NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

EMILIO T. PALOMER,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2015-7082

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 14-1017, Chief Judge Bruce E. 

Kasold, Judge Mary J. Schoelen, Judge William S. Greenberg.

______________________ 

Decided: April 26, 2016

______________________ 

ANGELA K. DRAKE, The Veterans Clinic at the University of Missouri School of Law, Columbia, MO, argued for 

claimant-appellant.

 

TARA K. HOGAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
2 PALOMER v. MCDONALD

SCOTT D. AUSTIN, ALEXANDER V. SVERDLOV; DAVID J.

BARRANS, CHRISTINA LYNN GREGG, Office of General 

Counsel, United States Department of Veterans Affairs, 

Washington, DC. 

______________________ 

Before LOURIE, BRYSON, and DYK, Circuit Judges.

BRYSON, Circuit Judge.

Emilio T. Palomer appeals from a decision of the 

Court of Appeals for Veterans Claims (“the Veterans 

Court”). The Veterans Court dismissed, on timeliness 

grounds, Mr. Palomer’s appeal from a decision by the 

Board of Veterans’ Appeals that denied Mr. Palomer a 

payment from the Filipino Veterans Equity Compensation 

Fund (“FVECF”). We affirm.

I 

The FVECF was established in 2009. It provides for a 

one-time payment to individuals who served in specific 

military organizations that aided the United States 

Armed Forces in the Philippines during World War II.

Shortly after the FVECF was established, Mr. Palomer, a resident of the Philippines, filed a claim for a 

payment from the fund. A regional office of the Department of Veterans Affairs (“DVA”) sought to confirm Mr. 

Palomer’s service in a qualifying organization by contacting the National Archive’s National Personnel Records 

Center (“NPRC”). The NPRC responded that it had no 

record of Mr. Palomer’s service in any of the organizations 

recognized by the FVECF. For the next four years, the 

regional office repeatedly attempted to confirm Mr. Palomer’s service by submitting variations of both his name 

and service number. All of those attempts proved fruitless, and Mr. Palomer’s service in a qualifying organization was never confirmed.
PALOMER v. MCDONALD 3

After the regional office denied Mr. Palomer’s request 

for benefits, he appealed to the Board. On July 10, 2013, 

the Board issued an opinion finding that Mr. Palomer did 

not have the requisite service in any of the organizations 

recognized by the FVECF. The Board’s opinion was 

mailed to Mr. Palomer on the day it issued. The opinion 

was accompanied by a copy of VA Form 4597 entitled 

“Your rights to appeal our decision.” That form includes 

the statement “How long do I have to start my appeal to 

the Court? You have 120 days from the date this decision 

was mailed to you.”1 

On November 20, 2013, 133 days after the Board’s 

opinion was issued and mailed, Mr. Palomer mailed a 

one-page letter to the Board stating: “I would like to file 

an appeal with regards to your decision denying my 

personal claim to the one time settlement payment from 

the Filipino Veterans Equity Compensation Fund.” The 

letter expressed Mr. Palomer’s desire to provide “oral 

narration and testimony” to prove that he served during 

World War II as a guerilla. The Board received that 

document on December 4, 2013.

The Board treated Mr. Palomer’s November 20 letter 

as a request for reconsideration of its earlier decision, and 

on December 26, 2013, the Board denied the request. On 

March 18, 2014, Mr. Palomer mailed a notice of appeal to

the Veterans Court, which docketed the appeal on April 7, 

2014.

 

1 A section of Form 4597 entitled “How do I file a 

motion for reconsideration” states: “Remember, the Board 

places no time limit on filing a motion for reconsideration, 

and you can do this at any time. However, if you also 

plan to appeal this decision to the Court, you must file 

your motion within 120 days from the date of this decision.”
4 PALOMER v. MCDONALD

The DVA moved to dismiss Mr. Palomer’s appeal on 

the ground that that his motion for reconsideration was

not filed within 120 days of the date that the Board’s 

original decision was mailed to him, and therefore his 

subsequent appeal to the Veterans Court was untimely 

under 38 U.S.C. § 7266(a). That statute provides that “a 

person adversely affected by [a Board] decision shall file a 

notice of appeal with the Court within 120 days after the 

date on which notice of the decision is mailed.” A motion 

for reconsideration filed with the Board tolls the period 

for filing a notice of appeal to the Veterans Court, but 

only if the motion for reconsideration is filed within 120 

days of the Board’s original decision. See Rosler v. Derwinski, 1 Vet. App. 241, 245 (1991).

The Veterans Court dismissed Mr. Palomer’s appeal 

as untimely. The court held that Mr. Palomer had not 

shown that he was entitled to equitable tolling of the 120-

day appeal period, either because of the delay caused by 

international mail service in his receipt of the Board’s 

decision; because of his age and physical condition; or 

because of the allegedly confusing instructions regarding 

the 120-day deadline for filing a notice of appeal. 

II

Mr. Palomer argues that the Veterans Court committed legal error by not invoking equitable tolling to excuse 

his failure to meet the statutory 120-day appeal period.2

 

2 Although the government argues that this court 

lacks jurisdiction to decide the equitable tolling issue 

under 38 U.S.C. § 7292, we have held that when the 

material facts are not in dispute and the adoption of a 

particular legal standard would dictate the outcome of the 

equitable tolling claim, the question of the availability of 

equitable tolling is a matter of law that we are authorized 

by statute to address. Sneed v. McDonald, No. 15-7069, 
PALOMER v. MCDONALD 5

Following the decision of the Supreme Court in Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 431 

(2011), which held that the 120-day period for appeals to 

the Veterans Court is not jurisdictional, this court has

treated that filing period as subject to equitable tolling. 

See, e.g., Checo v. Shinseki, 748 F.3d 1373, 1380 (Fed. Cir. 

2014); Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir.

2013). To prove entitlement to equitable tolling, however, 

a claimant must bear the burden of establishing “(1) that 

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

some extraordinary circumstance stood in his way and 

prevented timely filing.” Sneed v. McDonald, No. 15-

7069, at 6; Toomer v. McDonald, 783 F.3d 1229, 1238 

(Fed. Cir. 2015); Checo, 748 F.3d at 1378.

Mr. Palomer contends that he satisfies that test because he pursued his rights diligently and because he was 

presented with two extraordinary circumstances: (1) the 

time it took the Board’s opinion to reach him in the Philippines and (2) his physical condition, which required him 

to obtain assistance in filing papers with the DVA and the 

Veterans Court. Mr. Palomer also argues that the equitable purposes underlying the FVECF should factor into 

the equitable tolling analysis. 

 

at 5 (Fed. Cir. Apr. 22, 2016); Bailey v. Principi, 314 F.3d 

1293, 1298 (Fed. Cir. 2003). There is no material dispute 

of fact in this case, and the outcome of the case turns on 

the legal question whether Mr. Palomer’s foreign residence, his age and physical condition, or the policies 

underlying the FVECF require that the 120-day appeal 

period be equitably tolled. We therefore have jurisdiction 

over the principal issues in the appeal. To the extent that 

some issues raised by Mr. Palomer involve factual questions, we lack jurisdiction to resolve those issues, as noted 

below. 
6 PALOMER v. MCDONALD

A 

Mr. Palomer contends that the time it took for the 

Board’s opinion to reach his residence in the Philippines 

represents an extraordinary circumstance that warrants 

equitable tolling. According to Mr. Palomer, he “does not 

enjoy the reliability of postal communications that domestic U.S. veterans do” and “is subject to a considerably 

longer wait in order to send and receive communications 

through the mail.” Mr. Palomer argues that in addressing this issue the Veterans Court in effect imposed upon 

him a shorter filing period than the statutorily mandated 

120 days.

Although there is no direct evidence of how long it 

took the Board’s opinion to reach him, Mr. Palomer contends it took 14 days for the opinion to reach him, which 

we accept for purposes of this proceeding. He asserts that 

the 120-day period for filing an appeal or a request for

reconsideration should therefore be tolled by 14 days. 

Tolling the appeal period by that amount would mean 

that his request for reconsideration would be considered

to have been received on the 119th day, not on the 133rd 

day. For the reasons give below, however, tolling is not 

applicable here.

Mr. Palomer also argues that the Veterans Court

erred in determining that the mailing time delay could 

have been overcome with diligence. According to Mr. 

Palomer, “[i]t should have been irrelevant to the Veterans 

Court’s evaluation of diligence that [he] could have filed 

his motion within a shortened appeal period of 106 days.”3 

Mr. Palomer asserts that “any diligence on [his] part 

 

3 The 106-day number represents the 120-day limit 

of 38 U.S.C. § 7266(a) minus the 14 days of mailing time 

for which Mr. Palomer argues the statute should be tolled.
PALOMER v. MCDONALD 7

could not have overcome the delay necessitated by his 

living conditions.” 

Mr. Palomer argues that the statutory 120-day limitation is premised on mail timelines within the United 

States, and that the longer period of time that it takes for 

mail to reach a claimant outside the United States constitutes an extraordinary circumstance.

The text and background of section 7266 clearly show

that Congress took into account the time it takes for mail 

to be delivered and made specific provisions for it. In 

1994, Congress amended section 7266(a) to provide that a 

veteran’s notice of appeal is considered timely filed if it is 

postmarked within 120 days after the date of the decision 

being appealed. Congress recognized that the 120-day 

period “provides those who live closer to Washington, 

D.C., where the Court is located, more actual time to 

perfect their appeals than those living greater distances 

from the Court.” S. Rep. No. 103-232, at 5 (1994). Congress was therefore aware that “a claimant in a state 

distant from Washington, D.C. . . . would receive notice of 

a [Board] decision after a claimant in a state near Washington, D.C.” Id. at 6. Despite that awareness, and 

despite changing the statute in other respects, Congress 

left in place the provision requiring that a notice of appeal 

be filed within 120 days from the date the decision is 

mailed. 

It is clear that Congress understood that no one would 

have the full 120 days to appeal, and that veterans closer 

to Washington, D.C., would have more time to perfect 

their appeals than those living farther away, for whom 

mail delivery take longer. We therefore reject Mr. Palomer’s argument that the Veterans Court erred because it 

required “compliance with a shorter filing period than the 

statutorily-mandated 120 days.” 

Mr. Palomer argues that Congress did not contemplate that the filing deadline in section 7266(a) would 
8 PALOMER v. MCDONALD

apply to international claimants, and that delays in the 

international mail system cause international claimants 

to have less time to file their notices of appeal than Congress intended to allow. Mr. Palomer points out that the 

statute references the U.S. Postal Service (and not foreign 

postal services) and that references to “states” in the 

legislative history of the 1994 amendment to section 7266 

suggest that Congress did not have international locations in mind.

The legislative history, however, is to the contrary. 

The Senate Report on the 1994 amendment to section 

7266(a) contains an extensive discussion of what constitutes “delivery,” including a statement that delivery 

would be established by “postmarks that are not United 

States Postal Service postmarks.” S. Rep. No. 103-232, at 

7. That reference makes clear that Congress was cognizant of the fact that in some instances the statutory 

deadlines would be applied to veterans living abroad.

Mr. Palomer’s argument, if accepted, would have the 

effect of redrafting section 7266(a) for those claimants 

residing outside of areas served by the U.S. Postal Service. For those claimants, the appeal period would not 

begin to run until the time the Board’s opinion was received. For claimants residing within the area served by 

the Postal Service, the clock would start at the time the 

opinion was mailed. There is no basis in the statutory 

language or legislative background to infer that Congress 

intended to draw such a distinction.

That is not to say that a mailing delay could never be 

an exceptional circumstance justifying equitable tolling. 

If a mailing delay resulted in a claimant receiving notice 

of the Board’s opinion after the appeal period had already 

run, or nearly expired, equitable tolling might well be 

available. But the rule Mr. Palomer seeks—to create a 

“receipt” requirement for claimants residing outside the 

United States—would effectively rewrite the statute and 
PALOMER v. MCDONALD 9

would not be limited in its effect to truly extraordinary 

circumstances. 

The 120-day period for filing a notice of appeal is intentionally generous, particularly in light of the fact that 

a notice of appeal is a very simple document. Congress 

clearly contemplated that the claimant would have less 

than the full 120 days to file his notice of appeal because 

of the time lost to delivery. Congress also understood that 

the period to appeal would vary somewhat between veterans, depending on the mail delivery time in each case. In 

light of those facts, the loss of a few days from the 120-day 

period due to the vagaries of mailing times is not an 

“extraordinary circumstance” that would warrant equitable tolling for every claimant residing outside the United 

States. 

The Veterans Court looked to the specific facts of Mr. 

Palomer’s case and determined that he had failed to show 

“that the time for mail to be delivered between the U.S. 

and the Philippines rises to the level of an extraordinary 

circumstance warranting equitable tolling.” The 14-day

mailing period left Mr. Palomer with 106 days within 

which to file his notice of appeal (or request for reconsideration). The Veterans Court noted that after the denial 

of his request for reconsideration, Mr. Palomar was able 

to file his notice of appeal within 102 days and that he 

was able to respond to the Secretary’s motion to dismiss 

his appeal within 38 days from the date the motion was 

filed. Moreover, the court noted, Mr. Palomer failed to 

assert or show that he had an inadequate amount of time 

to consider his options and timely mail his request for 

reconsideration. The Veterans Court therefore concluded 

that this is not a case in which mailing delays disabled 

the claimant from meeting the applicable statutory dead-
10 PALOMER v. MCDONALD

lines.4 To the extent that Mr. Palomer challenges the 

Veterans Court’s analysis of the specific facts of this case, 

and in particular whether Mr. Palomer failed to show that 

he had insufficient time to file his request for reconsideration, he raises a factual matter that falls outside this 

court’s jurisdiction. See 38 U.S.C. § 7292(d)(2). 

B 

Mr. Palomer next argues that his age and physical 

condition constitute an exceptional circumstance warranting equitable tolling. He asserts that his circumstances 

are like those of the claimant in Barrett v. Principi, 363 

F.3d 1316, 1319 (Fed. Cir. 2004), where the court found 

that equitable tolling was appropriate for a claimant who 

suffered from mental illness. He claims that he is “incapable of handling his own affairs” and needed assistance 

in preparing his request for reconsideration and appeal.

This court has held that “equitable tolling based on 

physical illness is appropriate.” Arbas, 403 F.3d at 1381. 

The question in such instances is whether “the particular 

infirmity of the veteran prevented him from engaging in 

‘rational thought or deliberate decision making’ or rendered him ‘incapable of handling [his] own affairs or 

 

4 Mr. Palomer compares his circumstances to those 

of the veteran in Checo. We do not find that contention 

persuasive. In Checo, the veteran became homeless due 

to circumstances beyond her control and did not receive a 

copy of the Board’s decision until 91 days after it had 

issued. In this case, Mr. Palomer does not allege that he 

suffered any external obstacle other than the 14-day 

period required for the delivery of the mail in the Philippines, and he admits he received the Board’s decision 

when he still had 88 percent of the statutory time period 

for filing a notice of appeal (or a request for reconsideration to be followed by a notice of appeal).
PALOMER v. MCDONALD 11

unable to function [in] society.’” Id.; see also Barrett v. 

Principi, 363 F.3d at 1321 (applying the same standard to 

mental illness). As an exemplary list of such physical 

illnesses that might “impair cognitive function or the 

ability to communicate,” Arbas lists a sufficiently incapacitating stroke; “severe head trauma”; “a heart attack”; and 

other cases in which “one may retain full consciousness 

but still be unable to speak or communicate effectively, as 

may be the case for those in extreme pain or who have 

been immobilized.” Id.

The Veterans Court found that “other than vague assertions of physical infirmity, Mr. Palomer offers no 

evidence demonstrating that his physical condition rendered him incapable of handling his affairs.” The court

considered his statements concerning his health and his 

awareness of the requirements for appeal of the Board’s 

decision.5 With respect to this issue, the government 

correctly notes that Mr. Palomer is simply asking this 

court to reach a different conclusion as to a factual matter 

addressed by the Veterans Court, a task that is outside 

the scope of our limited jurisdiction in reviewing decisions 

of the Veterans Court. See 38 U.S.C. § 7292(d)(2). 

C 

Finally, Mr. Palomer argues that equitable tolling 

should be applied because his claim arises under the 

Filipino Veterans Equity Compensation Act. According to 

Mr. Palomer, that Act “is equitable by its very nature,” 

and is “a result of extraordinary circumstances in our 

nation’s veterans benefits history,” which “should factor in 

to the extraordinary circumstances analysis.” 

 

5 As in Toomer v. McDonald, 783 F.3d 1229, 1239 

(Fed. Cir. 2015), the Veterans Court’s factual findings 

concerning the veteran’s understanding of Form 4597 are 

outside this Court’s limited jurisdiction.
12 PALOMER v. MCDONALD

Congress directed the DVA to administer the FVECF

in accordance with title 38 of the United States Code 

unless otherwise provided. American Recovery and 

Reinvestment Act of 2009, Pub. L. 111-5, § 102(j), 123 

Stat. 115, 200 (2009). Congress was plainly aware that 

many FVECF claimants would share Mr. Palomer’s 

circumstances. The FVECF is specifically directed at 

those who aided U.S. forces in the Philippines during 

World War II and makes specific provision for native 

residents of the Philippines. Congress would unquestionably understand that by 2009, veterans who had served in 

World War II would be advanced in age. Despite that

awareness, however, Congress did not alter the provisions 

of 38 U.S.C. § 7266(a) for FVECF applicants. We therefore decline to hold that the equitable purpose underlying 

the FVECF constitutes an extraordinary circumstance 

justifying equitable tolling of the time limitations in 

section 7266(a). 

No costs. 

AFFIRMED