NOTE: This disposition is nonprecedential.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.

______________________ 

Decided: June 13, 2016

______________________ 

LAWRENCE S. CIOFFI, Danbury, CT, pro se.

MOLLIE LENORE FINNAN, Commercial Litigation 

Branch, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.

AUSTIN; BRIAN D. GRIFFIN, DEREK SCADDEN, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC.
2 CIOFFI v. MCDONALD

______________________ 

Before PROST, Chief Judge, BRYSON and STOLL, Circuit 

Judges.

PER CURIAM. 

Lawrence S. Cioffi appeals the decision of the Court of 

Appeals for Veterans 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. 

BACKGROUND

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 dismissed as untimely. 

On August 17, 2015, Mr. Cioffi responded to the show 

cause order with a letter from his primary care physician 

at the Department of Veterans Affairs and sworn affidavits from himself and his wife. Mr. Cioffi explained that, 

at the time that he received the Board’s decision, 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 challenge 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 “attacks of Meniere’s disease including imbalance, stagger-
CIOFFI v. MCDONALD 3

ing, and vertigo,” and further stated that “his seizures 

were increasingly interrupting his daily routine and living 

activities affecting 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] representative nor veteran[’s] advocate.” J.A. 11. Mrs. Cioffi 

reiterated that she and her husband incorrectly interpreted the appeal deadline 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 that his physical impairments constituted 

extraordinary circumstances, as required for equitable 

tolling to apply. Mr. Cioffi now timely appeals to us. 

DISCUSSION

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 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 raised, 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). 

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 filing under 

the doctrine of equitable tolling. Henderson v. Shinseki, 

562 U.S. 428, 431, 438–42 (2011).
4 CIOFFI v. MCDONALD

We have explained that to benefit from equitable tolling, “a claimant 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 directed the Veterans Court to “focus on 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 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 extraordinary circumstances.” Pet’r’s Br. 1. In particular, Mr. Cioffi contends that equitable tolling is warranted because his physical disability prevented him from 

completing the required paperwork and thus, his wife, 

who is neither an attorney nor a Veterans Service Representative, was required to assume that responsibility. He 

also argues that instead of taking into account all of his 

symptoms—including deafness, head noise/tinnitus, 

nystagmus, migraines, tremors, imbalance and others—

the Veterans Court focused exclusively on his seizures in 

determining that Mr. Cioffi had not shown that his physical disability “rendered him incapable of handling 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 consider [Petitioner’s] arguments regarding application of equitable tolling to the facts of her 
CIOFFI v. MCDONALD 5

case”); Dixon v. Shinseki, 741 F.3d 1367, 1377 (Fed. Cir.

2014) (“This court is precluded from reviewing factual 

determinations bearing on a veteran’s equitable tolling 

claim.” (internal citation omitted)). 

Mr. Cioffi also contends that the Veterans Court improperly relied on the standard espoused in Barrett, 

which involved a claimant with a mental illness, to determine whether a physical illness constitutes an extraordinary circumstance. However, we have previously stated 

that the Barrett standard applies to both mental and 

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 equitable tolling standard and instead only provides 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

COSTS

Each party shall bear their own costs.