On February 6, 2004, the Deputy Vice Chairman of the Board issued a letter correcting the October 2003 1

denial of reconsideration, which had inadvertently referred to the Board's August 8, 2002, decision as being dated

August 8, 2003. 

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 03-1996

BOBBY R. JONES, APPELLANT,

V.

JAMES B. PEAKE, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided September 19, 2008 )

Mark R. Lippman, of La Jolla, California, was on the pleading for the appellant.

Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Thomas

A. McLaughlin, Special Assistant to the Assistant General Counsel; and Gabrielle L. Clemons

(nonattorney practitioner), all of Washington, D.C., were on the pleading for the appellee.

Before KASOLD, HAGEL, and MOORMAN, Judges.

MOORMAN, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring

opinion.

MOORMAN, Judge: Before the Court is Bobby Jones's appeal of an August 8, 2002,

decision of the Board of Veterans' Appeals (Board) denying entitlement to service connection for

a nervous condition to include schizophrenia and depression. The question presented is whether the

Court has jurisdiction to consider this appeal. On August 27, 2003, the appellant had filed a motion

for Board reconsideration of its decision, which was denied on October 17, 2003. On November

1

10, 2003, the Courtreceived the appellant's Notice of Appeal (NOA). The appellant does not contest

(1) that his August 27, 2003, motion for Board reconsideration was filed more than 120 days after

the August 2002 Board decision was mailed to him; and (2) that his NOA was filed more than
2

120 days following the Board's August 2002 decision. See 38 U.S.C. § 7266(a) (providing that in

order to obtain review by this Court, an appellant "shall file a notice of appeal with the Court within

120 days after the date on which notice of the decision is mailed"). The appellant's contention is that

he was prevented from timely filing his appeal as a result of his mental disorder, and that, therefore,

the 120-day period for filing an appeal with the Court should be tolled. Appellant's Opposition to

Motion to Dismiss filed March 29, 2004, at 1. 

On November 19, 2004, the Court denied the appellant's motion for a limited remand to

allow the Secretary to assist the appellant in his tolling claim and allowed the appellant the

opportunity to submit further evidence to support equitable tolling on the ground of mental

incapacity as authorized under Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004) (Barrett I). Jones

v. Principi, 18 Vet.App. 500 (2004) (per curiam order). The appellant appealed this Court's order

to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which then dismissed the

appeal for lack of jurisdiction. Jones v. Nicholson, 431 F.3d 1353 (Fed. Cir. 2005). Upon remand

to this Court, the appellant stated that he had nothing further to submit, and, on June 9, 2006, this

Court dismissed the appeal for lack of jurisdiction based on the untimely filed NOA. Jones v.

Nicholson, 20 Vet.App. 97 (2006) (per curiam order). The appellant appealed to the Federal Circuit.

While this appeal was pending before the Federal Circuit, the Federal Circuit decided Barrett

v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) (Barrett II), which addressed the obligations of VA in

assisting an appellant with procuring evidence helpful in deciding the appellant's entitlement to

equitable tolling. The Federal Circuit in the instant appeal then vacated this Court's judgment and

remanded the matter for reconsideration in light of Barrett II. Jones v. Nicholson, No. 2006-7307,

2008 WL 1662637 (Fed. Cir. June 6, 2007). Accordingly, this appeal is now again before the Court

for action.

Shortly after this case was remanded to this Court, the U.S. Supreme Court decided Bowles

v. Russell, 127 S. Ct. 2360 (2007), which held that in civil cases statutory time limits for filing an

NOA are jurisdictional in the strict sense and are not subject to equitable tolling. Our Court recently

considered the impact of Bowles on our jurisprudence and held that "for the civil cases arising from

appeals to this Court, there are no equitable exceptions to the 120-day judicial appeal period

established by [38 U.S.C. §] 7266(a)." Henderson v. Peake, 22 Vet.App. 217, 221 (2008). In so
3

holding, this Court first discussed the effect of Bowles on Bailey v. West, 160 F.3d 1360 (Fed. Cir.

1998), which had held that equitable tolling is available for NOAs filed at this Court. The Court

noted that Bowles provided the distinction between statutes of limitation and jurisdictional

requirements not found in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990), and

concluded that "the premise upon which the Federal Circuit in Bailey and its progeny applied Irwin

to the time period established in section 7266(a) can no longer stand." Henderson, 22 Vet. App. at

220. Because the Court had received Mr. Henderson's NOA more than 120 days after the Board

decision was mailed, the Court, pursuant to Bowles, dismissed the untimely NOA for lack of

jurisdiction. Id. at 221. Because of the jurisdictional nature of the time limit for filing an NOA, the

Court could not consider Mr. Henderson's contention that his service-connected disability prevented

him from timely filing his appeal of the Board decision.

Based on binding Supreme Court precedent in Bowles and this Court's interpretation and

application of Bowles in Henderson, the legal landscape for deciding the instant case has changed

since the Federal Circuit's remand in June 2007. Applying Henderson to the facts now before the

Court, the Court must dismiss the appeal for lack of jurisdiction. To obtain appellate review in this

Court, an NOA must be filed with the Court within 120 days after notice of the final Board decision

is mailed to an appellant. See Henderson, 22 Vet.App. at 219. It is well settled that a request for

Board reconsideration that is filed within 120 days after the mailing date of the underlying final

Board decision abates the finality of that decision, permitting an appeal from that decision within

120 days of the decision on the request for reconsideration. See Rosler v. Derwinski, 1 Vet.App.

241, 249 (1991); see also Fagre v. Peake, 22 Vet.App. 188, 190 (2008). Rosler established a

two-prong test: An appeal to the Court is timely if the appellant (1) files a motion for Board

reconsideration within 120 days after the mailing date of the underlying final Board decision and

then (2) files an NOA within 120 days after the Board Chairman has mailed notice of the denial of

the reconsideration motion. Rosler, supra; see Linville v. West, 165 F.3d 1382 (Fed. Cir. 1999)

(applying Rosler, supra, and holding that the finality of the Board decision was abated by the motion

for reconsideration that was postmarked within 120 days of the Board's final decision and that the

running of the appeal period begins anew when the Board disposes of the motion).
4

 In the instant case, the appellant did not file, within 120 days of the mailing of the August 8,

2002, Board decision, either his request for reconsideration of the Board's August 8, 2002, decision

or an NOA to this Court. The appellant argues that his mental disorder prevented him from timely

filing his appeal. The Court, however, is precluded from extending its jurisdiction over this appeal

based on equitable tolling principles. As the Court held in Henderson, "there are no equitable

exceptions to the 120-day judicial appeal period established by section 7266(a)." Henderson,

22 Vet.App. at 221. Although Henderson did not involve a motion for Board reconsideration or the

question of whether equitable tolling may apply to the time limit for filing a motion for

reconsideration, the Court concludes that the holding in Henderson extends to the 120-day period

for timely filing a motion for reconsideration for the purpose of determining this Court's jurisdiction

over an appeal. VA regulations provide that a motion for reconsideration may be filed "at any time,"

38 C.F.R. § 20.1001(b); however, in order to abate the finality of a Board decision and meet the

statutory 120-day appeal requirements of section 7266(a), a claimant must file a motion for

reconsideration within 120 days from the date of the mailing of the final Board decision. See

Linville, 165 F.3d at 1386. The filing of a motion for Board reconsideration outside of the 120-day

period, which begins with the mailing of the final Board decision, would have the effect of extending

the statutory 120-day period for filing an appeal of the Board decision. This would "have the effect

of aggrandizing this Court's jurisdiction beyond its statutorily prescribed boundaries by essentially

eliminating the 120-day period for appealing a Board decision to this Court." Harms v. Nicholson,

20 Vet.App. 238, 245 (2006) (en banc) (dismissing appeal for lack of jurisdiction where appellant

filed a motion to vacate well beyond 120 days after the date stamped on the Board decision), aff'd,

489 F.3d 1377 (Fed. Cir. 2007).

The Court concludes that, for purposes of determining the timeliness for filing appeals and

the exercise of our jurisdiction, the application of equitable tolling principles to the 120-day period

for filing a motion for reconsideration would render meaningless the 120-day statutory period

prescribed by Congress in 38 U.S.C. § 7266(a) for filing appeals here. Consequently, the Court is

precluded from considering the merits of the appellant's contention that he was prevented from

timely filing his appeal as a result of his mental disorder. Accordingly, the Court will dismiss the

untimely NOA for lack of jurisdiction. 
5

Upon consideration of the foregoing, the Secretary's motion to dismiss is granted and this

appeal is DISMISSED for lack of jurisdiction.
6

KASOLD, Judge, concurring: I agree with the majority's determination that the appellant's

equitable tolling claim is foreclosed by Bowles v. Russell, 127 S. Ct. 2360 (2007), and Henderson

v. Peake, 22 Vet.App. 217, 221 (2008). I write separately to note that even in the absence of these

intervening decisions we would not have jurisdiction over this appeal because Mr. Jones has not

demonstrated that his mental disorder prevented him from timely filing it, and I do not believe that

the Secretary has the duty – or that we have the authority to compel the Secretary – to provide a new

medical examination or otherwise create or secure information not under his control to help

Mr. Jones establish this fact, as suggested in Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir.

2006). 

I fully concur with the holding in Barrett that when jurisdiction is in question this Court has

the authority to "compel the government to produce evidence uniquely within its knowledge and

provenance relevant to clarifying jurisdictional issues." Id. at 1045. Thus, in Sthele v. Principi,

19 Vet.App. 11, 13 (2004), this Court ordered the Secretary to provide a detailed description of how

the Board mails its decision, because the date of mailing started the 120-day period in which an

appeal must be filed to be timely. See 38 U.S.C. § 7266. 

However, directing the Secretary to procure and provide information about internal VA

practices that affect the beginning of the judicial appeal period is far different from directing the

Secretary to provide a medical examination to an appellant, or to create or obtain evidence not under

his control, to establish whether a mental disorder prevented an appellant from filing a timely NOA.

Inter alia, the former involves establishing facts that occurred while the matter was under the

Secretary's control. In contrast, the latter involves the creation or verification of facts that occur

wholly outside of the Secretary's control; i.e., mental capacity of an appellant during the 120-period

subsequent to a Board decision, and its effect on an appellant's ability to file an appeal. 

None of the authority cited in Barrett supports the novel proposition that we have authority

to compel the Secretary to provide a jurisdiction-supporting medical examination, or to create or

obtain information outside his control. Indeed, the actions taken by this Court in furtherance of a

determination that it has, or does not have, jurisdiction, as laid out in Barrett, all relate to additional

briefing, hearings, or the submission of evidence within a party's control. Id. at 1043 n.2. 
7

In an adversarial system, the ultimate burden of establishing jurisdiction rests with the

appellant. See McNutt v. G.M.A.C., 298 U.S. 178 (1936); see also Bobbitt v. Principi, 17 Vet.App.

547, 552 (2004) (per curiam) (filing an appeal with the Court "is the first step in an adversarial

process challenging the Secretary's decision on benefits" and is separate and distinct from the VA

administrative process); Sims v. Apfel, 530 U.S. 103, 110 (2000) (noting that "there are wide

differences between administrative agencies and courts."). To the extent the Federal Circuit reads

our cases for the proposition that this burden differs before our Court or that we have authority to

compel the Secretary to provide a jurisdiction-supporting medical examination, or create or obtain

information outside his control, I respectfully disagree.