N OTE : This disposition is nonprecedential.



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

______________________

ELIJAH THOMAS, Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERAN S AFFAIRS, Respondent -Appellee

______________________

2018

- 2389

______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18

- 2063, Judge Mary J. Schoelen.

______________________

Decided: Januar y 1 4 , 2019

______________________

E LIJAH T HOMAS , Shreveport, LA, pro se.

A LEXANDER O RLANDO C ANIZARES , Commercial Litig ation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent

- appellee. Also represented by J OSEPH H. H UNT

, C LAUDIA B URKE

, R OBERT E DWARD K IRSCHMAN

, J R

. ; B RANDON A. J ONAS

, Y. K EN L EE

, Office of General Counsel, United States Department of
Veterans Affairs

, Washington, DC

.

______________________THOMAS v. WILKIE 2

Before P ROST

, Chief Judge, R EYNA and T ARANTO

, Circuit Judges.

P ER C URIAM

. Appellant Elijah Thomas appeals an order of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) dismissing his appeal . The Veterans Court determined
that Mr. Thomas’s appeal was untimely and that equit able tolling of the appeal deadline was unwarranted

. T his

court lacks jurisdiction to review the timeliness of Mr. Thomas’s appeal to the Veterans Court

.
I

Mr. Tho mas served on active duty from March 1971 to
March 1973 . On December 20, 2017, the Board of Vete rans’ Appeals (“Board”) denied Mr. Thomas’s claim for an earlier effective date for service connection for hyperte nsion and his claim for entitlement to compen sation for injuries sustained at a U.S. Department of Veterans Affairs (“ VA ”) facility in 1998. 1

Mr. Thomas filed a notice of appeal of the Board’s d ecision with the Veterans Court on April 24, 2018. B ecause the notice was filed more than 120 days from the presumed date on which the Board mailed its decision to Mr. Thomas, the Secretary of Veterans Affairs moved to dismiss Mr. Thomas’s appeal as untimely. Mr. Thomas, appearing pro se , responded to the S ecretary’ s motion. He explain ed that his chronic back, neck, and shoulder pain prevented him from filing his notice of appeal on time

— that is, by April 19, 2018 . He further explained that he was caring for a long

- time friend, which also contributed

1 The Board also granted Mr. Thomas’s total dis ability individual unemployability (TDIU) claim, granted his special monthly compensation claim, and remanded a service connection claim for a left hip disability.THOMAS v. WILKIE 3

to hi s need to file his notice five days late. W ith his

response , Mr. Thomas included a January 2018 progress note from the Shreveport VA Medical Center, indicating
that he experiences neck and shoulder pain

. After considering the Secretary’s motion and Mr.

T homas’s response, the Veterans Court noted that Mr. Thomas had not provided any additional evidence su pporting his assertion that “he was unable to leave his house during the latter part of the 120 days,” Resp’t

Appellee App. 50, and ordered him to file “a n additional response, along with any supportive documentation
discu ssing whether the circumstances

. . . warrant equ itable tolling,” id. at 51. Accordingly, Mr. Thomas filed another response, including additional medical records.

In July 2018, the Veterans Court granted the Secr etary’s motion to dismiss. Although the c ourt acknow ledged that Mr. Thomas’s medical records reflect right shoulder pain, emergency room treatment, chronic neck pain, and swelling of the bilateral lower extremities, it
ultimatel y concluded that Mr. Thomas f a iled to show that equitable tolling was warranted . Acc ording to the c ourt,

t he argument and evidence of record did not prove that Mr. Thomas’s physical condition prevented him from
tim e ly filing his notice of appeal. On the contrary , the

c ourt found that the evidence showed Mr. Thomas ’s independent mobility

. In August 2018, after denying Mr. Thomas’s motion for reconsideration, the Veterans Court entered judgment

. Mr. Thomas timely appealed to this court.

II

The ability of this court to review Veterans Court decisions is limited by statute. 38 U.S.C. § 7292 ; see Leonard v. Gober , 223 F.3d 1374, 1375 (Fed. Cir. 2000)

. Under the statute, absent a constitutional challenge, this court lacks jurisdiction to review challenges to factualTHOMAS v. WILKIE 4

determinations and to laws or regulations as applied to the facts of a case. 38 U.S.C. § 7292.

On appeal, Mr. Thomas does not appear to present a constitutional challenge. Nor does he appear to challenge the legal standard that the Veterans Cou rt applied. Rather, Mr. Thomas argues factual reasons for why he missed the appeal deadline. Specifically, Mr. Thomas argues, as he did before the Veterans Court, that his medical condition precluded him from timely filing his notice of appeal. The Vete rans Court made factual d eterminations as to Mr. Thomas’s argument and evidence.
It then applied the law to those fact findings and dete rmine d that Mr. Thomas’s untimely appeal should not be subject to equitable tolling.

Because Mr. Thomas’s appeal dea ls only with the
Veteran s Court’s factual determinations and the applic ation of equitable tolling to those facts, we are statutorily prohibited from entertaining the merits of his appeal.
Dixon v. Shinseki , 741 F.3d 1367, 1377 (Fed. Cir. 2014) (“ This court is precluded from reviewing factual determ inations bearing on a vet eran’s equitable tolling claim.” (internal citation omitted) ) ; Leonard , 223 F.3d at 1376 (concluding that this court was barred from considering the veteran’s arguments regarding appl ication of equit able tolling to the facts of her case)

. 2

III

For the for e going reasons, this appeal is dismissed.

2 We acknowledge Mr. Thomas’s motion for leave to supplement the recor d but conclude that the motion is moot because we lack jurisdiction to reach the merits of
this case.THOMAS v. WILKIE 5

DISMISSED

C OSTS

The parties shall bear their own costs.