United States Court of Appeals 

for the Federal Circuit ______________________ 

HARVEST O. TOOMER,

Claimant-Appellant

v.

ROBERT A. MCDONALD, 

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2014-7045

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 09-4086, Chief Judge Bruce E. 

Kasold.

______________________ 

Decided: April 21, 2015

______________________ 

ETHAN LEE, Fenwick & West, LLP, Mountain View, 

CA, argued for claimant-appellant. Also represented by 

LAWRENCE T. KASS, Milbank, Tweed, Hadley & McCloy, 

LLP, New York, NY.

TARA K. HOGAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, 

Washington, DC, argued for respondent-appellee. Also 

represented by LOREN MISHA PREHEIM, STUART F. DELERY,

ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.;

CHRISTA A. SHRIBER, Y. KEN LEE, CHRISTINA LYNN GREGG, 
2 TOOMER v. MCDONALD

Office of General Counsel, United States Department of 

Veterans Affairs, Washington, DC. 

______________________ 

Before REYNA, CLEVENGER, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge WALLACH.

Dissenting opinion filed by Circuit Judge REYNA. 

WALLACH, Circuit Judge.

Appellant Harvest O. Toomer appeals an order of the 

United States Court of Appeals for Veterans Claims 

(“Veterans Court”) dismissing his appeal as untimely 

filed. See Toomer v. Shinseki, No. 09-4086 (Vet. App. 

Sept. 6, 2013) (Appellant’s App. (“App.”) 1–5) (the 

“Order”); see also In re Toomer, No. 05-24 637A (Bd. of 

Veterans Affairs June 2, 2009) (App. 13–20) (the “Board 

Decision”). For the reasons set forth below, this court 

affirms.

BACKGROUND

Mr. Toomer served in the United States Army on 

active duty from August 1971 to August 1974. Mr. 

Toomer sought veterans benefits for degenerative disc 

disease, which he contended was “causally related to an 

in-service back strain from lifting heavy objects in August 

1972.” Board Decision at 4. In September 2004, a 

Regional Office of the United States Department of 

Veterans Affairs (“VA”) denied the claim. 

In 2009, the Board of Veterans’ Appeals (the “Board”) 

also denied the claim because it found Mr. Toomer’s 

injuries were not service-connected. In doing so, the 

Board relied on a 2007 VA examination, finding that 

although Mr. Toomer was treated for a back strain during 

service in August 1972, there was no objective evidence 

from subsequent clinical visits to indicate his current 

back pain was connected to the August 1972 injury; that 
TOOMER v. MCDONALD 3

an August 1972 x-ray was within normal limits (with the 

exception of minimal scoliosis); and that “after January 

1973, there were no further complaints of back pain 

during the remainder of [Mr. Toomer’s] service.” Id. at 6. 

The examiner also reported “given the Veteran’s age and 

potential post-service spine injuries, particularly when 

considering his post-service occupational duties as a 

construction worker, which placed him at risk for spine 

trauma, there was no objective evidence to support his 

claim.” Id. The Board also relied on a subsequent 2009 

VA examination by a specialist who found Mr. Toomer’s 

“current back disabilities were not related to service.” Id.

at 7. According to the Board, the Board Decision was sent 

to Mr. Toomer on June 2, 2009. 

On July 27, 2009, however, Mr. Toomer informed the 

VA by telephone that he had not yet received the Board

Decision. He was informed a decision had already been 

entered and another copy would be mailed to him. On 

August 4, 2009, the VA mailed a cover letter to Mr. 

Toomer with a date-stamp of “AUG 04 2009,” stating:

On June 2, 2009, the [Board] entered a decision in 

your appeal, a copy of which was mailed to your 

most recent address of record at that time. 

However, on July 27, 2009, you informed VA that 

you had not yet received your copy.

I am furnishing you with another copy of the 

Board’s June 2, 2009 decision. 

App. 24 (emphasis added). Along with this letter, the VA 

enclosed: (1) a copy of the VA’s cover letter to Mr. Toomer 

hand-dated “6/02/09,” App. 12; (2) a copy of the Board’s 

June 2, 2009 decision, also hand-dated “6/02/09” with a 

stamped “FILE COPY” over the signature block, App. 13–

20; and a copy of VA Form 4597 (“Form 4597”), which is a 

notice of appellate rights, stating the veteran has “120 

days from the date this decision was mailed to you (as 

shown on the first page of this decision) to file a Notice of 
4 TOOMER v. MCDONALD

Appeal,” App. 21 (emphasis added). On October 28, 2009, 

more than 120 days from the date of the June 2, 2009, 

Board Decision, but within 120 days of the August 4, 

2009, letter, Mr. Toomer filed a notice of appeal with the 

Veterans Court. 

On April 14, 2010, the Veterans Court dismissed Mr. 

Toomer’s appeal as untimely after determining it was 

filed outside the 120-day appeal period established by 38 

U.S.C. § 7266(a) (2006), which the court found to be 

jurisdictional and therefore not subject to equitable 

tolling. Mr. Toomer appealed to this court, which stayed

his appeal pending the United States Supreme Court’s 

decision in Henderson v. Shinseki, 562 U.S. 428 (2011). In 

Henderson, the Court reversed this court, concluding the 

120-day period to file a notice of appeal to the Veterans 

Court is not jurisdictional. Id. at 438. 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 719, 726 (Fed. Cir. 2013); 

Bove v. Shinseki, 25 Vet. App. 136, 139 (2011). In 

Henderson, the Court reversed this court, concluding the 

120-day period to file a notice of appeal to the Veterans 

Court is not jurisdictional and is therefore subject to 

equitable tolling. Id. at 438. Accordingly, on May 25, 

2011, this court granted the VA’s unopposed motion to 

vacate and remand for further adjudication. Toomer v. 

Shinseki (Toomer I), 424 F. App’x 950 (Fed. Cir. 2011)

(unpublished). 

On remand, on January 20, 2012, the Veterans Court 

ordered Mr. Toomer to show cause why his appeal should 

not be dismissed for failure to file within the 120-day 

period. In response, Mr. Toomer argued (1) there was 

“clear evidence” the VA did not mail the Board Decision in 

June 2009 because Mr. Toomer contacted the VA in July 

2009 to inform the VA he had not received it, and the VA 

was “unable to show that the Board decision was properly 

mailed,” App. at 55 (capitalization omitted); (2) the VA’s 
TOOMER v. MCDONALD 5

mailing of an unsigned copy of the Board Decision in 

August violated agency procedures; and (3) in the 

alternative, his filing should have been equitably tolled 

because Mr. Toomer acted with reasonable diligence when 

he contacted the VA regarding the status of his claim 

before expiration of the 120-day period, and because Form 

4597 misled him into believing his notice of appeal could 

be filed within 120 days of the August mailing. In 

response to a separate order, the VA submitted evidence 

that (1) the Board Decision was mailed to Mr. Toomer’s 

last known address on June 2, 2009, and (2) the mailing 

was not returned as undeliverable. 

On March 12, 2012, the Veterans Court again 

dismissed Mr. Toomer’s appeal as untimely filed. Toomer 

v. Shinseki, No. 09-4086, 2012 WL 762844, (Vet. App. 

Mar. 12, 2012) (Appellee’s App. (“Supp. App.”) 1–3). The 

court considered Mr. Toomer’s proffered evidence that the 

VA had not mailed the Board Decision on June 2, 2009, 

but found it did not rise to the level of clear evidence 

necessary to rebut the presumption of regularity. Supp. 

App. 2 (“Although the appellant’s informing a VA 

representative in July that he had not received the 

decision provides some evidence that he did not receive 

the decision in June, it does not constitute clear evidence 

that the decision was not mailed to the proper address in 

June, especially in light of the evidence provided by the 

Secretary, which includes a sworn affidavit that the 

decision was mailed to the appellant’s last known address 

and also to his veterans service representative on the date 

of decision, and computer screenshots of the Board’s 

computerized tracking system noting that a cover letter 

was created on June 1, and the appeal decided on June 

2.”). The court also acknowledged the 120-day period for 

filing a notice of appeal is not jurisdictional, but found Mr. 

Toomer had failed to demonstrate his circumstances were 

extraordinary, and therefore warranting equitable tolling. 
6 TOOMER v. MCDONALD

On a second appeal to this court, the Veterans Court’s 

decision was again vacated and remanded after this court 

found the Veterans Court erred by failing to consider Mr. 

Toomer’s evidence as a whole in deciding whether he 

rebutted the presumption of regularity. Toomer v. 

Shinseki (Toomer II), 524 F. App’x 666, 669 (Fed. Cir. 

2013) (unpublished) (“[T]he Veterans Court must first 

consider the totality of the evidence the veteran presents 

to rebut the presumption, and then, if the Veterans Court 

determines it rises to the level of clear evidence, consider 

if the government has shown by the preponderance of the 

evidence that the challenged action actually occurred.”). 

This court noted Mr. Toomer’s contacting the VA “is 

certainly relevant to the question of whether the VA 

mailed the decision in June,” but “does not . . . alone rise 

to the level of clear evidence of irregularity.” Id. 

However, this court noted the mailing of the second 

courtesy copy of the Board Decision was “at least some 

evidence that [the] first mailing was irregular” and, 

because “[t]he irregularities in the second mailing should 

have been considered when the Veterans Court weighed 

Toomer’s evidence of rebuttal of the presumption of 

regularity,” and because the court “failed to consider 

Toomer’s evidence separately from the [VA’s],” this court 

remanded. Id. at 670. This court declined to reach Mr. 

Toomer’s alternate equitable tolling argument, stating if 

on remand “the Veterans Court concludes that Toomer 

did not overcome the presumption of regularity, then 

Toomer would not be entitled to equitable tolling because 

he cannot show that the government violated its 

procedures with regard to his Board decision.” Id.

On remand, the Veterans Court issued the September 

6, 2013 Order now before this court, again dismissing Mr. 

Toomer’s appeal as untimely. In doing so, the court 

explained “Mr. Toomer has not submitted clear evidence 

of irregularity in the VA’s normal mailing procedures, 

such that he fails to rebut the presumption that his June 
TOOMER v. MCDONALD 7

2, 2009, Board decision was mailed to him on the date of 

issuance.” Order at 2. The court considered Mr. Toomer’s 

rebuttal evidence (i.e., that he informed the VA in July 

2009 that he had not received the Board Decision and the 

VA had mailed him an unsigned, hand-dated Board 

Decision in August 2009), but found his “assertion of 

nonreceipt in July does not alone rise to the level of clear 

evidence.” Id. at 3. In addition, “while Mr. Toomer’s 

August receipt of an unsigned, hand-dated Board decision 

is some evidence that the original decision might not have 

been finalized or mailed on June 2, it does not rise to the 

level of clear evidence of irregularity.” Id. at 3. In sum, 

the court concluded, Mr. Toomer’s evidence amounted to 

“an assertion of nonreceipt that could be the result of 

many factors other than the failure to mail the Board 

decision, including, for example, faulty memory or 

misplacement of delivered mail by a third party.” It also 

found “receipt of an unsigned, hand-dated copy of the 

Board decision . . . sheds little light on whether the 

original Board decision was signed, dated, and mailed 

when issued.” Id.

The Veterans Court took note of this court’s statement 

that equitable tolling could not be demonstrated if Mr. 

Toomer could not rebut the presumption of regularity, but 

stated “this statement presumably was made in the 

context of the arguments presented by Mr. Toomer at the 

Federal Circuit” and “should not [be] viewed as an 

absolute holding in this case or one that bars equitable 

tolling in all cases involving the presumption of regularity 

associated with mailing a Board decision.” Id. at 4. As to 

Mr. Toomer’s assertion that he acted diligently by 

inquiring about the status of his claim, the court agreed 

this reflected some diligence, but “at the same time,” 

when he contacted the VA Mr. Toomer also learned a 

decision had been made on June 2, 2009, a copy of which 

would be sent to him. Id.
8 TOOMER v. MCDONALD

Regarding the copy Mr. Toomer received, the court 

noted the cover letter stated the original Board Decision 

was rendered on June 2, 2009, and this mailing contained 

“another copy.” Id. As to the purportedly misleading 

language of Form 4597, the court said Mr. Toomer’s 

argument reflected a misrepresentation by omission of the 

information on that form, “which not only states, as Mr. 

Toomer notes, that ‘[y]ou have 120 days from the date this 

decision was mailed to you,’ but also states immediately 

thereafter ‘(as shown on the first page of this decision) to 

file a Notice of Appeal with the Court.’ As noted above, 

the date on the first page of the decision received by Mr. 

Toomer in August is ‘6/02/09.’” Id. at 4–5. The court also 

noted Mr. Toomer failed to identify any factor preventing 

him from filing a timely appeal, “such as reliance on the 

incorrect statement of a VA official, a physical or mental 

illness preventing filing, or a timely misfiling at certain 

VA entities, which generally is required to warrant 

equitable tolling.” Id. at 5 (citing Bove, 25 Vet. App. at

140). Therefore, the court concluded, “Mr. Toomer fails to 

demonstrate that he followed [Form 4597], that the 

instructions therein were confusing or misleading, or that 

the totality of his circumstances otherwise demonstrates 

that he was precluded from filing his [notice of appeal] in 

a timely manner.” Id.

In response to the Order, on September 17, 2013, Mr. 

Toomer submitted a Freedom of Information Act (“FOIA”) 

Request to the VA requesting the Board’s procedures 

pertaining to mailing documents to veterans. 

Specifically, Mr. Toomer requested (1) an internal Board 

manual, titled the “Outcode & Dispatch Procedural 

Manual” (“Dispatch Manual”), referenced by the VA in 

Mr. Toomer’s first appeal before the Federal Circuit, and 

(2) all VA “manuals, publications, instructions, or 

documents related to procedures used to send documents 

to veterans.” App. 67. In response, on September 24, 

2013, the VA provided the Dispatch Manual. 
TOOMER v. MCDONALD 9

Mr. Toomer moved for panel review of the Order on 

September 27, 2013, arguing the Veterans Court erred in 

its presumption of regularity and equitable tolling 

analyses. The panel granted the motion, but ordered that 

the original single-judge Order remain the decision of the 

court. Mr. Toomer timely appeals.

DISCUSSION

I. Jurisdiction and Standard of Review

This court’s jurisdiction to review decisions of the 

Veterans Court is limited by statute. Pursuant to 38 

U.S.C. § 7292(a), this court has jurisdiction to review “the 

validity of a decision of the [Veterans] Court on a rule of 

law or of any statute or regulation . . . or any 

interpretation thereof (other than a determination as to a 

factual matter) that was relied on by the [Veterans] Court 

in making the decision.” Except to the extent that a 

constitutional issue is presented, this court may not 

review “a challenge to a factual determination,” or “a 

challenge to a law or regulation as applied to the facts of a 

particular case.” Id. § 7292(d)(2)(A)–(B). The Veterans 

Court’s legal determinations are reviewed de novo. 

Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 

2009).

II. The Veterans Court Properly Found Mr. Toomer Failed 

to Overcome the Presumption of Regularity

Under 38 U.S.C. § 5104(a), “the Secretary [of the VA]

shall, on a timely basis, provide to the claimant (and to 

the claimant’s representative) notice of [its] decision 

[affecting the provision of benefits].” In addition, 38 

U.S.C. § 7104(e)(1) provides: “After reaching a decision on 

a case, the Board shall promptly mail a copy of its written 

decision to the claimant at the last known address of the 

claimant,” as well as to his or her “authorized 

representative,” id. § 7104(e)(2)(A).
10 TOOMER v. MCDONALD

In fulfilling these statutory directives, the Secretary is 

presumed to have properly discharged his official duties 

under the “presumption of regularity.” See Sickels v. 

Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (“The 

presumption of regularity provides that, in the absence of 

clear evidence to the contrary, the court will presume that 

public officers have properly discharged their official 

duties.” (quoting Rizzo v. Shinseki, 580 F.3d 1288, 1292 

(Fed. Cir. 2009)). Thus, the presumption is overcome only 

in the face of “clear evidence to the contrary.” Parks v. 

Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013) (quoting 

Rizzo, 580 F.3d at 1292).

Here, Mr. Toomer does not directly challenge the 

Veterans Court’s finding that he failed to overcome the 

presumption of regularity. Rather, he argues the court 

erred during the panel review phase in failing to find the 

VA breached its duty under Barrett v. Nicholson, 466 F.3d 

1038 (Fed. Cir. 2006), to provide him with available 

jurisdictional evidence that he argues would have aided 

him in rebutting the presumption. This argument was 

first presented in a footnote to his petition for panel 

review. 

In Barrett, this court defined the VA’s duty “in 

developing the record before the Veterans Court on the 

issue of equitable tolling.” Id. at 1041. This court held 

where 

a veteran alleges facts to show entitlement to 

equitable tolling . . . and jurisdiction is called into 

question, . . . the government must assist the court

by providing and, where necessary, procuring 

further evidence helpful in deciding jurisdiction, 

e.g., declarations, new medical examinations, and 

other forms of evidence as appropriate.

Id. at 1044 (emphasis added). The court also clarified 

“[t]he government shall make these submissions on its 

own initiative, upon request of the veteran, or as required 
TOOMER v. MCDONALD 11

by the Veterans Court,” and “[i]f a veteran makes such a 

request, the government may advert to the court for a 

determination that it is reasonably necessary to deciding 

the jurisdictional issues before it.” Id.

Mr. Toomer appears to link the duty identified in 

Barrett to the VA’s alleged failure to respond fully to his 

FOIA request for Board policies regarding the mailing of 

decisions. Mr. Toomer claims he “clearly raised a 

jurisdictional issue” by arguing there was sufficient 

evidence to rebut the presumption the VA mailed the 

Board Decision in June 2009. Appellant’s Br. 19. Mr. 

Toomer points out that once the Veterans Court 

determined he had not shown clear evidence to rebut the 

presumption, he filed his FOIA request, and the VA 

breached its Barrett duty by failing to provide a complete 

response to this request. Thus, Mr. Toomer argues, the 

Veterans Court erred by failing to “address the VA’s 

failure to provide an adequate response” to the FOIA 

request in its decision upon panel review. Appellant’s Br. 

21. For this reason, Mr. Toomer believes a remand is 

necessary for the VA to fully respond to Mr. Toomer’s 

request for jurisdictional evidence.

The government responds that “[w]hether the VA 

complied with its obligation to respond to a FOIA request 

is a matter outside of the Veterans Court’s jurisdiction” 

because review of an agency’s compliance with a FOIA 

request is vested in the district courts by statute. 

Appellee’s Br. 17–18 (citing 5 U.S.C. § 552(a)(4)(B)). And, 

in any event, the VA properly responded to the FOIA 

request; specifically, the government claims, with regard 

to the policy documents related to mailing Board decisions 

to veterans, which are the only “potentially relevant 

jurisdictional evidence in this case,” “an exhaustive search 

for relevant documents . . . revealed only two: (1) the 

Dispatch Manual . . . , and (2) the Board’s ‘Office of 

Management, Planning and Analysis Correspondence 

Guide,’ which was issued in September 2011.” Id. at 18–
12 TOOMER v. MCDONALD

19. The VA therefore insists it properly responded to Mr. 

Toomer’s request because (1) this case arises from events 

that took place in 2009, thus the 2011 document would 

not have assisted Mr. Toomer, and (2) the Dispatch 

Manual was provided to Mr. Toomer on September 24, 

2013. Id. at 19.

To the extent Mr. Toomer challenges the Veterans 

Court’s finding that Mr. Toomer failed to overcome the 

presumption of regularity with clear evidence, there is no 

legal error. As directed in Toomer II, the Veterans Court 

was required to “first consider the totality of the evidence 

the veteran presents to rebut the presumption, and then, 

if the Veterans Court determines it rises to the level of 

clear evidence, consider if the government has shown by 

the preponderance of the evidence that the challenged 

action actually occurred.” Toomer II, 524 F. App’x at 669; 

see also Crain v. Principi, 17 Vet. App. 182, 188 (2003)

(The Veterans Court is “required to make an independent 

determination whether the record contains clear evidence 

of sufficient weight to rebut the presumption of regularity 

and whether the Secretary has presented evidence 

showing that he complied with his mailing obligation 

under the statute or that there was actual receipt.”). The 

Veterans Court properly followed this directive on 

remand.

In particular, the Veterans Court found the fact that 

Mr. Toomer notified the VA in July 2009 that he had not 

received the decision did not alone rise to the level of clear 

evidence of a deficiency in mailing. Order at 3. 

Furthermore, as to Mr. Toomer’s evidence that the Board 

Decision he received in the August 4, 2009 mailing was 

unsigned and hand-dated, the court acknowledged this 

may be “some evidence that the original decision might 

not have been finalized or mailed on June 2,” but “does 

not rise to the level of clear evidence of irregularity,” 

particularly since this was a “file copy” and not the 

original decision. Id. That is, the “receipt of an unsigned, 
TOOMER v. MCDONALD 13

hand-dated copy of the Board decision . . . sheds little 

light on whether the original Board decision was signed, 

dated, and mailed when issued.” Id. In sum, the court 

concluded, “[t]ogether, Mr. Toomer’s evidence, accepted on 

its face, shows only that he does not recall receiving the 

original Board decision, and that he later was provided a 

copy of the Board decision that was unsigned and hand 

dated.” Id. There is no discernable legal error in this 

analysis. Indeed, the Veterans Court followed the 

analysis prescribed for it in Toomer II. To the extent Mr. 

Toomer challenges the Veterans Court’s factual findings 

and the weight of the proffered evidence, this court lacks 

jurisdiction to reexamine such findings.1 See 38 U.S.C. 

§ 7292(d)(2).

1 The dissent states “the material facts in this case 

are not in dispute” and “review [of equitable tolling] 

would not involve improper reweighing of facts and is 

properly within the powers of this court.” Dissent at 3. To 

the contrary, Mr. Toomer and the Government disagree 

about whether the original Board Decision was sent; if 

Mr. Toomer received the original Board Decision; whether 

the allotted time to appeal was “greatly reduced,” id., and 

whether the VA communication was “confusing,” id. at 7. 

As noted above, under 38 U.S.C. § 7292(d)(2), this court 

lacks jurisdiction to reexamine such findings, and 

certainly to make its own factual findings that conflict 

with those reached by the Veterans Court. Thus, under 

§ 7292(d)(2), we are barred from finding “Mr. Toomer was 

misled by the muddled, conflicting official statements by 

the government.” Dissent at 5. 

The dissent also states, “I take no issue with the 

imposition of the presumption of regularity.” Id. at 4 n.1. 

However, the finding that Mr. Toomer failed to rebut the 

presumption of regularity necessitates the finding that 

the original Board Decision was properly sent to Mr. 

Toomer on June 2, 2009. 

 
14 TOOMER v. MCDONALD

Mr. Toomer’s assertions regarding the VA’s duty 

under Barrett do not disturb this conclusion. The issue is 

whether the Veterans Court erred by failing to address in 

its order granting Mr. Toomer’s motion for panel review 

his assertion that the government failed to comply fully 

with an expansive FOIA request made by him after the 

court had rendered its jurisdictional decision. See App. 67 

(“[W]e request that you send: 1. Board of Veterans’ 

Appeals, Outcode & Dispatch Procedural Manual, dated 

June 29, 2007 or the latest edition (including all 

attachments). 2. Any other [VA] manuals, publications, 

instructions, or document related to procedures used to 

send documents to veterans.”) (emphasis added). 

The government’s duty under Barrett is to “assist the 

court by providing and, where necessary, procuring further 

evidence helpful in deciding jurisdiction, e.g., 

declarations, new medical examinations, and other forms 

of evidence as appropriate.” Barrett, 466 F.3d at 1044 

(emphases added). Such information shall be provided 

“on [the government’s] own initiative, upon request of the 

veteran, or as required by the Veterans Court.” Id. Thus, 

the duty concerns the development of the record before 

the Veterans Court, and not outside FOIA requests made 

by the Veteran for information not pertinent to the 

equitable tolling issue. Mr. Toomer has also made no 

showing that the court found further evidence was 

“necessary,” or that the government withheld any 

information relevant to the jurisdictional issue. Indeed, 

the government provided the requested information that 

was applicable to Mr. Toomer’s claim of procedural 

irregularity. The Veterans Court’s failure to take up the 

issue of the government’s response to Mr. Toomer’s FOIA 

request in granting Mr. Toomer’s motion for panel review 

was not legally erroneous.
TOOMER v. MCDONALD 15

III. There Was No Legal Error in the Veterans Court’s 

Equitable Tolling Analysis

Because the 120-day deadline to file a notice of appeal 

is not jurisdictional, Henderson, 562 U.S. 428, a court may 

excuse a late filing under the doctrine of equitable tolling. 

Here, having found the presumption of regularity applies, 

the Board Decision is presumed to have been mailed on 

June 2, 2009, and therefore Mr. Toomer’s appeal was 

untimely filed unless the deadline is equitably tolled.

In Holland, the United States Supreme Court 

reiterated the requirements for equitable tolling it had 

previously set forth in Pace: a petitioner must show “‘(1) 

that he has been pursuing his rights diligently, and (2) 

that some extraordinary circumstance stood in his way’ 

and prevented timely filing.” Holland v. Florida, 560 U.S. 

631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 

408, 418 (2005)) (emphasis added); see also Lozano v. 

Montoya Alvarez, 134 S. Ct. 1224, 1231–32 (2014) (“As a 

general matter, equitable tolling pauses the running of, or 

‘tolls,’ a statute of limitations when a litigant has pursued 

his rights diligently but some extraordinary circumstance

prevents him from bringing a timely action.”) (emphasis 

added). Thus, this court has made clear that “to benefit 

from equitable tolling, . . . a claimant [must] demonstrate 

three elements: (1) extraordinary circumstance; (2) due 

diligence; and (3) causation.” Checo v. Shinseki, 748 F.3d 

1373, 1378 (Fed. Cir. 2014). That is, due diligence must 

be shown “[i]n addition to an extraordinary 

circumstance.” Id.

Mr. Toomer contends the Veterans Court applied an 

incorrect standard for equitable tolling. In support, Mr. 

Toomer argues “[t]he test for equitable tolling has two 

parts. First, the court must determine whether the 

veteran has exercised due diligence. And if so, the court 

must ask whether the circumstances precluded a timely 

filing.” Appellant’s Br. 10–11. As to the first part, Mr. 
16 TOOMER v. MCDONALD

Toomer contends the court erred in conducting its “due 

diligence” inquiry, arguing the standard is “relaxed” and 

requires the court to ask “whether a reasonably diligent 

veteran would have missed the 120-day deadline in like 

circumstances.” Id. at 11, 8 (citing Nelson v. Nicholson, 

489 F.3d 1380, 1382 (Fed. Cir. 2007); Jaquay v. Principi, 

304 F.3d 1276, 1287 (Fed. Cir. 2002) (en banc)). To Mr. 

Toomer, under this relaxed standard, “a reasonably 

diligent pro se veteran is permitted to make mistakes in 

following the instructions [on Form 4597] to appeal his 

claim.” Id. at 12.

As to the second part of the analysis, Mr. Toomer 

contends, in contrast to governing law, there is no 

requirement that the “circumstances” preventing timely 

filing be “extraordinary,” arguing there are other 

circumstances that may justify untimely filing. 

Appellant’s Br. 10–11; Reply 5 (“‘Extraordinary 

circumstances’ is but one of the categories in which the 

courts have found equitable tolling appropriate in 

veterans cases.”). Thus, Appellant insists “there is no 

requirement for Mr. Toomer to establish that his

circumstances were ‘extraordinary.’” Reply 6. 

In addition, Mr. Toomer argues the Veterans Court 

failed to recognize that misleading actions by the VA may 

justify equitable tolling. Specifically, Mr. Toomer argues 

he was misled by the August 4, 2009 mailing into missing 

the 120-day deadline by the multiple, conflicting dates in 

the documents the VA sent to him (i.e., June 2, 2009 and 

August 4, 2009). Mr. Toomer also argues he was misled 

by Form 4597, which stated “You have 120 days from the 

date this decision was mailed to you (as shown on the first 

page of the decision).” Appellant’s Br. 15 (internal 

citation and quotation marks omitted). He further 

contends the Veterans Court “improperly limited” “its 

circumstances analysis to the three enumerated 

circumstances in Bove.” Id. at 8, 14 (citing Bove, 25 Vet. 

App. at 140 (stating equitable tolling is “applied only 
TOOMER v. MCDONALD 17

when circumstances precluded a timely filing despite the 

exercise of due diligence, such as (1) a mental illness 

rendering one incapable of handling one’s own affairs or 

other extraordinary circumstances beyond one’s control, 

(2) reliance on the incorrect statement of a VA official, or 

(3) a misfiling at the regional office or the Board”)). In 

support, Mr. Toomer cites this court’s cases explaining the 

Veterans Court errs when it limits “extraordinary 

circumstances” to certain listed examples from past cases. 

Id. at 17 (citing Sneed, 737 F.3d at 726). 

While Mr. Toomer may have been somewhat diligent 

in pursuing his rights, as the Veterans Court found, he 

failed “to identify any factor preventing him from filing a 

timely [notice of appeal], such as reliance on the incorrect 

statement of a VA official, a physical or mental illness 

preventing filing, or a timely misfiling at certain VA 

entities.” Order at 5 (citing Bove, 25 Vet. App. at 140) 

(emphasis added). Without a showing of an 

“extraordinary circumstance,” Mr. Toomer’s claim cannot 

be equitably tolled. See Sneed, 737 F.3d at 725 (“‘[A] 

litigant seeking equitable tolling bears the burden of 

establishing two elements: (1) that he has been pursuing 

his rights diligently, and (2) that some extraordinary 

circumstance stood in his way.’” (quoting Pace, 544 U.S. at 

418)). Indeed, this court has made clear that due 

diligence must be shown “[i]n addition to an extraordinary 

circumstance.” Checo, 748 F.3d at 1378. Thus, Mr. 

Toomer’s assertion that he “does not need to show 

‘extraordinary’ circumstances,” Reply 5, is belied by the 

Supreme Court’s and this court’s case law, which make 

clear that both “due diligence” and “extraordinary 

circumstances” are required elements for equitable 

tolling. See Lozano, 134 S. Ct. at 1231–32; Holland, 560 

U.S. at 649; Pace, 544 U.S. at 418; Checo, 748 F.3d at 

1378; Sneed, 737 F.3d at 726. 

Mr. Toomer is correct, however, that equitable tolling 

is not “limited to a small and closed set of factual 
18 TOOMER v. MCDONALD

patterns.” Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed. 

Cir. 2005). This court has “rejected the approach of 

looking to whether a particular case falls within the facts 

specifically identified in . . . one of our prior cases.” Id.; 

see also Sneed, 737 F.3d at 726 (holding “the Veterans 

Court improperly treated the listed examples—including 

reliance on the incorrect statement of a VA official—as 

the exclusive ‘parameters’ of equitable tolling”). Rather, 

we have acknowledged “the need for flexibility” and “for 

avoiding mechanical rules,” and have proceeded on a 

“case-by-case basis.” Holland, 560 U.S. at 631 (internal 

quotation marks and citation omitted).

Here, however, the Veterans Court did not commit 

legal error by focusing too narrowly on whether Mr. 

Toomer’s case conformed to a particular fact pattern; 

rather, it properly considered whether, in this case, Mr. 

Toomer’s claim that he was misled by a VA document

constitutes an extraordinary circumstance. The Veterans 

Court found it did not. In particular, the court found the 

August 4, 2009 cover letter stated the original Board 

Decision was rendered on June 2, 2009, and this mailing 

contained “another copy.” Order at 4. As to the 

purportedly misleading language of Form 4597, the court 

noted that Mr. Toomer’s argument reflected a 

misrepresentation by omission of the information on that 

form, “which not only states, as Mr. Toomer notes, that 

‘[y]ou have 120 days from the date this decision was 

mailed to you,’ but also states immediately thereafter ‘(as 

shown on the first page of this decision)’” and “the date on 

the first page of the decision received by Mr. Toomer in 

August is ‘6/02/09.’” Id. at 4–5. Therefore, the court 

concluded, “Mr. Toomer fails to demonstrate that he 

followed [Form 4597], that the instructions therein were

confusing or misleading, or that the totality of his 

circumstances otherwise demonstrates that he was

precluded from filing his [notice of appeal] in a timely 

manner.” Id. at 5. The court only cited to Bove to provide 
TOOMER v. MCDONALD 19

examples of extraordinary circumstances, not to 

determine whether Mr. Toomer’s circumstances 

conformed to a prescribed list of “extraordinary 

circumstances.” See Order at 5. 

Thus, the Veterans Court’s analysis does not evince 

any legal error or misinterpretation of the law 

surrounding equitable tolling. To the extent Mr. Toomer

asks this court to review the Veterans Court’s factual 

findings surrounding whether or not the filings were 

misleading or confusing, this is of course outside our 

jurisdiction. See Singleton v. Shinseki, 659 F.3d 1332, 

1334 (Fed. Cir. 2011). Thus, even if this court disagreed 

with the Veterans Court’s factual finding that the two 

dates on the correspondence from the VA were not 

confusing or misleading, and therefore did not rise to the 

level of “extraordinary circumstance,” revisiting this 

finding is beyond our jurisdiction. Indeed, this court may 

not review “a challenge to a factual determination” or “a 

challenge to a law or regulation as applied to the facts of a 

particular case” unless a constitutional challenge is 

presented. 38 U.S.C. § 7292(d)(2).

CONCLUSION

For the foregoing reasons, the Veterans Court’s 

decision is

AFFIRMED
United States Court of Appeals 

for the Federal Circuit ______________________ 

HARVEST O. TOOMER,

Claimant-Appellant

v.

ROBERT A. MCDONALD, 

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2014-7045

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 09-4086, Chief Judge Bruce E. 

Kasold.

______________________ 

REYNA, Circuit Judge, dissenting.

The majority concludes that equitable tolling does not 

apply in Mr. Toomer’s case primarily because the equitable tolling analysis requires us to impermissibly reweigh 

factual findings made by the Board of Veterans’ Appeals 

(“Board”). I respectfully dissent. 

I. EQUITABLE TOLLING IS A LEGAL QUESTION WHERE 

MATERIAL FACTS ARE UNDISPUTED

When reviewing decisions of the United States Court 

of Appeals for Veterans Claims (“Veterans Court”), we are 

statutorily constrained from considering pure questions of 
2 TOOMER v. MCDONALD

fact, or the application of law to fact. 38 U.S.C. 

§ 7292(d)(2).

A well-recognized exception to this rule exists in the 

context of equitable tolling. In Bailey v. Principi, we held 

that when the material facts are not in dispute and the 

adoption of a particular legal standard of review, such as 

the rule preventing our review of questions of fact or the 

application of law to fact, would dictate the result, “this 

court has treated the question of the availability of equitable tolling as a matter of law that we are authorized by 

statute to address.” 351 F.3d 1381, 1384 (Fed. Cir. 2003) 

(emphasis added); accord Bradenburg v. Principi, 371 

F.3d 1362, 1363 (Fed. Cir. 2004); Wood v. Peake, 520 F.3d 

1345, 1349 (Fed. Cir. 2008).

The material facts in this case are not in dispute. The 

Board issued a decision in Mr. Toomer’s case on June 2, 

2009, but that decision was not received by Mr. Toomer. 

Mr. Toomer called the Department of Veterans Affairs 

(“VA”) to inquire about the status of his case, informing 

the VA that he had not received a decision. Prompted by 

that call, the VA mailed a package to Mr. Toomer that 

included a cover letter, a copy of the Board’s decision, and 

a notice of appellate rights. The cover letter was machine 

stamped with the date of August 4, 2009. The copy of the 

Board’s decision, however, had an informally-styled date 

(“6/02/09”) handwritten at an angle on its first page. The 

notice of appellate rights set forth standard boilerplate 

instructions, stating, “You have 120 days from the date 

this decision was mailed to you (as shown on the first 

page of this decision) to file a Notice of Appeal with the 

Court.” J.A. 21 (emphasis added). At the time the VA 

mailed the copy of the decision to Mr. Toomer, 72 of the 

120 days provided in 38 U.S.C. § 7266(a) to file an appeal 

had elapsed. Mr. Toomer filed his notice of appeal on 

October 28, 2009, 85 days after the VA mailed the copy of 

the Board’s decision to him and, thus, within 120 days of 
TOOMER v. MCDONALD 3

the date on the first page of the package containing the 

copy of the decision, August 4, 2009. 

Because there are no material facts in dispute in this 

case, the question of equitable tolling is one we can, and 

here must, review. See Bailey, 351 F.3d 1384. Such 

review would not involve improper reweighing of facts 

and is properly within the powers of this court. 

II. THE GOVERNMENT’S CONFUSING STATEMENTS 

JUSTIFY EQUITABLE TOLLING

As the majority recognizes, a veteran seeking to invoke equitable tolling must establish both diligence in 

pursuing his rights and extraordinary circumstances 

standing in his way. Sneed v. Shinseki, 737 F.3d 719, 725 

(Fed. Cir. 2013). The majority does not suggest that Mr. 

Toomer did not meet the diligence prong of equitable 

tolling. See Maj. Op. at 16. As such, all that remains is a 

showing of exceptional circumstances before equitable 

tolling may be properly applied. Numerous facts point to 

the existence of exceptional circumstances in Mr. Toomer’s case. 

A. The Allotted Time To Appeal Was Greatly Reduced

Mr. Toomer received a copy of the Board’s decision after more than half of the filing period had elapsed. The 

accompanying notice of appellate rights explained that he 

would have 120 days from the date “this decision” was 

mailed to him to file his appeal. J.A. 21. The rules permit 120 days to appeal. A legally unsophisticated veteran 

may require a significant amount of time, as much as the 

entire 120 days, to consider the decision, research the law, 

evaluate the merits of an appeal, and prepare and file the 

notice of appeal. To the extent Congress deems that the 

entire statutorily-provided period as necessary for all of 

these steps, cutting that time by more than half, as the 

majority does here, casts doubt on the sufficiency of the 

resultant filing period. The majority does not state why 
4 TOOMER v. MCDONALD

the shortened period should be deemed sufficient for this 

particular veteran. 

There is no evidence that Mr. Toomer was less than 

diligent, as he filed his appeal 85 days after the copy of 

the decision was mailed to him, well within the otherwise 

applicable 120-day period. Where a claimant acts with 

diligence to do everything that could reasonably be expected of him, and the untimely filing is beyond his control, the untimely filing should not bar the claim. Herring 

v. Merit Sys. Prot. Bd., 778 F.3d 1011, 1016-18 (Fed. Cir. 

2015) (reversing dismissal of appeal for untimely filing 

where claimant relied on misleading statements made by 

her counsel). Such diligence suggests that but for his 

confusion as to the date his appeal was due, generated by 

the government, Mr. Toomer would have timely filed his 

appeal. 

B. The VA’s Communication With

Mr. Toomer Was Confusing

Despite sending a personalized letter to Mr. Toomer, 

the VA neglected to inform him that the filing period ran 

from the date of the supposed mailing of the first decision, 

which Mr. Toomer never received. In the personalized 

letter, the VA acknowledged it was sending the copy of 

the decision in response to Mr. Toomer informing the 

agency that he did not receive the original decision.1 J.A. 

24. The letter contained highly specific information, 

1 I take no issue with the imposition of the presumption of regularity. This case is not about whether 

the VA actually mailed the initial decision, as it claims, 

but rather about two separate communications that, on 

their faces, provide conflicting, confusing information to 

Mr. Toomer regarding his right to appeal. To the extent 

the majority asserts the presumption of regularity forecloses consideration of equitable tolling, I dissent.

 
TOOMER v. MCDONALD 5

including the precise date on which Mr. Toomer requested 

the original decision from the VA. Id. This letter was 

accompanied by the boilerplate language in the notice of 

appellate rights, indicating the filing period would begin 

to run on the date “this decision” was mailed to Mr. 

Toomer. In spite of the VA’s personalized communication, 

it failed to alert Mr. Toomer that the start of the running 

of the filing period was unaffected by his non-receipt of 

the original decision. This error was compounded by the

VA’s failure to explain that “this decision” actually referred to the previously mailed decision. 

Mr. Toomer was misled by the muddled, conflicting official statements by the government, wherein two dates 

from which to appeal were communicated to him. The 

inconsistent language in the notice of appellate rights 

could easily confuse a fastidious lawyer. In this case, the 

government’s inconsistent statements confused a lay 

veteran, Mr. Toomer. The resulting confusion was of the 

government’s making and, as such, should not be held 

against an otherwise diligent, involved veteran.

C. The Majority Constrains Equitable Tolling 

To A Closed Set Of Factual Patterns

This court has rejected the “suggestion that equitable 

tolling is limited to a small and closed set of factual 

patterns and that equitable tolling is precluded if a veteran’s case does not fall within those patterns.” Mapu v. 

Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005). We have 

highlighted the need to be flexible in our inquiry, and to 

analyze each case individually. Sneed, 737 F.3d at 726 

(quoting Holland v. Florida, 560 U.S. 631, 649-50 (2010)). 

The majority suggests it remains mindful not to limit 

equitable tolling to a small, closed set of factual patterns, 

Maj. Op. at 17, but by declining to apply analogous precedent, it does just that. 

In Bailey v. West, we held that equitable tolling is appropriate when a veteran’s untimely filing results from 
6 TOOMER v. MCDONALD

the government’s own misleading statements. 160 F.3d 

1360 (Fed. Cir. 1998). A Veterans Benefits Counselor at 

the regional office (“RO”) misrepresented to the veteran 

that timely filing a notice of appeal at the RO was sufficient to initiate the veteran’s appeal. Id. at 1361. Relying 

on the government’s statement, the veteran timely filed a 

notice of appeal at the RO, though that notice was not 

forwarded to the Veterans Court within the filing period. 

The VA notified the veteran that timely filing a notice of 

appeal at the RO does not protect his right of appeal. Id. 

at 1362. The veteran then filed an untimely notice of 

appeal with the Veterans Court. The Veterans Court 

dismissed the appeal for lack of jurisdiction on account of 

the untimely filing of the notice of appeal. Id.

The veteran in Bailey appealed the dismissal to this 

court. In analyzing whether equitable tolling applied, we 

explained that the veteran “was misled by the conduct of 

his adversary [the government] into allowing the filing 

deadline to pass” even though there was “no suggestion of 

misconduct” by the government. Id. at 1365. We concluded that the government’s misleading statements that 

caused the veteran to miss the filing deadline were sufficient to equitably toll the deadline, even absent evidence 

of any intent to mislead. Id. 

Just as in Bailey, the government’s misleading statements in this case, made without intent to mislead, are 

sufficient to justify equitably tolling the 120-day filing 

period. Mr. Toomer asserts that he relied on the machinestamped date on the cover letter because he believed the 

cover letter was part of the decision itself. His belief is 

not unreasonable given that the cover letter and the 

decision came in a packet together, and that the date on 

the cover letter bears an official appearance while the 

handwritten date does not. Using either date from which 

to calculate the filing deadline is reasonable in this case. 

The instructions in the notice of appellate rights could 

easily mislead Mr. Toomer to believe his filing period 
TOOMER v. MCDONALD 7

ended later than it actually did. While there is no evidence of intent by the government to mislead Mr. Toomer, 

the official, confusing instructions in the notice of appellate rights did exactly that. As a result, Mr. Toomer filed 

his notice of appeal 85 days after he received the copy of 

the Board’s decision. His filing occurred inside the 120-

day period beginning on the date the copy was mailed, but 

outside the 120-day window beginning on the date of the 

supposed first mailing. 

By refusing to apply equitable tolling on the facts of 

Mr. Toomer’s case, the majority narrowly circumscribes 

Bailey, limiting that decision’s reach to only affirmative 

misstatements by the government. Bailey teaches that 

misleading statements by the government support equitably tolling the period for appealing to the Veterans 

Court, even absent intent by the government to mislead 

the veteran. In any event, I believe that an application of 

the flexible, case-by-case analysis espoused, but not 

utilized, by the majority leads to the conclusion that the 

filing deadline should have been equitably tolled. 

D. This Decision Will Produce Undesirable Results

Finally, the majority’s refusal to apply equitable tolling here will lead to absurd results in other cases. Suppose the initial mailing of the Board’s decision never 

arrives and the veteran contacts the VA after the 120-day 

filing period elapses. Even if the veteran filed an appeal 

on the day the Board’s decision was received, a mechanical application of 38 U.S.C. § 7266(a) would lead to a 

dismissal of that appeal. Under the majority’s opinion, 

equitable tolling would not apply because even in this 

scenario, the veteran would not be able to show exceptional circumstances. In short, the veteran would be left 

with no recourse at all. This cannot be the appropriate 

result given the remedial nature of veterans law.

The government’s misleading communications and 

the lapsing of more than half the filing period before the 
8 TOOMER v. MCDONALD

veteran received the Board’s decision clearly illustrate the 

existence of extraordinary circumstances in this case. 

Because the majority declines to equitably toll the filing 

statute, I respectfully dissent.