N OTE : This disposition is nonprecedential. 

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

______________________
LAWRENCE S. CIOFFI, Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2016

- 1612

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 15

- 1885, Judge Margaret C. Bartley.

______________________

Dec ided: June 13, 2016

______________________

L AWRENCE S. C IOFFI , Danbury, CT, pro se.

M OLLIE L ENORE F INNAN , Commercial Litigation Branch, United States Department of Justice, Washin gton, DC

, for respondent

- appellee. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN
, J R ., S COTT D. A USTIN ; B RIAN D. G RIFFIN , D EREK S CADDEN , Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.CIOFFI v. MCDONALD 2

______________________

Before P ROST
, Chief Judge, B RYSON and S TOLL
, Circuit Judges.

P ER C URIAM

. Lawrence S. Cioffi appeals the decision of the Court of Appeals for Veteran s Claims (“the Veterans Court”) dismissing as untimely his appeal of a decision of the Board of Veterans’ Appeals (“Board ”)

. For the following

reasons, we dismiss for lack of jurisdiction.

B ACKGROUND On May 11, 2015, Mr. Cioffi filed a notice of appeal with the Veterans Court, challenging a May 29, 2014 decision by the Board denying his claim for increased disability benefits. The Secretary of Veterans Affairs filed a motion to dismiss, arguing that the notice of appeal was filed more than 120 days after the Board’s decision and thus was untimely. The Veterans Court then ordered Mr. Cioffi to show cause why the appeal should not be di smissed as untimely.
On August 17, 20 15, Mr. Cioffi responded to the show cause order with a letter from his primary care physician at the Department of Veterans Affairs and sworn affid avits from himself and his wife. Mr. Cioffi explained that, at the time that he received the Board’s decisi on, he was having recurring seizures due to service

- connected Meniere’ s disease . He stated that because of his seizures, he misinterpreted the time to appeal the Board decision

— he erroneously relied on the one

- year deadline to cha llenge an agency decision to the Board instead of the 120

- day deadline to appeal from the Board to the Veterans Court.
His physician confirmed that Mr. Cioffi suffered “a ttacks of Meniere’s disease including imbalance, stagge r-CIOFFI v. MCDONALD 3

ing, and vertigo,” and further stated that “his seizures were increasingly interrupting his daily routine and living activities affect ing his normal functions.” J.A. 9. Mrs. Cioffi, who was Mr. Cioffi’s caregiver, also stated in her affidavit that she “assisted processing [Mr. Cioffi ’s] paper work during his recurring periods of incapacity,” although she stressed that she is “neither [a] veteran[’s] repr esentative nor veteran[’s] advocate.” J.A. 11. Mrs. Cioffi reiterated that she and her husband incorrectly interpre ted the appeal d eadline to be one year.
On December 18, 2015, the Veterans Court dismissed Mr. Cioffi’s appeal as untimely. The Veterans Court concluded that Mr. Cioffi was not entitled to equitable tolling of the 120

- day appeal period because he had not established tha t his physical impairments constituted extraordinary circum stances, as required for equitable tolling to apply. Mr. Cioffi now timely appeals to us.

D ISCUSSION

Our jurisdiction to review decisions of the Veterans Court is limited by statute. Pursuant to 38 U.S.C. § 7292(a), we have jurisdiction to review “the validity of a decision of the [Veterans] Court on a rule of law or o f any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relie d on by the [Veterans] Court in making the decision.” Except to the extent that a constitutional is sue is raised , this court may not review “a challenge to a factual determination,” or “a challenge to a law or regul ation as applied to the facts of a particular case.” Id. § 7292(d)(2)(A )- (B).
Pursuant to 38 U.S.C. § 7266(a), a notice of appeal must be filed within 120 days of the date of the Board decision. This deadline is not jurisdictional, however, and thus the Veterans Court may excuse a late filin g under the doctrine of equitable tolling. Henderson v. Shinseki

, 562 U.S. 428, 431, 438

– 42 (2011).CIOFFI v. MCDONALD 4

We have explained that to benefit from equitable tol ling, “ a claim ant must demonstrate three elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation.” Toomer v. McDonald , 783 F.3d 1229, 1238 (Fed. Cir. 2015) (internal quotation marks and alteration omitted). Where a claimant relies on physical disability to show an “extraordinary circumstance,” we have d irected the Veterans Court to “ focus on whether the pa rticular infirmity of the veteran prevented him from

engag ing in ‘ rational thought or deliberate decision ma king’ or rendered him ‘ incapable of handlin g [his] own affairs or unable to function [in] society. ’ ” Arbas v. Nicholson , 403 F.3d 1379, 1381 (Fed. Cir. 2005) (quoting Barrett v. Principi , 363 F.3d 1316, 1321 (Fed. Cir. 2004) ).
On appeal, Mr. Cioffi argues that the Veterans Court acted in a manner that was “arbitrary, capricious, [and/or an] abuse of discretion in failing to apply equitable tolling for ext raordinary circumstances.” Pet’r’s Br. 1. In parti cular, Mr. Cioffi contends that equitable tolling is warran ted because his physical disabilit y prevented him from completing the required paperwork and thus, his wife, who is neither an attorney nor a Veterans Service Repr esentative, was required to assume that responsibility . He also argues that instead of taking into account all of his symptoms

— including de afness, head noise/tinnitus,

n ystagmus , migraines, tremors, imbalance and others

— the Veterans Court focused exclusively on his seizures in determining that Mr. Cioffi had not shown that his phys ical disability “rendered him incapable of handli ng his own affairs for the entire appeal period.” J.A. 2.
Mr. Cioffi’s challenge is thus to the Veterans Court’s application of the equitable tolling standard to the facts of his case. However, we have consistently held that we have no jurisdiction over such cases. See Leonard v. Gober

, 223 F.3d 1374, 1376 (Fed. Cir. 2000) (finding lack of jurisdiction “to con sider [Petitioner’ s] arguments r egarding application of equitable tolling to the facts of herCIOFFI v. MCDONALD 5

case”); Dixon v. Sh inseki

, 741 F.3d 1367, 1377 (Fed. Cir. 2014) (“This court is precluded from reviewing factual determinations bear ing on a veteran’ s equita ble tolling claim.” (internal citation omitted) ).

Mr. Cioffi also contends that the Veterans Court i mproperly relied on the standard espoused in Barrett

, which involved a claimant with a mental illness, to d etermine whether a physical illness constitutes an extraordinary circumstance . However, we have previously stated that the Barrett standard applies to both mental an d physical disability. Arbas , 403 F.3d at 1381. Thus, Mr. Cioffi’s argument appears to be that the Veterans Court erred in analogizing the facts of his case with those in Barrett to find that equitable tolling did not apply. This again is a challenge to the Veterans Court’s application of the equitable tolling standard to facts and thus does not provide a basis for our jurisdiction.

Because Mr. Cioffi does not argue that the decision of the Veterans Court involved the validity or interpretation of the e quitable tolling standard and instead only pr ovides factual evidence for why he missed the 120

- day deadline, we lack jurisdiction to hear his appeal.
For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.

DISMISSED

C OSTS
Each party shall bear their own costs.