing] on a ‘case-by-case basis.’” Id. at 1239; CrossAppellant’s Br. 49. 

Contrary to Mr. Skaar’s contentions, the Veterans 

Court suggested neither that Bowen established a categorical rule restricting equitable tolling to challenges involving “secretive” policies nor that Bowen dictated the court’s 

decision. Indeed, it was Mr. Skaar who had requested that 

the Veterans Court “equate [the agency’s] adjudication of 

Palomares veterans’ claims with the secretive conduct the 

Supreme Court found so reprehensible in [Bowen]” and

from considering again on remand whether class certification is appropriate, provided that the court has jurisdiction 

over each individual member of the proposed class. The 

court could, for example, consider whether certifying a 

class of present claimants is proper. It follows then that our 

decision to vacate the class certification does not moot 

Mr. Skaar’s cross-appeal challenging the class definition. 

Thus, we still must consider whether expired claimants—

the only other subgroup of claimants, besides present 

claimants, that satisfies the jurisdictional requirements 

under 38 U.S.C. § 7252—were improperly excluded from 

the certified class, i.e., whether the court should have tolled 

the appeal period for expired claimants.

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permit equitable tolling for past and expired claimants on 

this basis. Class Certification, 32 Vet. App. at 187. And the 

Veterans Court unambiguously denied this request. The 

court instead identified several examples of the extraordinary circumstances for which waiver may be warranted, 

clarified that these examples do not present “an exhaustive 

list because there are no bright line rules in the equitable 

tolling context,” and reiterated that “the extraordinary circumstances element [of equitable tolling] necessarily requires a case-by-case analysis and not a categorical 

determination.” Id. (alteration in original) (quoting James 

v. White, 917 F.3d 1368, 1373 (Fed. Cir. 2019)). 

Moreover, the Veterans Court observed that Mr. Skaar

had never alleged that past and expired claimants “were 

precluded from timely filing appeals . . . for any reason 

other than [the agency’s] historical practice in adjudicating 

claims from Palomares veterans.” Class Certification, 

32 Vet. App. at 187–89. And, as the court correctly reasoned, it’s hardly surprising that the agency “will always 

(presumably) adjudicate claims in accord with its own interpretation of that law and [the Veterans Court’s] legal 

pronouncements” “before a claimant succeeds in changing 

the law.” Id. at 187. So “there is no principled way to distinguish” these claimants from “any other claimants who 

have been denied benefits, failed to appeal to [the Veterans] Court, and later discovered their benefits denial was 

based on an incorrect reading of the law.” Id. at 187–88.

Thus, the Veterans Court’s analysis does not evince any legal error or misinterpretation of the law surrounding equitable tolling. We conclude that the court did not err in 

declining to equitably toll the appeal period for past and 

expired claimants and thus rightly excluded such claimants from the class.

IV

The Veterans Court’s jurisdictional statute limits its 

authority to certify a class action in the appeal context, and 

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22 SKAAR v. MCDONOUGH

the court must have jurisdiction over the claims of every 

member of a class the court certifies. By certifying a class 

that includes veterans who had not received a Board decision and veterans who had not yet filed a claim, the Veterans Court exceeded its jurisdiction. We vacate the court’s

class certification and remand for further proceedings consistent with this opinion. Because we vacate the class certification, we also limit the application of the merits 

decision to Mr. Skaar’s claim. 

VACATED AND REMANDED

COSTS

No costs.

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