United States Court of Appeals 

for the Federal Circuit ______________________

ADOLFO R. ARELLANO,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2020-1073

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 18-3908, Judge Michael P. Allen.

______________________

Decided: June 17, 2021

______________________

JAMES R. BARNEY, Finnegan, Henderson, Farabow, 

Garrett & Dunner, LLP, Washington, DC, argued for 

claimant-appellant. Also represented by ALEXANDER 

EDISON HARDING, KELLY HORN. 

 BARBARA E. THOMAS, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, argued for respondent-appellee. Also represented by BRIAN 

M. BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY, JR.,

ANDREW JAMES HUNTER; CHRISTINA LYNN GREGG, Y. KEN 

LEE, Office of General Counsel, United States Department 

of Veterans Affairs, Washington, DC.

Case: 20-1073 Document: 96 Page: 1 Filed: 06/17/2021
2 ARELLANO v. MCDONOUGH

MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe 

LLP, Washington, DC, for amicus curiae Military-Veterans 

Advocacy Inc. Also represented by ANNE SAVIN; JOHN B.

WELLS, Law Office of John B. Wells, Slidell, LA. 

JILLIAN BERNER, UIC John Marshall Law School Veterans Legal Clinic, Chicago, IL, for amicus curiae National 

Law School Veterans Clinic Consortium. 

LIAM JAMES MONTGOMERY, Williams & Connolly LLP,

Washington, DC, for amici curiae National Organization of 

Veterans' Advo-cates, Inc., National Veterans Legal 

Services Program. Also represented by DEBMALLO 

SHAYON GHOSH, ANNA JOHNS HROM; BRIAN WOLFMAN, 

Georgetown Law Appellate Courts Immersion Clinic, 

Washington, DC. 

HANNAH LAUREN BEDARD, Kirkland & Ellis LLP, 

Washington, DC, for amicus curiae Charles J. Raybine. 

Also represented by WILLIAM H. BURGESS. 

PAUL WRIGHT, Marietta, SC, as amicus curiae, pro se.

 ______________________ 

Before MOORE, Chief Judge*, NEWMAN, LOURIE, DYK,

PROST**, O’MALLEY, REYNA, WALLACH***, TARANTO, CHEN,

HUGHES, and STOLL, Circuit Judges. 

Opinion for the court filed PER CURIAM. 

* Chief Judge Kimberly A. Moore assumed the position

of Chief Judge on May 22, 2021.

** Circuit Judge Sharon Prost vacated the position of 

Chief Judge on May 21, 2021. *** Circuit Judge Evan J. Wallach assumed senior status 

on May 31, 2021.

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ARELLANO v. MCDONOUGH 3

Concurring opinion filed by CHEN, Circuit Judge, in which

MOORE, Chief Judge, and LOURIE, PROST, TARANTO, and

HUGHES, Circuit Judges, join.

Concurring opinion filed by DYK, Circuit Judge, in which

NEWMAN, O’MALLEY, REYNA, WALLACH, and STOLL, Circuit 

Judges, join.

PER CURIAM.

Upon consideration en banc, a unanimous court holds 

that equitable tolling is not available to afford Mr. Arellano 

an effective date earlier than the date his application for 

benefits was received.

The court is equally divided as to the reasons for its 

decision and as to the availability of equitable tolling with 

respect to 38 U.S.C. § 5110(b)(1) in other circumstances. 

The effect of our decision is to leave in place our prior decision, Andrews v. Principi, 351 F.3d 1134 (Fed. Cir. 2003),

which held that principles of equitable tolling are not applicable to the time period in 38 U.S.C. § 5110(b)(1). 

Accordingly, the judgment of the United States Court 

of Appeals for Veterans Claims is affirmed.

AFFIRMED

COSTS

No costs.

Case: 20-1073 Document: 96 Page: 3 Filed: 06/17/2021
United States Court of Appeals 

for the Federal Circuit ______________________

ADOLFO R. ARELLANO,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2020-1073

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 18-3908, Judge Michael P. Allen.

______________________

Decided: June 17, 2021

______________________

CHEN, Circuit Judge, with whom MOORE, Chief Judge, and 

LOURIE, PROST, TARANTO, and HUGHES, Circuit Judges, 

join, concurring in the judgment.

By statute, the “effective date of an award” of disability 

compensation to a veteran “shall not be earlier than the 

date” the veteran’s “application” for such compensation is 

received by the Department of Veterans Affairs (VA). 

38 U.S.C. § 5110(a)(1). Section 5110(b)(1), however, provides an exception that permits an earlier effective date if

the VA receives the application within one year of the veteran’s discharge from military service: under such 

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2 ARELLANO v. MCDONOUGH

circumstances, the effective date of the award shall date

back to “the day following the date of the veteran’s discharge or release.” Id. § 5110(b)(1). This case poses the 

question of whether, under an equitable-tolling theory, an 

award on an application received more than one year after

the veteran’s discharge date may still be accorded an effective date of the day after discharge. Specifically, we consider whether the rebuttable presumption of equitable 

tolling for statutes of limitations established in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), applies to

the one-year period in § 5110(b)(1). 

This question arises from Adolfo R. Arellano’s appeal 

from a decision of the Court of Appeals for Veterans Claims 

(Veterans Court) denying him an effective date earlier than 

the date his disability benefits application was received by 

the VA. Though Mr. Arellano filed his application more 

than 30 years after he was discharged from the Navy, he 

argues that § 5110(b)(1)’s one-year period should be equitably tolled in his case to afford his award an earlier effective date (and his compensation an earlier starting date) 

reaching back to the day after his discharge from service.

Mr. Arellano also urges us to overrule our prior decision in Andrews v. Principi, which held that § 5110(b)(1) is 

not a statute of limitations amenable to equitable tolling 

but merely establishes an effective date for the payment of 

benefits, thereby categorically foreclosing equitable tolling 

under this provision. 351 F.3d 1134, 1137–38 (Fed. Cir. 

2003). Because this court sitting en banc is equally divided 

on this issue, our decision today does not alter our precedent that § 5110(b)(1) is not a statute of limitations to 

which Irwin’s presumption of equitable tolling applies. Accordingly, the Veterans Court’s decision, which relies on 

Andrews to deny Mr. Arellano an earlier effective date under § 5110(b)(1), is affirmed. 

Judge Dyk and five of our colleagues, however, would 

overturn Andrews and conclude that § 5110(b)(1) is a 

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ARELLANO v. MCDONOUGH 3

statute of limitations entitled to Irwin’s presumption. But 

their basis for affirming the Veterans Court’s decision rests 

on deciding, in the first instance, that the facts of Mr. Arellano’s case do not warrant equitable tolling. We disagree 

with this approach both in substance and process. Even if

Irwin’s presumption were to somehow apply here, it would 

be rebutted by the statutory text of § 5110, which evinces

clear intent from Congress to foreclose equitable tolling of 

§ 5110(b)(1)’s one-year period. Moreover, it is not our role 

as an appellate court to decide whether Mr. Arellano’s factual circumstances warrant equitable tolling where no 

prior tribunal has considered the issue and no party has 

argued for such an outcome. 

BACKGROUND

A

Congress has provided by statute for the payment of 

monetary benefits to veterans with disabilities arising 

from service. 38 U.S.C. § 1110. To obtain disability compensation, veterans must first file a claim with the VA. 

38 U.S.C. § 5101(a)(1). With certain limited exceptions not 

relevant here, no compensation may be paid before such a 

claim is filed. Id. (with exceptions not applicable here, a 

“claim . . . must be filed in order for benefits to be paid or 

furnished to any individual under the laws administered 

by the Secretary”). The size of a veteran’s disability compensation award is determined, in part, by the effective 

date assigned to his award—i.e., the date on which benefits 

begin to accrue. An earlier effective date means a greater 

accrual of benefits. 

Section 5110 of Title 38 governs the effective date of VA 

benefits awards. Two of its provisions are at issue in this 

appeal. First, § 5110(a)(1) sets forth the default rule that 

the effective date of an award cannot be earlier than the 

date the VA receives the veteran’s application submitting 

a claim for that award:

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4 ARELLANO v. MCDONOUGH

Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of 

compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with 

the facts found, but shall not be earlier than the 

date of receipt of application therefor.

§ 5110(a)(1).1 Accordingly, the natural consequence of 

§ 5110(a)(1)’s default rule is that no disability compensation is payable for periods predating the VA’s receipt of the 

application for benefits, “[u]nless specifically provided otherwise” by statute. 

Section 5110 sets forth several exceptions to 

§ 5110(a)(1)’s default rule, each providing for a retroactive 

effective date—that is, an effective date earlier than the 

date VA received the application—which, in turn, leads to 

a greater benefits award than under the default rule. See

§ 5110(b)–(n). Many of § 5110’s exceptions pertain to specific circumstances that may delay the filing of an application for benefits. These include: discharge from the 

military, § 5110(b)(1); increase in the severity of a disability, § 5110(b)(3); the “permanent[] and total[] disab[ility]” 

of a veteran, § 5110(b)(4); death of a spouse, § 5110(d); and 

correction of military records, § 5110(i). Each of § 5110’s 

enumerated exceptions, however, expressly limits the retroactivity of the effective date to one year. See, e.g., 

1 No party has identified a material difference, for 

present purposes, between “claim” and “application,” and 

the VA’s regulations appear to use these terms interchangeably. See, e.g., 38 C.F.R. § 3.1(p) (defining “claim” 

as “a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by 

the [VA] submitted on an application form prescribed by 

the Secretary”). 

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ARELLANO v. MCDONOUGH 5

§ 5110(g) (“In no event shall [an] award or increase [under 

this paragraph] be retroactive for more than one year from 

the date of application therefor . . . .”). 

As relevant here, one of those enumerated exceptions—

§ 5110(b)(1)—provides that a disability compensation 

award’s effective date may date back to the day after a veteran’s discharge if the application for such benefits is received within one year after discharge:

The effective date of an award of disability compensation to a veteran shall be the day following the 

date of the veteran’s discharge or release if application therefor is received within one year from 

such date of discharge or release.

§ 5110(b)(1). 

On the face of the statute, then, the effective date for 

awards based on applications received more than one year 

after discharge (that do not otherwise fall within any of 

§ 5110’s other enumerated exceptions) “shall not be earlier 

than the date of receipt of application therefor.” 

§ 5110(a)(1). This appeal considers whether equitable tolling may apply to § 5110(b)(1)’s one-year period to permit

an effective date reaching back to the day after the veteran’s discharge from service, even though the application 

for that award was received more than one year after discharge. 

The equitable-tolling doctrine, as traditionally understood, “permits a court to pause a statutory time limit 

‘when a litigant has pursued his rights diligently but some 

extraordinary circumstance prevents him from bringing a 

timely action.’” See Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., 

Inc., 137 S. Ct. 2042, 2050 (2017) (quoting Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)) . Such “extraordinary 

circumstances” include “where the claimant has actively 

pursued his judicial remedies by filing a defective pleading 

during the statutory period, or where the complainant has 

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6 ARELLANO v. MCDONOUGH

been induced or tricked by his adversary’s misconduct into 

allowing the filing deadline to pass,” but exclude “a garden 

variety claim of excusable neglect.” Irwin, 498 U.S. at .96 

(footnote omitted). But before deciding whether the factual 

circumstances are extraordinary enough to justify equitable tolling, a court must first determine whether the statutory time limit at issue is one amenable to equitable tolling. 

This court has previously addressed whether

§ 5110(b)(1)’s one-year period is subject to equitable tolling

in Andrews. There, the claimant-appellant, Ms. Andrews,

submitted a claim for disability compensation approximately fourteen months after her discharge from service. 

351 F.3d at 1135. As a result, she was awarded compensation effective as of the date the VA received her claim. 

Ms. Andrews appealed that decision, arguing that 

§ 5110(b)(1)’s one-year period should be equitably tolled for 

at least two months (on a failure-to-notify theory) to qualify 

her for an earlier effective date dating back to the day after 

discharge. We disagreed, holding that the “principles of 

equitable tolling . . . are not applicable to the time period 

in § 5110(b)(1).” Id. at 1137. This follows, we explained, 

because § 5110(b)(1) “does not contain a statute of limitations, but merely indicates when benefits may begin and 

provides for an earlier date under certain limited circumstances.” Id. at 1138. Unlike how a statute of limitations 

operates, this statutory provision “addresses the question 

of when benefits begin to accrue, not whether a veteran is 

entitled to benefits at all,” and “[p]assage of the one-year 

period in § 5110(b)(1) . . . does not foreclose payment for the 

veteran.” Id. On that basis, we affirmed the denial of an 

earlier effective date for Ms. Andrews’s claim. 

B

We now turn to the facts of Mr. Arellano’s appeal. 

Mr. Arellano served honorably in the Navy from November 

1977 to October 1981. Nearly 30 years later, on June 3, 

2011, the VA regional office (RO) received Mr. Arellano’s

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ARELLANO v. MCDONOUGH 7

claim for service-connected disability benefits for his psychiatric disorders. The RO granted service connection with

a 100 percent disability rating for “schizoaffective disorder 

bipolar type with PTSD [post-traumatic stress disorder].”

J.A. 506. The granted effective date of Mr. Arellano’s 

award was the date his claim was received—i.e., June 3, 

2011. 

Mr. Arellano appealed his effective-date determination 

to the Board of Veterans’ Appeals (Board), arguing that his 

mental illness had prevented him from filing his claim earlier. Mr. Arellano submitted, as support, a medical opinion 

by his psychiatrist indicating that he had been “100% disabled since 1980,” when he was “almost crushed and swept 

overboard while working on the flight deck of [an] aircraft 

carrier.” J.A. 529. Given his disability, Mr. Arellano argued that § 5110(b)(1)’s one-year period should be equitably tolled to qualify him for an effective date retroactive to 

the day after his discharge from the Navy. The Board rejected his equitable-tolling argument, and the Veterans 

Court affirmed that decision, concluding that Mr. Arellano’s claim was “squarely foreclosed by binding precedent” 

in Andrews. See Arellano v. Wilkie, No. 18-3908, 2019 WL 

3294899, at *2 (Vet. App. July 23, 2019). 

Mr. Arellano then timely appealed to this court, and 

the case was heard before a panel on July 6, 2020. On August 5, 2020, we took the case en banc and entered a sua 

sponte order directing the parties to brief the following issues:

A. Does the rebuttable presumption of the availability of equitable tolling articulated in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), 

apply to 38 U.S.C. § 5110(b)(1), and if so, is it necessary for the court to overrule Andrews v. Principi, 

351 F.3d 1134 (Fed. Cir. 2003)?

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8 ARELLANO v. MCDONOUGH

B. Assuming Irwin’s rebuttable presumption applies to § 5110(b)(1), has that presumption been rebutted?

C. Assuming this court holds that Irwin’s rebuttable presumption applies to § 5110(b)(1), would such 

a holding extend to any additional provisions of 

§ 5110, including but not limited to § 5110(a)(1)?

D. To what extent have courts ruled on the availability of equitable tolling under statutes in other 

benefits programs that include timing provisions 

similar to § 5110?

Order Granting En Banc Review, No. 20-1073 (Aug. 5, 

2020), ECF No. 45, at 2–3.

DISCUSSION

A

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. See 38 U.S.C. § 7292. “The 

Court of Appeals for the Federal Circuit shall decide all relevant questions of law, including interpreting constitutional and statutory provisions.” § 7292(d)(1). Because our 

review of this decision involves a question of statutory interpretation—namely, the availability of equitable tolling 

for a particular statutory provision—we have jurisdiction 

over this matter. We review questions of law, such as this 

one, de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 

(Fed. Cir. 1991).

Irwin sets forth the analytical framework that guides 

our decision. At issue there was whether a statute of limitations in a suit against the government was subject to equitable tolling. Specifically, the Irwin petitioner sought 

equitable tolling of 42 U.S.C. § 2000e-16(c)’s 30-day deadline for filing a Title VII civil action against the federal government in district court after receiving a right-to-sue 

notice from the Equal Employment Opportunity 

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ARELLANO v. MCDONOUGH 9

Commission (EEOC). While statutes of limitations in suits 

between private litigants are “customarily” subject to equitable tolling, an analogous presumption had not yet been 

established for suits against the government. See Irwin, 

498 U.S. at 95. Irwin held that “the same rebuttable presumption of equitable tolling applicable to suits against 

private defendants should also apply to suits against the 

United States.” Id. at 95–96. This case thus established a

rule of general applicability for equitable tolling of statutes 

of limitations in suits against the government, with the caveat that “Congress, of course, may provide otherwise if it 

wishes to do so.” Id. at 96. 

From this, we have understood the Irwin framework to 

consist of two steps. First, we must determine whether the 

rebuttable presumption of equitable tolling applies to the 

statutory provision at issue. And, if so, we must then determine whether that presumption has been rebutted—or 

in other words, whether there is “good reason to believe 

that Congress did not want the equitable tolling doctrine to 

apply” to the statute. See United States v. Brockamp, 519 

U.S. 347, 349–50 (1997). We address each step of the analysis in turn. 

B

Before determining whether Irwin’s presumption of equitable tolling applies to § 5110(b)(1), we first elucidate our 

understanding of the presumption’s origins and limits. 

“Congress is understood to legislate against a background of common-law adjudicatory principles.” Astoria 

Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 

(1991). One such background principle is that “federal 

statutes of limitations are generally subject to equitable 

principles of tolling,” see Rotella v. Wood, 528 U.S. 549, 

560–61 (2000), which is “a long-established feature of 

American jurisprudence derived from ‘the old chancery 

rule,’” Lozano, 572 U.S. at 10–11 (quoting Holmberg v. 

Armbrecht, 327 U.S. 392, 397 (1946)). Justification for this 

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10 ARELLANO v. MCDONOUGH

principle comes from recognizing that tolling can be consistent with the purpose of a statute of limitations under 

certain circumstances. In other words, because a statute 

of limitations is designed “to encourage the plaintiff to pursue his rights diligently” after a cause of action has accrued, when an “extraordinary circumstance prevents him 

from bringing a timely action” despite his diligence, “the 

restriction imposed by the statute of limitations [no longer] 

further[s] the statute’s purpose” and can be equitably 

tolled. CTS Corp. v. Waldburger, 573 U.S. 1, 10 (2014)

(cleaned up). 

Given that “Congress must be presumed to draft limitations periods in light of this background principle,” 

Young v. United States, 535 U.S. 43, 49–50 (2002), courts 

have customarily “presume[d] that equitable tolling applies if the period in question is a statute of limitations and 

if tolling is consistent with the statute,” Lozano, 572 U.S. 

at 11. And while this practice began in lawsuits between 

private litigants, Irwin subsequently extended the presumption to suits against the government. 498 U.S. at 95–

96 (“[T]he same rebuttable presumption of equitable tolling 

applicable to suits against private defendants should also 

apply to suits against the United States.” (emphasis 

added)); see also id. at 96 (“[I]t is evident that no more favorable tolling doctrine may be employed against the 

[g]overnment than is employed in suits between private litigants.”). 

Because the presumption serves as a proxy for the

background legal principles that Congress is understood to 

legislate against, it follows that Irwin’s presumption is limited to only those statutory provisions that are established

in common law as subject to equitable tolling—namely,

statutes of limitations. See John R. Sand & Gravel Co. v. 

United States, 552 U.S. 130, 137 (2008) (“[Irwin’s] presumption seeks to produce a set of statutory interpretations that will more accurately reflect Congress’ likely 

meaning in the mine run of instances where it enacted a 

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ARELLANO v. MCDONOUGH 11

[g]overnment-related statute of limitations.”). To that end, 

the Supreme Court has so far applied the presumption of 

equitable tolling only to statutory provisions that Congress 

clearly would have viewed as statutes of limitations. See, 

e.g., Lozano, 572 U.S. at 13–14 (“[W]e have only applied 

[the] presumption [in favor of equitable tolling] to statutes 

of limitations.”); Zipes v. Trans World Airlines, Inc., 455 

U.S. 385, 393–95 (1982) (holding that a limited filing period 

for EEOC charges is like a statute of limitations that is 

subject to waiver, estoppel, and equitable tolling). This 

comports with the understanding that equitable tolling

“applies when there is a statute of limitations; it is, in effect, a rule of interpretation tied to that limit.” Petrella v. 

Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 681 (2014) (emphasis added); see also Equitable Tolling, BLACK’S LAW 

DICTIONARY (11th ed. 2019) (defining “equitable tolling” as 

“[t]he doctrine that the statute of limitations will not bar a 

claim if . . .” (emphasis added)); Holmberg v. Armbrecht, 

327 U.S. 392, 397 (1946) (“[E]quitable [tolling] is read into 

every federal statute of limitation.”). Conversely, the Supreme Court has declined to presume that equitable tolling 

applies where the time limit at issue functions “[u]nlike a 

statute of limitations,” see Hallstrom v. Tillamook County, 

493 U.S. 20, 27 (1989) (emphasis added), or lacks “a background principle of equitable tolling,” see Lozano, 572 U.S. 

at 12. See also Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 

145, 158–59 (2013) (declining to presume that “an agency’s 

internal appeal deadline” is subject to equitable tolling because the Supreme Court had “never applied the Irwin presumption to [such a provision]”). As these cases reflect, 

determining that Congress would have viewed a provision 

as a statute of limitations is a necessary first step in inferring congressional intent to permit equitable tolling of that 

provision. Accordingly, absent some other established

background principle of law permitting equitable tolling for 

the statutory provision at issue, Irwin’s presumption applies only to those statutory provisions that Congress 

clearly would have viewed as statutes of limitations. 

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12 ARELLANO v. MCDONOUGH

Our conclusion is supported not only by Irwin’s logic 

and the subsequent cases applying it, but also, by the limitations of the Appropriations Clause of the Constitution, 

art. I, § 9, cl. 7, on the payment of money from the public 

fisc contrary to the express terms of a statute. See Off. of 

Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990). The 

Appropriations Clause provides that “[n]o Money shall be 

drawn from the Treasury, but in Consequence of Appropriations made by Law.” As the Supreme Court explained in 

Richmond: “For the particular type of claim at issue here, 

a claim for money from the Federal Treasury, the Clause 

provides an explicit rule of decision. Money may be paid 

out only through an appropriation made by law; in other 

words, the payment of money from the Treasury must be 

authorized by a statute.” 496 U.S. at 424.2 Thus, where a 

plaintiff seeks to enlarge the monetary benefits awarded 

by the express terms of a statute through equitable tolling 

(as Mr. Arellano does here), we must decide whether Congress intended to authorize payment of those additional 

benefits via equitable tolling. This, in turn, necessarily implicates the question of whether Congress would have 

viewed the benefits provision at issue as a statute of limitations carrying the usual feature of equitable tolling.

Our analysis therefore begins by asking whether 

§ 5110(b)(1)’s effective date provision is such a provision. 

As discussed below, and consistent with our reasoning in

Andrews, § 5110(b)(1) is not a statute of limitations.

2 That is not to say, however, that the Appropriations Clause bars all equitable tolling against the government for monetary claims. Instead, if “application of the 

doctrine [of equitable tolling] is consistent with Congress’ 

intent in enacting a particular statutory scheme, [then] 

there is no justification for limiting the doctrine to cases 

that do not involve monetary relief.” See Bowen v. City of 

New York, 476 U.S. 467, 479 (1986). 

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ARELLANO v. MCDONOUGH 13

C

To determine whether § 5110(b)(1) is a statute of limitations, we consider whether this provision satisfies the 

“functional characteristics” of such statutes. Lozano, 572 

U.S. at 15 n.6 (“[T]he determination [of] whether [a statutory provision] is a statute of limitations depends on its 

functional characteristics . . . .”). As explained below, 

§ 5110(b)(1) does not have the functional characteristics of 

a statute of limitations. We see two reasons why Congress 

would not have thought that the provision belongs to that 

category of laws.

First, § 5110(b)(1) does not operate to bar a veteran’s 

claim for benefits for a particular service-connected disability after one year has passed. Instead, like the general 

rule of § 5110(a)(1), it determines one of many elements of 

a benefits claim that affects the amount of a veteran’s 

award but, unlike a statute of limitations, does not eliminate a veteran’s ability to collect benefits for that very disability. Second, and relatedly, § 5110(b)(1) lacks features 

standard to the laws recognized as statutes of limitations 

with presumptive equitable tolling: its one-year period is 

not triggered by harm from the breach of a legal duty owed 

by the opposing party, and it does not start the clock on 

seeking a remedy for that breach from a separate remedial 

entity. See 1 Calvin W. Corman, LIMITATION OF ACTIONS, 

§ 6.1, at 370 (1991). The statutory scheme governing veterans’ benefits makes clear that the VA is not obligated to 

pay any benefits before a claim applying for such benefits 

is filed, so there is no duty, or breach of duty, at the onset 

of § 5110(b)(1)’s one-year period (i.e., the day after discharge). Moreover, no remedial authority separate from 

the VA is involved in an initial application for veterans’ 

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14 ARELLANO v. MCDONOUGH

benefits.3 The effective-date provision in this case, then, is 

of a sufficiently different character from that of statutes of 

3 Judge Dyk contends that the need for a separate 

remedial authority is inconsistent with three cases purportedly establishing that “a statute governing the timeliness of a claim to an agency for payment from that agency 

is a statute of limitations.” Dyk Op. 7 (citing United States 

v. Williams, 514 U.S. 527, 534 & n.7 (1995); Colvin v. Sullivan, 939 F.2d 153, 156 (4th Cir. 1991); and Warren v. Off. 

of Pers. Mgmt., 407 F.3d 1309, 1316 (Fed. Cir. 2005)). None 

of these cases, however, addresses equitable tolling of such 

statutes, let alone holds that they are entitled to Irwin’s 

presumption. Instead, these cases merely use the phrase 

“statute of limitations” briefly in dicta as a colloquial expression for a statutory time limit. But as Williams readily 

demonstrates, the fleeting and casual use of this phrase in 

no way establishes that Irwin’s presumption applies to 

those time limits or that they can be equitably tolled.

Williams concerns the same statutory provision 

(26 U.S.C. § 6511) revisited two years later in Brockamp. 

While equitable tolling was not at issue in Williams, 

Brockamp raised the question of whether § 6511 may be 

equitably tolled under Irwin. Rather than concluding that 

Irwin’s presumption applies, the Supreme Court carefully 

“assume[d] . . . only for argument’s sake” that § 6511’s time 

limit was an Irwin-covered statute of limitations. See

Brockamp, 519 U.S. at 349–50; see also Auburn, 568 U.S.

at 159. And even under that assumption, the Court nonetheless concluded that Congress did not intend for equitable tolling to apply to § 6511’s time limit. Brockamp, 519 

U.S. at 350–54. 

These cases, moreover, do not involve statutory provision functionally similar to § 5110(b)(1), or otherwise establish a background principle of law that would authorize

a tribunal to override § 5110(b)(1)’s express statutory 

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ARELLANO v. MCDONOUGH 15

limitations entitled to Irwin’s presumption. These marked 

differences undermine any inference that Congress would

have viewed § 5110(b)(1) as falling within that category of 

laws, so as to justify judicial override of Congress’ express 

statutory limits on benefits payments. Below, we address 

these differences in function and characteristics in detail.

1

A statute of limitations, simply put, is a “law that bars 

claims after a specified period.” Statute of Limitations, 

BLACK’S LAW DICTIONARY (11th ed. 2019). “Statutes of limitations are designed to encourage plaintiffs to pursue diligent prosecution of known claims,” Cal. Pub. Emps. Ret. 

Sys., 137 S. Ct. at 2049 (internal quotation marks omitted), 

by “prescrib[ing] a period within which certain rights . . . 

may be enforced,” Young, 535 U.S. at 47. By barring stale 

claims, statutes of limitations “assure fairness to defendants” and “promote justice by preventing surprises through 

the revival of claims that have been allowed to slumber.” 

See Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428 (1965)

(internal quotation marks omitted).

To determine whether the functional characteristics of 

a statute of limitations are met, the Supreme Court has focused the inquiry on whether the statute at issue encourages plaintiffs to promptly pursue their claims or risk 

losing remedies for those claims. In Young, for instance, 

the Court held that a statutory “three-year lookback period” for the IRS to collect overdue, unpaid taxes from a 

limits on monetary governmental benefits. And unlike an 

initial application for veterans’ benefits, these cases implicate a preexisting duty to pay owed by the government. 

Williams, Colvin, and Warren therefore fail to establish 

that a tribunal may override, through equitable tolling, an 

indisputably applicable statutory limit on governmental 

monetary benefits.

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16 ARELLANO v. MCDONOUGH

taxpayer in bankruptcy proceedings was a statute of limitations because it “encourages the IRS to protect its rights” 

by “collecting the debt or perfecting a tax lien—before three 

years have elapsed.” 535 U.S. at 47 (citations omitted). 

There, the relevant statute afforded the IRS certain “legal 

remedies” for collecting a tax debt accrued within three

years before a debtor’s bankruptcy petition filing: the tax

debt is nondischargeable and the IRS’s claim enjoys eighth 

priority4 in bankruptcy. Id. at 47–48. But if the IRS 

“sleeps on its rights” by failing to act within the three-year 

lookback period, then the IRS loses those “legal remedies”

for collecting that debt. Specifically, “its claim loses priority and the debt becomes dischargeable” in bankruptcy, so

that a bankruptcy decree will release the debtor from any 

obligation to pay and leave the IRS unable to collect on that 

debt. Id. The Court concluded that such a provision—

which bars the IRS from recovering any tax debt accrued

more than three years before bankruptcy proceedings 

begin—is a statute of limitations because it serves the 

“same basic policies [furthered by] all limitations provisions: repose, elimination of stale claims, and certainty 

about a plaintiff’s opportunity for recovery and a defendant’s potential liabilities.” Id. The Supreme Court also employed similar reasoning in Zipes, determining that the 

period for filing a charge of employment discrimination

with the EEOC (a precondition to a federal-court action) 

operates as a statute of limitations given “its purpose [of] 

preventing the pressing of stale claims” and “giv[ing] 

prompt notice to the [defendant] employer”—the very 

4 The bankruptcy priority scheme determines the order in which claims are paid. Claims with higher priority 

are entitled to payment in full before anything can be distributed to claims of lower rank. See 1 Richard I. Aaron, 

Bankruptcy Law Fundamentals § 8:10 (2020 ed.).

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ARELLANO v. MCDONOUGH 17

“end[s] served by a statute of limitations.” 455 U.S. at 394, 

398 (internal quotation marks omitted). 

By contrast, Lozano considered a time limitation that 

did not function as a statute of limitations and was therefore not subject to equitable-tolling principles. There, the 

Supreme Court declined to apply the presumption of equitable tolling to a treaty provision that did not did not “establish[] any certainty about the respective rights of the 

parties” and, instead, addressed policy concerns irrelevant 

to the functioning of a statute of limitations. 572 U.S. at 

14–15. At issue was a Hague Convention provision requiring the return of a child abducted by a parent in a foreign 

country, so long as the left-behind parent requests return 

“within one year.” 572 U.S. at 4. After one year, the child 

must still be returned to the left-behind parent “unless it is 

demonstrated that the child is now settled.” Id. at 15 (emphasis added). Expiration of the one-year period thus “does 

not eliminate the remedy [for] the left-behind parent—

namely, the return of the child” and, instead, merely “opens 

the door” to consider “the child’s interest” as well as the

parent’s interest. Id. at 14–15. Such a provision “is not a 

statute of limitations,” the Court explained, because the 

“continued availability of the return remedy after one year 

preserves the possibility of relief for the left-behind parent 

and prevents repose for the abducting parent.” Id. Moreover, the additional consideration of the child’s interest is 

“not the sort of interest addressed by a statute of limitations.” Id.; see also In re Neff, 824 F.3d 1181, 1186–87 (9th 

Cir. 2016) (holding that a statutory provision is not a statute of limitations because it does not serve the purposes of 

“repose, elimination of stale claims, and certainty” and, instead, addressed unrelated policy concerns).5 The Court

5 In Neff, the statutory provision at issue foreclosed 

discharge in bankruptcy for debtors who improperly 

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18 ARELLANO v. MCDONOUGH

thus concluded that equitable tolling was unavailable for 

the treaty provision at issue. 

Similarly, in Hallstrom v. Tillamook County, the Court

determined that a provision requiring plaintiffs to give notice of alleged environmental violations to the relevant 

agency 60 days prior to commencing a civil action was not 

a statute of limitations subject to equitable modification. 

493 U.S. at 27. The Court explained: “Unlike a statute of 

limitations, [the] 60-day notice provision is not triggered by 

the violation giving rise to the action.” Id. (emphasis 

added). Instead, plaintiffs “have full control over the timing of their suit,” as “they need only give notice to the appropriate [agency] and refrain from commencing their 

action for at least 60 days. Id. The 60-day notice period, 

therefore, did not encourage plaintiffs to diligently file 

claims or risk losing remedies for a violation. 

Here, as in Lozano and Hallstrom, § 5110(b)(1)’s effective-date provision does not have the key “functional characteristics” that define a statute of limitations. Because a 

veteran seeking disability compensation “faces no time 

limit for filing a claim,” Henderson ex rel. Henderson v. 

Shinseki, 562 U.S. 428, 431 (2011), “[t]here is no statute of 

limitations” for filing such a claim, Walters v. Nat’l Ass’n of 

transferred property “within one year” of filing a bankruptcy petition. 824 F.3d at 1183. The Ninth Circuit concluded that such a provision is not a statute of limitations 

because it “is not designed to encourage a specific creditor 

to prosecute its claim promptly to avoid losing rights” and, 

in fact, “does not encourage (or require) a creditor to take 

any action at all.” Id. at 1186. Moreover, the purpose of 

the statute—to deter and penalize dishonest debtors from 

“seeking to abuse the bankruptcy system”—concerned policy matters unrelated to “the sort of interest addressed by 

a statute of limitations.” Id. at 1187 (citing Lozano, 572 

U.S. at 15). 

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ARELLANO v. MCDONOUGH 19

Radiation Survivors, 473 U.S. 305, 311 (1985). The timing 

of when the claim is filed affects only an element of the 

claim itself—the effective date—and not whether the veteran is entitled to benefits at all. See Collaro v. West, 136 

F.3d 1304, 1308 (Fed. Cir. 1998) (explaining that “the effective date of the disability” is one of five elements to a 

veteran’s application for benefits). A veteran is entitled to 

press the same claim for a specific service-connected disability regardless of whether the claim is filed within a year 

after discharge or 30 years after discharge, as was the case 

for Mr. Arellano. Section 5110(b)(1), like the treaty provision in Lozano, thus does not set forth any period after 

which a veteran is foreclosed from pressing that claim and 

receiving benefits if the claim is established. 

The timing provision of § 5110(b)(1), in fact, does not 

function to bar stale claims or encourage the diligent prosecution of known claims. To the contrary, § 5110(b)(1) was 

adopted to “remove[] injustices where there is delay in filing [a] claim due to no fault of the veteran and payment 

could otherwise be made only from [the filing] date of [the] 

claim.” See 89 Cong. Rec. A4026 (1943) (statement of Rep. 

Rankin). Section 5110(b)(1)’s one-year grace period thus

forgives a veteran’s temporary delay in filing a claim in the 

immediate aftermath of a veteran’s transition back to civilian life upon discharge from military service. This provision is itself an equitable exception provided by Congress 

to address injustices that may arise from § 5110(a)(1)’s default rule and, in that respect, speaks to policy concerns 

that are “not the sort of interest addressed by a statute of 

limitations.” See Lozano, 572 U.S. at 15. Given (1) the 

well-established understanding of what constitutes a statute of limitations, and (2) the nature of § 5110(b)(1)’s effective-date provision, § 5110(b)(1) does not satisfy the 

“functional characteristics” of a statute of limitations.

Mr. Arellano, in response, asserts that even if § 5110 

preserves the possibility of prospective benefits for an ongoing disability regardless of when the claim is filed, a 

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20 ARELLANO v. MCDONOUGH

veteran will nonetheless lose out on retroactive benefits dating back to the day after discharge if his claim is not filed 

within one year of discharge. Section 5110(b)(1)’s one-year 

period therefore encourages veterans to diligently file their 

disability claims after discharge to protect their rights to 

retroactive benefits. He argues that § 5110(b)(1) is “similar” to the statutory-lookback periods for copyright and patent damages in Petrella and SCA Hygiene Products 

Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 

954 (2017), respectively, insofar as these statutes all “limit 

[the amount of] claimants’ damages but not their ability to 

seek redress for an ongoing . . . injury.” Appellant’s Supp. 

Reply Br. 10. We disagree.

This argument overlooks the distinction that

§ 5110(b)(1) establishes the effective date of a single benefits claim for an ongoing disability, whereas an ongoing 

course of infringement in Petrella and SCA Hygiene comprises a “series of discrete infringing acts,” each of which is 

a distinct harm giving rise to an independent claim for relief that starts a new limitations period. See Petrella, 572 

U.S. at 671–72. The copyright damages statute states: “No 

civil action shall be maintained under the provisions of this 

title unless it is commenced within three years after the 

claim accrued.” 17 U.S.C. § 507(b). As Petrella explains, 

this statute is subject to the “separate accrual rule”—that 

is, “when a defendant commits successive violations, the 

statute of limitations runs separately from each violation,” 

such that each violation “gives rise to a discrete ‘claim’ that 

‘accrue[s]’ at the time the wrong occurs.” 572 U.S. at 671 

(alteration in original) (emphasis added). “In short, each 

infringing act starts a new limitations period.” Id. (emphasis added). Subsequently, in SCA Hygiene, the Supreme 

Court confirmed that the “same reasoning” from Petrella

applies to the six-year lookback period in the patent damages statute, 35 U.S.C. § 286. As with copyright infringement, each individual act of patent infringement gives rise 

to a discrete claim that starts its own six-year limitations 

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ARELLANO v. MCDONOUGH 21

period for seeking a remedy for that act. See 1 Robert A. 

Matthews, Jr., Annotated Patent Digest § 9:2 (2021 ed.) 

(explaining that in a series of discrete infringing acts, “each 

act . . . can constitute its own separate act of [patent] infringement”). The lookback periods for copyright and patent damages, therefore, function just as a traditional 

statute of limitations would to foreclose pressing of stale 

claims, while permitting timely claims to proceed. 

By contrast, § 5110(b)(1)’s one-year grace period never 

bars a veteran’s benefits claim regardless of when it was 

filed and, instead, establishes an element of the claim itself 

(i.e., the effective date of the award). Cf. Arbaugh v. Y&H 

Corp., 546 U.S. 500, 514 (2006) (distinguishing an “essential element of a claim for relief” from a jurisdictional statutory limitation). Mr. Arellano, moreover, has not 

demonstrated that a single claim seeking benefits for a specific disability can comprise two discrete claims for retrospective and prospective benefits, each arising from a 

distinct injury that starts its own limitations period. Nor 

is there a basis for construing his claim in this manner, 

given that retrospective and prospective benefits arise from 

the same “five common elements” of a single benefits claim: 

“[1] status as a veteran, [2] existence of disability, [3] a connection between the veteran’s service and the disability, [4] 

the degree of disability, and [5] the effective date of the disability.” See Collaro, 136 F.3d at 1308. Thus, neither 

§ 507(b)’s copyright limitations period nor § 286’s patent 

limitations period support finding that § 5110(b)(1) functions as a statute of limitations amenable to equitable tolling.

Mr. Arellano next analogizes to Young’s three-year 

lookback period, arguing that § 5110(b)(1)—which bars 

only retroactive benefits predating the date the VA received 

his claim, but not prospective benefits beginning from the 

date the VA received his claim—is no less a statute of limitations than the lookback period in Young. We disagree. 

Young’s lookback period is a “limited statute of limitations” 

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22 ARELLANO v. MCDONOUGH

in the sense that it arises only in the situation when a tax 

debtor files a bankruptcy petition and bars certain “legal 

remedies” (i.e., priority and nondischargeability in bankruptcy) outside of the lookback period. See 535 U.S. at 47–

48. But the Supreme Court concluded it was “a statute of 

limitations nonetheless” because any tax debt accrued 

more than three years before the date of the bankruptcy 

petition becomes fully dischargeable, leading to the “elimination of stale claims.” Id. Expiration of the three-year 

lookback period therefore barred the entirety of the IRS’s 

claim, just as a traditional statute of limitations would. See

id. at 47 (explaining that the lookback period functions as 

a statute of limitations by barring “[o]ld tax claims” falling 

outside the statutory period). Here, under § 5110(b)(1),

disability compensation claims received within one year of 

discharge are afforded an earlier effective date that results 

in, at most, one year of retroactive benefits. But unlike

Young’s lookback period, passage of this one-year period 

does not bar a veteran from attaining any effective date at 

all and, instead, bars only an effective date earlier than the 

date of receipt. The practical effect of § 5110(b)(1), then, is 

not to foreclose a veteran from all benefits but only from

those retroactive from the day his claim is received. 

Mr. Arellano, however, offers the following variation on 

Young: instead of having only one tax year at issue, suppose that the Youngs owed tax debt from multiple years. 

The IRS would then be barred from recovering tax debt 

from the years outside the three-year lookback period but 

could still recover any of the debt from within that period. 

See Oral Arg. at 30:32–32:52. Under this hypothetical, 

Mr. Arellano contends, the lookback period merely affects 

the amount of relief the IRS would be entitled to recover 

but does not entirely bar the IRS from such relief, meaning 

that it is a “more limited statute of limitations, but a statute of limitations nonetheless.” See Young, 535 U.S. at 48. 

So too here, Mr. Arellano asserts, where filing a benefits

claim after § 5110(b)(1)’s one-year grace period merely 

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ARELLANO v. MCDONOUGH 23

affects the amount of benefits awarded without barring the 

claim itself. 

But this hypothetical is no different from the lookback 

periods in Petrella and SCA Hygiene and is distinguishable 

for the same reason: § 5110(b)(1) establishes the effective 

date of a single application for disability benefits, whereas 

each year of tax debt in Mr. Arellano’s hypothetical corresponds to a separate IRS claim involving different facts and 

liabilities. See, e.g., Young, 535 U.S. at 46 (three-year lookback period applies to “claims” for unpaid taxes “for a taxable year” (emphasis added)). In other words, “[i]f the IRS 

has a claim for taxes for which the return was due within 

three years before the bankruptcy petition was filed,” then 

the IRS’s claim is protected and “nondischargeable in 

bankruptcy.” Id. But if the claim is for unpaid taxes from 

a return due more than three years before the bankruptcy 

petition was filed, then that individual claim is lost and 

dischargeable in bankruptcy. Because the tax debt arising 

from each tax year constitutes its own distinct claim

against a taxpayer, Young’s lookback period operates as 

any other statute of limitations would to bar stale claims 

arising from older tax years while providing remedies for 

timely claims. See id. at 49 (the lookback period “define[s]

a subset of claims eligible for certain remedies” when a tax 

debtor is in bankruptcy (emphasis added)). Accordingly, 

for the reasons discussed above, Young’s lookback period

fails to demonstrate that § 5110(b)(1) functions as a statute 

of limitations.

2

Section 5110(b)(1) also differs from statutes of limitations in additional ways—namely, with respect to the onset 

of its one-year period and the remedial authority involved. 

These differences further undermine any inference that 

Congress must have viewed § 5110(b)(1) as a statute of limitations that would presumptively allow judicial override of 

express statutory limits on benefits payments under Irwin.

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24 ARELLANO v. MCDONOUGH

The “standard rule” is that a statute of limitations begins to run when the cause of action “accrues,” i.e., when 

“the plaintiff has a ‘complete and present cause of action.’” 

Bay Area Laundry & Dry Cleaning Pension Trust Fund v. 

Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (quoting 

Rawlings v. Ray, 312 U.S. 96, 98 (1941)); see also Wallace 

v. Kato, 549 U.S. 384, 388 (2007). Unless Congress indicates otherwise, “a cause of action does not become ‘complete and present’ for limitations purposes until the 

plaintiff can file suit and obtain relief.” Bay Area Laundry, 

522 U.S. at 201. The earliest opportunity for a plaintiff to 

sue under such circumstances is when the opposing party 

has violated some duty owed to that plaintiff, such as contractual obligations or a duty of care. See 1 Calvin W. Corman, LIMITATION OF ACTIONS, § 6.1, at 370 (1991) (“The 

earliest opportunity for a complete and present cause of action is that moment when the plaintiff has suffered a legally recognizable harm at the hands of the defendant, 

such as the time of contract breach or the commission of a 

tortious wrong.” (emphasis added)). In Bay Area Laundry, 

for instance, the Supreme Court held that a cause of action 

against an employer that withdraws from a multiemployer 

pension plan is not complete, and therefore the statute of 

limitations does not run, until a demand for payment is 

made by the plan’s trustees and rejected by that employer. 

522 U.S. at 202. This follows, the Court explained, because 

“the statute makes clear that the withdrawing employer 

owes nothing until its plan demands payment,” and absent 

such a demand, the employer has no duty of payment that 

could be violated to give rise to a cause of action. See id.

(emphasis added). 

As applied to the veterans’ benefits context, the earliest 

point at which a veteran could have a “complete and present cause of action” is when the VA has failed to satisfy a 

legal duty owed to the veteran, such as when his claim for 

benefits has been wrongfully adjudicated or denied. In this 

vein, we have recognized that the 120-day time limit for a 

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ARELLANO v. MCDONOUGH 25

veteran to appeal an unsatisfactory Board decision to the 

Veterans Court is a statute of limitations to which Irwin’s 

presumption applies. See Jaquay v. Principi, 304 F.3d 

1276, 1283 (Fed. Cir. 2002) (en banc) (citing Bailey v. West, 

160 F.3d 1360 (Fed. Cir. 1998) (en banc)). But the one-year 

period in § 5110(b)(1), beginning on the day after discharge 

from service, does not measure the time from harm caused 

by a breach of duty, or even from a breach of duty, to the 

filing of the claim. This, together with the fact that the 

claim is not made to a separate entity with authority to address an asserted breach, makes it unlikely that Congress 

conceived of this timing rule as a statute of limitations for 

Irwin purposes. 

Indeed, in an initial application for disability compensation where § 5110 governs the effective-date determination, the VA has not yet violated any legal duty owed to the 

claimant that would trigger a statute of limitations to run. 

The statutory scheme governing veterans’ benefits makes 

clear that the VA is not obligated to pay any benefits before 

a claim applying for such benefits is filed. In particular, 

§ 5101(a)(1)(A) states that “a specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual under the 

laws administered by the Secretary.” § 5101(a)(1)(A) (emphasis added). This provision explains that the filing of a 

benefits claim must first occur for any benefits to accrue or 

be paid by the VA. The VA thus has no preexisting duty to 

award benefits, and a veteran has no corresponding right 

to receive such benefits, until after a claim applying for 

benefits is filed by the veteran with the VA. See Jones v. 

West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (“Section 

5101(a) is a clause of general applicability and mandates 

that a claim must be filed in order for any type of benefit to 

accrue or be paid.”), cert. denied, 525 U.S. 834 (1998); 

McCay v. Brown, 106 F.3d 1577, 1580 (Fed. Cir. 1997) (stating § 5101(a) requires that “a claim must be on file before 

benefits may be obtained”). Without a preexisting right, 

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26 ARELLANO v. MCDONOUGH

there can be no violation of that right for which a veteran

would seek redress, which could then be barred if not pursued within a specified limitations period. See Henry M. 

Hart, Jr. & Albert M. Sacks, THE LEGAL PROCESS 136–37

(William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); 

id. at 137 (stating that it is wrong to “allow a primary right 

to be confused with a remedial right of action, which is a 

very different legal animal” and criticizing “confusion between a primary claim to a performance and a remedial capacity to invoke a sanction for nonperformance”). Section 

5110(b)(1)’s effective-date provision, then, is of a different 

character than a statute of limitations because the filing of 

a benefits claim is not an action seeking a remedy for previously due, but wrongfully unpaid, benefits. See Hallstrom, 493 U.S. at 27 (holding that a statutory time limit is 

“[u]nlike a statute of limitations” because it is not “triggered by the violation giving rise to the action” and is therefore not subject to equitable modification and cure).

Logic also supports our conclusion that there is no 

cause of action, and therefore no statute of limitations that 

could be equitably tolled, until after a claimant files an initial claim for benefits and receives an unsatisfactory VA 

decision on that claim. A claimant seeking an increased 

benefits award, as Mr. Arellano does here, has no basis to 

maintain a suit against the VA until at least two events 

have transpired. He must first file an initial claim seeking 

benefits from the VA. And second, he must receive the VA’s 

initial decision determining the amount of his award. Only 

then could that claimant have a cause of action against the 

VA if he disagrees with the amount of benefits awarded. 

Cf. Bay Area Laundry, 522 U.S. at 202 (“Absent a demand, 

even a willing employer cannot satisfy its payment obligation, for the withdrawing employer cannot determine, or 

pay, the amount of its debt until the plan has calculated 

that amount.”). Yet if § 5110(b)(1) were a statute of limitations as Mr. Arellano and Judge Dyk contend, a claimant 

would have a cause of action on the day after his discharge 

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ARELLANO v. MCDONOUGH 27

from service—before any claim for benefits has been filed 

and before the VA has made an initial determination on the

claim with which the claimant could disagree. “Such a result is inconsistent with basic limitations principles,” id. at 

200, and we do not see how a statute of limitations could 

begin to run on the day after discharge. 

Judge Dyk responds that this reasoning is inconsistent 

with “cases holding that a provision barring benefits for 

failure to file [a claim] within a prescribed period constitutes a statute of limitations, regardless of any alleged 

breach of duty by the government.” Dyk Op. at 5. He cites 

our decision in Cloer v. Sec’y of Health & Hum. Servs., 

where we held that the Vaccine Act’s 36-month deadline for 

filing a petition for compensation for a “vaccine-related injury” is a statute of limitations that begins to run on the 

date the first symptom or manifestation of onset of the injury claimed occurs. 654 F.3d 1322, 1340–44 (Fed. Cir. 

2011) (en banc). The Vaccine Act’s 36-month filing deadline, however, is easily distinguishable from § 5110(b)(1)’s 

effective date provision. 

Unlike § 5110(b)(1), the Vaccine Act’s filing deadline is 

phrased and functions as a traditional statute of limitations that bars a plaintiff from seeking relief from a tribunal once the specified time limit has passed. Specifically,

42 U.S.C. § 300aa-16(a)(2) recites: “if a vaccine-related injury occurred as a result of the administration of such vaccine, no petition may be filed for compensation under the 

Program for such injury after the expiration of 36 months 

after the date of the occurrence of the first symptom or 

manifestation of onset or of the significant aggravation of 

such injury.” Nothing in this provision purports to affect

the amount of compensation awarded on a successful petition. In contrast to § 5110(b)(1)’s effective date provision, 

which does not bar a claimant from filing an application for 

benefits more than one year after discharge, § 300aa16(a)(2) bars the filing of a petition for compensation after

36 months have passed since the “first symptom or 

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28 ARELLANO v. MCDONOUGH

manifestation of onset or of the significant aggravation” of 

claimant’s vaccine-related injury. Section 300aa-16(a)(2) 

thus exhibits the functional characteristics germane to all 

statutes of limitations by encouraging claimants to 

promptly file a petition or risk losing remedies available 

under the Vaccine Act. 

Moreover, in contrast to an initial application seeking

veterans’ benefits from the VA, the Vaccine Act’s filing 

deadline arises in a context in which a plaintiff seeks redress in federal court for a preexisting duty owed by the 

defendant. Prior to the Act, a plaintiff injured by a vaccine

could directly sue the vaccine’s manufacturer in civil court, 

alleging harm caused by that manufacturer’s breach of 

duty. But due to concerns that civil actions against vaccine 

manufacturers were unsustainably raising vaccine prices 

and driving manufacturers out of the market, Congress enacted the Vaccine Act to create a streamlined process to 

“stabilize the vaccine market and expedite compensation to 

injured parties.” Sebelius v. Cloer, 569 U.S. 369, 372 (2013)

(citing H.R. Rep. No. 99-908, at 4 (1986)). Payments 

awarded under the Act are funded by the vaccine manufacturers themselves through an excise tax levied on each 

dose of vaccine. See Bruesewitz v. Wyeth LLC, 562 U.S. 

223, 239–40 (2011); H.R. Rep. No. 99-908, at 34 (excise tax 

on vaccine manufacturers are intended to “generate sufficient annual income for the Fund to cover all costs of compensation”). However, the government (specifically, the 

Secretary of Health and Human Services) administers the 

program and, in doing so, assumes the preexisting legal 

duty owed to a claimant who has suffered a vaccine-related 

injury. See 42 U.S.C. § 300aa-12(b)(1) (“In all proceedings 

brought by the filing of a petition under [§] 300aa-11(b) of 

this title, the Secretary shall be named as the respondent, 

shall participate, and shall be represented.”). 

While the Vaccine Act eases certain evidentiary burdens by not requiring claimants to prove “wrongdoing by 

the manufacturer” or causation for on-Table injuries, see

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ARELLANO v. MCDONOUGH 29

H.R. Rep. 99-908, at 12 (1986), initiating a Vaccine Act proceeding bears substantial similarities to initiating a civil 

action governed by a statute of limitations. Both require

an injured party to seek—within a statutory time period—

a remedy before a federal court predicated on a legal duty 

owed by another. Just as a plaintiff initiates a civil action

by serving the defendant and timely filing a complaint in 

court, “[a] proceeding for compensation under [the Vaccine 

Act] shall be initiated by service upon the Secretary and 

the filing of a petition . . . with the United States Court of 

Federal Claims” within 36 months of the first symptom or 

manifestation of vaccine-related injury. See 42 U.S.C.

§ 300aa–11(a)(1). Nothing in this initiation process speaks 

to the administrative context in which § 5110(b)(1) operates, wherein a claimant files an initial application with

the VA seeking an award of monetary benefits from that 

agency, such that the application’s date of receipt determines (in part) the total amount of benefits awarded. 

Our understanding of the functional distinction between § 5110(b)(1)’s effective-date provision and a statute 

of limitations is further confirmed by observing that “the 

creation of a right is distinct from the provision of remedies 

for violations of that right.” See eBay Inc. v. MercExchange, 

L.L.C., 547 U.S. 388, 392 (2006) (emphasis added). A statute of limitations pertains to the latter, but not the former, 

by establishing a period for a veteran to seek a remedy for 

the violation of a right to benefits. Section 5110(b)(1)’s effective-date provision, on the other hand, is an element of 

the veteran’s claim seeking benefits that pertains to the 

creation of a right to benefits but not to the remedies for 

violations of that right. Cf. Cloer, 654 F.3d at 1335 (explaining that § 300aa-11(c)(1)(D)(i)’s requirement a claimant suffer the effects of a vaccine-related injury for “more 

than 6 months after the administration of the vaccine” is 

“a condition precedent to filing a petition for compensation” 

that “is intended to restrict eligibility to the compensation 

program, not to act as a statutory tolling mechanism for 

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30 ARELLANO v. MCDONOUGH

the [36-month] statute of limitations”). Accordingly, 

§ 5110(b)(1), which establishes the effective date of a claim 

whose filing is necessary “for benefits to be paid or furnished” by the VA, is not a statute of limitations because it 

pertains only to the creation of the right to be paid benefits, 

and not to the provision of remedies for violations of that 

right. For this reason, too, Congress would not have viewed 

§ 5110(b)(1) as a statute of limitations. 

D

Having determined that Congress would not have 

viewed § 5110(b)(1) as a statute of limitations, we are left 

to consider whether some other background principle of 

law supports applying Irwin’s presumption of equitable 

tolling to § 5110(b)(1)’s effective-date provision. We see 

nothing in the cases identified by Mr. Arellano and Judge 

Dyk that would establish any such principle of law. 

1

We are unaware of any case that applies Irwin’s presumption to a statutory provision functionally similar to 

§ 5110(b)(1)—namely, one that does not encourage the diligent prosecution of a claim by barring a claimant from 

seeking relief after the statutory period elapses and, instead, establishes an element of the claim itself. Instead, 

cases applying Irwin’s presumption have all involved a 

time limit that functions as a statute of limitations by foreclosing a plaintiff from seeking relief once that time has 

passed. See, e.g., United States v. Kwai Fun Wong, 135 S. 

Ct. 1625 (2015) (two-year time limit for bringing a tort 

claim against the government); Holland v. Florida, 560 

U.S. 631 (2010) (one-year period for filing a petition for federal habeas relief); Scarborough v. Principi, 541 U.S. 401 

(2004) (30-day deadline for filing an application for attorney’s fees under the Equal Access to Justice Act); Bailey, 

160 F.3d at 1363–64 (120-day time limit to file notice of appeal with the Veterans Court); Cloer, 654 F.3d at 1341–42 

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ARELLANO v. MCDONOUGH 31

(36-month deadline to file a petition under the Vaccine 

Act). 

Mr. Arellano and Judge Dyk point to a statute governing Social Security disability insurance benefits, 42 U.S.C. 

§ 423(b), which states: “An individual who would have 

been entitled to a disability insurance benefit for any 

month had he filed application therefor before the end of 

such month shall be entitled to such benefit if such application is filed before the end of the 12th month immediately 

succeeding such month.” In other words, this provision 

provides that qualifying claimants may receive retroactive 

benefits up to a year prior to the date of application. But 

as Mr. Arellano and amici concede, courts have so far declined to find equitable exceptions available for this statutory period. See Appellant’s Suppl. Br. 45–49; MilitaryVeterans Advocates Amicus Br. 8; see also Shepherd ex rel. 

Shepherd v. Chater, 932 F. Supp. 1314, 1318 (D. Utah 

1996) (“Courts have uniformly refused to find equitable exceptions to the statutory limit on retroactive benefits.”). 

Moreover, several cases explain that “filing [an application 

within § 423(b)’s one year period] is a substantive condition 

of eligibility” for retroactive Social Security benefits, rather 

than a statute of limitations that may be equitable tolled. 

See Yeiter v. Sec’y of Health & Hum. Servs., 818 F.2d 8, 10 

(6th Cir. 1987) (explaining that appellant was not entitled 

to retroactive benefits from an earlier date because she had 

not filed an application within 12 months of that date, and 

“filing is a substantive condition of eligibility”); Sweeney v. 

Sec’y of Health, Ed. & Welfare, 379 F. Supp. 1098, 1100 

(E.D.N.Y. 1974) (declining to apply equitable exceptions 

based on physical disability to award retroactive benefits 

because “the filing of an application [is] a condition precedent to payment of benefits”). While courts have yet to analyze the availability of equitable tolling for this statute 

under the Irwin framework, neither Mr. Arellano nor amici 

argue that Irwin compels a different result. See MilitaryVeterans Advocates Amicus Br. 10 (“Nonetheless, the 

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32 ARELLANO v. MCDONOUGH

reasoning of these courts points toward the conclusion that 

Irwin’s presumption of equitable tolling would be rebutted 

in the context of retroactive Social Security benefits under 

§§ 402(j) and 423.”). 

Judge Dyk nonetheless contends that § 423(b) is not 

only a “statute of limitations,” but that its approach to 

claims involving retroactive benefits is “not unusual” in 

government benefit programs, which purportedly “often” 

permit claimants to recover future benefits while establishing a statute of limitations for past benefits. See Dyk Op. 

at 8. He cites a single district court case for this proposition, see Begley v. Weinberger, 400 F. Supp. 901, 911 (S.D. 

Ohio 1975), which merely opines in passing that § 423(b) is 

a “statute of limitations” for “retroactive disability insurance benefits.” Begley, however, does not discuss equitable 

tolling, and its holding does not rely on its characterization 

of § 423(b) as a statute of limitations. In the 46 years since 

Begley was decided, no opinion has cited it for the proposition that § 423(b) is a statute of limitations, until Judge 

Dyk’s opinion in this appeal. Nor are we aware of any other 

case characterizing § 423(b) as a “statute of limitations.” 

Section 423(b) thus fails to establish a background principle of equitable tolling applicable to § 5110(b)(1).6

6 If § 423(b) were deemed a statute of limitations, as 

Judge Dyk contends, such a determination would be a trailblazing event, making equitable tolling potentially available (absent congressional intent otherwise) in large swaths 

of Social Security cases involving retroactive benefits, contrary to what courts had uniformly held pre-Irwin. Even 

more troubling is Judge Dyk’s assertion that government 

benefits programs “often” include “statutes of limitations” 

for retroactive benefits. If this too is accurate, then the 

ramification of his reasoning is that equitable tolling could 

potentially apply to many, if not all, of those statutes 

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ARELLANO v. MCDONOUGH 33

Mr. Arellano responds that a background principle of 

law applying equitable tolling to functionally similar statutes is not necessary for Irwin’s presumption to apply to 

§ 5110(b)(1). Appellant’s Reply Br. 13–14. He contends 

that Scarborough expressly rejected any such requirement 

by explaining that “it is hardly clear Irwin demands a precise private analogue,” especially in “matters such as the 

administration of benefits programs.” 541 U.S. at 422; see 

also id. (“Because many statutes that create claims for relief against the United States or its agencies apply only to 

Government defendants, Irwin’s reasoning would be diminished were it instructive only in situations with a readily identifiable private-litigation equivalent.” (emphasis 

added)). But seeking a background principle of law that 

demonstrates equitable tolling is not exclusive to statutes 

of limitations is a far cry from requiring a “precise private 

analogue.” Scarborough itself is instructive on this point. 

There, the Supreme Court considered whether a timely application for attorneys’ fees under the Equal Access to Justice Act (EAJA) may be amended after the 30-day filing 

deadline expired to cure a defect in the application. The 

Court held that a curative amendment should be allowed 

based on the “relation back” doctrine, which permits a later 

amendment to relate back to the day of the original filing 

under certain circumstances. In doing so, the Court rejected an argument that the relation back doctrine is limited to its codification in the Federal Rules of Civil 

Procedure, which governs only amended district court 

“pleadings” and not EAJA fee applications. See id. at 417–

18. While not requiring “a precise private [litigation] analogue,” the Court observed that (1) it had previously applied the relation back doctrine in “analogous settings” to 

fee applications; and (2) the doctrine itself predated the 

(assuming Irwin’s presumption has not been rebutted), 

thereby opening the door for retroactive benefits in numerous different statutory schemes. 

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34 ARELLANO v. MCDONOUGH

Federal Rules and had “its roots in [the] former federal equity practice” of the courts. Id. at 417–18. Rather than 

rejecting the requirement for a background principle of 

law, the Court’s application of the relation back doctrine in 

the context of an EAJA fee application was premised on 

just such a principle—namely, the historical practice of the 

relation back doctrine outside the limited context of district 

court pleadings. Here, however, courts have applied the 

presumption of equitable tolling only to statutes of limitations that run once a cause of action accrues, and Mr. Arellano has not identified a case or background principle of 

law demonstrating otherwise. 

2

The language and administrative context of 

§ 5110(b)(1), moreover, are unlike that of any statute of 

limitations we have seen. Neither Irwin, nor any of the 

cases in this line, considered a statute of limitations having 

“effective date” language. At the same time, § 5110(b)(1) 

does not use the typical statute-of-limitations language establishing when a plaintiff must file an action against a defendant in a tribunal or else lose the claim—the setting 

addressed by all statutory provisions treated as statutes of 

limitation in the Irwin line. 

Section 5110(b)(1) instead addresses a structurally distinct setting—i.e., filing an initial claim with a federal 

agency to obtain monetary benefits from that agency, 

wherein the claim’s receipt date determines the amount of 

awardable benefits but not whether the claim is barred. 

Unlike the traditional context in which a statute of limitations operates, the relevant “defendant” and “tribunal” for 

§ 5110(b)(1) are one and the same (the VA), and the “defendant” has yet to violate any legal duty owed to the claimant that would give rise to a cause of action. While Judge 

Dyk asserts that the Supreme Court and several circuits 

have found equitable tolling applicable to “time requirements in administrative agency proceedings,” see Dyk Op. 

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ARELLANO v. MCDONOUGH 35

at 3, none of the cases he cites address the type of agency 

proceedings relevant here. These cases instead involve filing deadlines for administrative complaints, which address 

the same structural setting as any statute of limitations, 

wherein a complainant seeking redress for a respondent’s 

breach of duty before an independent tribunal. Cloer, as 

previously explained, involved a deadline for filing a petition before a federal court and not an agency. See 42 U.S.C. 

§ 300aa–11(a)(1). This deadline is effectively no different 

than a traditional statute of limitations that establishes a 

period in which a plaintiff may sue a government defendant in federal court. Similarly, Zipes, Kratville v. Runyon, 

90 F.3d 195, 198 (7th Cir. 1996), and Farris v. Shinseki, 

660 F.3d 557, 563 (1st Cir. 2011), which all relate to the 

deadline for filing a charge of discrimination with the 

EEOC, address a setting in which an injured complainant 

seeks redress before a separate entity (the EEOC) with the 

authority to address the asserted breach of duty by the employer, whether through adjudication, enforcement, or 

lesser measures. Thus, none of these cases speak to filing 

an initial claim with a federal agency to obtain monetary 

benefits from that agency, and we are unaware of any case 

holding that a provision with language or operational context similar to § 5110(b)(1) is a statute of limitations. 

Section 5110(b)(1), for these additional reasons, would 

not have looked like a statute of limitations to Congress, 

meaning we cannot presume that Congress intended for 

this provision to carry the default feature of equitable tolling. The effective-date provision is therefore not a statute 

of limitations but merely determines the starting date for 

the right to payment on a veteran’s benefits claim. Because 

no background principle of law establishes that we may equitably toll such a statutory provision, Irwin’s presumption 

is inapplicable to § 5110(b)(1)’s effective date provision. 

Our reasoning here is consistent with Andrews’ longstanding holding that principles of equitable tolling are inapplicable to the one-year period in § 5110(b)(1), see 351 F.3d at 

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36 ARELLANO v. MCDONOUGH

1137–38, our equally divided court today leaves that holding undisturbed. 

E

Although § 5110(b)(1) is not a statute of limitations 

amenable to equitable tolling, even if Irwin’s presumption 

were to apply, equitable tolling would nonetheless be unavailable because it is “inconsistent with the text of the relevant statute.” Young, 535 U.S. at 49 (quoting United 

States v. Beggerly, 524 U.S. 38, 48 (1998)). “[T]he word ‘rebuttable’ means that the presumption is not conclusive,”

and “[s]pecific statutory language, for example, could rebut 

the presumption by demonstrating Congress’ intent to the 

contrary.” John R. Sand & Gravel Co., 552 U.S. at 137–38.

Here, Irwin’s presumption—were it to apply—would be rebutted by Congress’ highly detailed statutory scheme dictating specific legislative choices for when a veteran’s claim 

may enjoy an effective date earlier than the date it was received by the VA.

There are several ways to rebut the presumption of equitable tolling, all of which seek to answer Irwin’s “negatively phrased question: “Is there good reason to believe 

that Congress did not want the equitable tolling doctrine to 

apply?” See Brockamp, 519 U.S. at 350. One way “is to 

show that Congress made the time bar at issue jurisdictional.” Kwai Fun Wong, 135 S. Ct. at 1631. Another way 

is to demonstrate that the statutory text precludes equitable tolling. See Brockamp, 519 U.S. at 352; Beggerly, 524 

U.S. at 48. Additionally, the statutory history and administrative context can demonstrate that Congress did not intend for equitable tolling to apply. See Auburn, 568 U.S. at 

159–60. We address each in turn.

Neither party here argues that § 5110(b)(1)’s effectivedate provision is jurisdictional. See Appellant’s Supp. Br. 

24–28; Appellee’s Supp. Br. 57–60. And for good reason. 

Nothing in § 5110 purports to define a tribunal’s jurisdiction, and the filing of a benefits claim more than one year 

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after discharge does not deprive any tribunal of jurisdiction 

to adjudicate that claim. Cf. Henderson, 562 U.S. at 438

(finding no clear indication that Congress intended for 

§ 7266(a)’s 120-day filing deadline for Veterans Court appeals to be jurisdictional where the statute “does not speak 

in jurisdictional terms or refer in any way to the jurisdiction of the Veterans Court” (cleaned up)). Filing a claim 

more than a year after discharge merely means that a provision of § 5110 other than § 5110(b)(1) governs the claim’s 

effective date. 

But concluding that § 5110(b)(1)’s effective date provision is nonjurisdictional does not end our inquiry because 

“Congress may preclude equitable tolling of even a nonjurisdictional statute of limitations.” See Kwai Fun Wong, 

135 S. Ct. at 1631 n.2; see also Auburn, 568 U.S. at 149

(holding that “the presumption in favor of equitable tolling 

does not apply” to a nonjurisdictional agency appeal deadline given the statutory history and administrative context); Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 

(2019) (the mere fact that a statutory provision “lacks jurisdictional force . . . does not render it malleable in every 

respect,” for such provisions may nonetheless be “mandatory” and “not susceptible [to] equitable [tolling]”). 

“Whether a rule precludes equitable tolling turns not on its 

jurisdictional character but rather on whether the text of 

the rule leaves room for such flexibility.” Id. (emphasis 

added). We therefore look to the statutory text to discern 

whether Congress intended to displace the general availability of equitable tolling with its own preferred regime of 

concrete deadlines. 

Section 5110 begins with the default rule: “Unless specifically provided otherwise in this chapter, the effective 

date of an award . . . shall not be earlier than the date of 

receipt of application therefor.” § 5110(a)(1) (emphasis 

added). Section 5110(a)(1), together with § 5101(a)’s requirement that a claim “must be filed in order for benefits 

to be paid or furnished,” establishes the baseline rule that 

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38 ARELLANO v. MCDONOUGH

no benefits may accrue or be awarded before a claim asserting the right to such benefits is filed, “unless specifically 

provided” for by statute. Section 5110 then proceeds to list 

more than a dozen detailed exceptions to the default rule 

that permit an earlier effective date and, as a result, additional benefits accruing up to one year before the VA receives the claim. Section 5110(b)(1)’s day-after-discharge 

provision is one such enumerated exception. By mandating 

that any exception to the default rule must be provided for 

“specifically” and “in this chapter,” the most natural reading of § 5110 is that Congress implicitly intended to preclude the general availability of equitable tolling by 

explicitly including a more limited, specific selection of equitable circumstances under which a veteran is entitled to 

an earlier effective date and specifying the temporal extent 

of the exceptions for those circumstances. See TRW Inc. v. 

Andrews, 534 U.S. 19, 28 (2001). In other words, the text 

of § 5110 makes clear that Congress did not intend for the 

VA or the courts to create additional exceptions other than 

those choices it “specifically provided” in the statute. Because none of § 5110’s specifically enumerated exceptions, 

nor any other provision “of this chapter,” provide for equitable tolling of § 5110(b)(1)’s one-year period, such tolling 

is unavailable as it is not “specifically provided” for “in this 

chapter.” 

Mr. Arellano and Judge Dyk respond that courts have 

construed statutory language far more imperative than 

that of § 5110(a)(1) to permit equitable tolling. Specifically, they rely on Kwai Fun Wong’s analysis of the Federal 

Tort Claims Act, which states that “[a] tort claim against 

the United States shall be forever barred unless it is presented [to the agency] within two years . . . or unless action 

is begun within six months.” 28 U.S.C. § 2401(b) (emphasis 

added). There, the Supreme Court held that the phrase 

“shall be forever barred,” though “mandatory” and “emphatic,” did not render the filing deadline at issue jurisdictional and foreclosed from equitable tolling. Kwai Fun 

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ARELLANO v. MCDONOUGH 39

Wong, 135 S. Ct. at 1632–33. But this argument misses the 

mark. Kwai Fun Wong stands for the unremarkable proposition that Irwin’s presumption is not rebutted merely because the statutory text “reads like an ordinary, run-of-themill statute of limitations” to bar relief unless a claim is 

brought within a specified amount of time. Id. at 1633 

(quoting Holland, 560 U.S. at 647). Holding otherwise 

would have effectively eviscerated Irwin’s presumption because, as the Court explained, most statutes of limitations 

are framed in that manner. Id. at 1632. The Court clarified that “Congress must do something special, beyond setting an exception-free deadline,” to prohibit a court from 

equitably tolling the deadline. Id. Congress did just that 

here: not only is § 5110(b)(1)’s one-year period itself an exception to the default effective-date rule, § 5110 further 

provides numerous other detailed, technical exceptions to 

the default effective-date rule, thereby creating a catalog of 

congressional choices that foreclose courts from recognizing any additional, unwritten exceptions. 

Indeed, § 5110’s enumeration of a wide range of specific 

exceptions to the default rule hews closer to the “highly detailed” and “technical” exceptions that foreclosed equitable 

tolling in Brockamp than to Kwai Fun Wong’s “fairly simple language [that] can often [be] plausibly read as containing an implied ‘equitable tolling’ exception.” Brockamp, 

519 U.S. at 350. At issue in Brockamp was a statute reciting time limits for taxpayers to file tax refund claims. Just 

as with § 5110, the Brockamp statute provided a default 

rule with “basic time limits” for filing such claims, followed 

by “very specific exceptions” establishing “special time 

limit rules” for certain claims relating to precise circumstances (“operating losses, credit carrybacks, foreign taxes, 

self-employment taxes, worthless securities, and bad 

debts”). Id. at 351–52. The Court concluded that the statute’s “detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the 

explicit listing of exceptions, taken together, indicate . . . 

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40 ARELLANO v. MCDONOUGH

that Congress did not intend courts to read other unmentioned, open-ended, ‘equitable’ exceptions into the statute 

that it wrote,” thereby rebutting the presumption of equitable tolling. Id. at 352. The same reasoning applies here, 

where Congress has explicitly provided more than a dozen 

detailed exceptions to § 5110(a)(1)’s default rule prohibiting an effective date earlier than the date of receipt. And 

“[w]here Congress explicitly enumerates certain exceptions 

to a general prohibition, additional exceptions are not to be 

implied, in the absence of a contrary legislative intent.” 

TRW, 534 U.S. at 28 (quoting Andrus v. Glover Constr. Co., 

446 U.S. 608, 616–17 (1980))7; see also Rotkiske v. Klemm, 

140 S. Ct. 355, 360–61 (2019) (“[i]t is a fundamental principle of statutory interpretation that absent provisions cannot be supplied by the courts” because doing so “is not a 

construction of a statute, but, in effect, an enlargement of 

it by the court” (internal quotation marks omitted)). 

The implication that § 5110’s explicitly enumerated exceptions preclude the judicial recognition of additional equitable exceptions can, of course, be overcome by “contrary 

legislative intent.” See TRW, 534 U.S. at 28 (quoting Andrus, 446 U.S. at 616–17). But we see nothing in the statutory text, structure, or history that persuades us that

7 Mr. Arellano also argues that the principle of statutory construction quoted from TRW applies only where it 

would render one of those exceptions insignificant or superfluous. E.g., Appellant’s Supp. Reply Br. 21–22. But while 

that principle may be strongest in such a case, it is clearly

instructive even where no exception would be effectively 

read out of the statute. See Andrus, 446 U.S. at 616–17

(declining to recognize an additional exception where statute recites explicitly enumerated exceptions to a general 

prohibition, even where no other exception would be rendered superfluous by the addition); United States v. Smith, 

499 U.S. 160, 166 (1991) (same). 

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ARELLANO v. MCDONOUGH 41

such an intent exists for § 5110. To the contrary, § 5110’s 

enumerated exceptions confirm that Congress has already 

considered which equitable considerations may provide a 

retroactive effective date and declined to provide the relief 

Mr. Arellano seeks. These exceptions cover specific circumstances beyond the veteran’s control that may delay 

the filing of a claim, such as: discharge from the military, 

§ 5110(b)(1); increase in the severity of a disability, 

§ 5110(b)(3); the “permanent[] and total[] disab[ility]” of a 

veteran, § 5110(b)(4); death of a spouse, § 5110(d); and correction of military records, § 5110(i).8 

More importantly, § 5110(b)(4) addresses the precise 

circumstances that prevented Mr. Arellano—a “veteran 

8 Though several of § 5110’s enumerated exceptions 

address equitable circumstances in which the filing of a 

claim may be delayed, Judge Dyk nonetheless contends 

that no provision of § 5110 other than § 5110(b)(4) 

“speak[s] to equitable tolling,” and § 5110(b)(4) alone “can 

hardly be read as evincing a desire by Congress to eliminate equitable tolling” generally as to disability compensation. Dyk Op. at 16. He does not explain why, if retroactive 

effective date provisions are statutes of limitations (as he

insists), provisions analogous to § 5110(b)(4) that permit an 

earlier effective date when a claimant delays filing a claim 

due to the death of a spouse or parent, an increase in disability severity, or even discharge from military service do 

not likewise “speak to equitable tolling.” Judge Dyk appears to argue that Irwin’s presumption may not be rebutted unless a statute explicitly references more than one 

circumstance for which courts have traditionally permitted 

equitable tolling (e.g., defective pleadings, deception 

through defendant’s misconduct, severe disability) but 

cites no support for such a proposition. Nor would the enumerated exceptions in Brockamp satisfy his heightened 

standard for rebutting Irwin’s presumption.

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42 ARELLANO v. MCDONOUGH

who is permanently and totally disabled”—from filing his 

claim earlier, but in the context of disability pension, see 38 

U.S.C. ch. 15, and not the disability compensation at issue 

here, id., ch. 11. Section 5110(b)(4) provides a one-year 

grace period for disability pension filings by a permanently 

and totally disabled veteran who was “prevented by a disability from applying for disability pension for a period of 

at least 30 days beginning on the date on which the veteran 

became permanently and totally disabled.” This provision 

demonstrates that Congress considered the very circumstances that delayed Mr. Arellano from filing a claim and 

nonetheless declined to afford equitable relief beyond what 

was already provided in § 5110(b)(1). It is not our role as a 

court to second-guess Congress’ judgment as to when such 

equitable exceptions are warranted. To decide otherwise 

would amount to “[a]textual judicial supplementation,” 

which “is particularly inappropriate when, as here, Congress has shown that it knows how to adopt the omitted 

language or provision” that would equitably toll 

§ 5110(b)(1) for permanently and totally disabled veterans. 

See Rotkiske, 140 S. Ct. at 361; cf. Hamdan v. Rumsfeld, 

548 U.S. 557, 578 (2006) (“A familiar principle of statutory 

construction . . . is that a negative inference may be drawn 

from the exclusion of language from one statutory provision 

that is included in other provisions of the same statute.”). 

We therefore decline, as the Supreme Court did in 

Brockamp, to read additional, unwritten equitable exceptions into the statute. 

Though we need not look beyond the unambiguous 

statutory text, the statutory history of § 5110 reinforces 

our conclusion that Congress did not intend for equitable 

tolling to apply to § 5110(b)(1)’s effective date provision. In 

the seventeen years since our court decided Andrews in 

2003, we have repeatedly followed its holding, each time 

reiterating that equitable tolling is inapplicable to § 5110’s 

effective date rules. See Titone v. McDonald, 637 F. App’x 

592, 593 (Fed. Cir. 2016) (per curiam); Butler v. Shinseki, 

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603 F.3d 922, 926 (Fed. Cir. 2010) (per curiam); AF v. Nicholson, 168 F. App’x 406, 408–09 (Fed. Cir. 2006); Ashbaugh v. Nicholson, 129 F. App’x 607, 609 (Fed. Cir. 2005)

(per curiam). Congress has amended § 5110 four times 

since Andrews, and at no point has it expressed disapproval of Andrews and its progeny or otherwise indicated 

that equitable tolling is available under this statute. See 

Auburn, 568 U.S. at 159 (no legislative intent of equitable 

tolling where Congress had amended the relevant statute 

“six times since 1974, each time leaving [the provision at 

issue] untouched” and had never “express[ed] disapproval” 

of the agency’s longstanding regulation setting deadlines). 

To the contrary, Congress’ amendments adding provisions 

§ 5110(a)(2)–(3) under the Veterans Appeals Improvement 

and Modernization Act of 2017 (AMA), Pub. L. No. 115–55, 

§ 2(l), 131 Stat. 1105, 1110, underscore an intent to continue limiting retroactivity to one year. See § 5110(a)(2) (a 

claim receiving an adverse decision retains “the date of the 

filing of the initial application for a benefit” as the effective 

date on appeal if the claim is “continuously pursued” 

within “one year after the date” of the adverse decision); 

§ 5110(a)(3) (the effective date of “supplemental claims received more than one year” after the RO or Board decision 

“shall not be earlier than the date of receipt of the supplemental claim” (emphasis added)). 

The statutory history of § 5110(b)(4) also confirms that 

Congress did not intend to provide more equitable relief 

than what was specifically enumerated in the statute. 

When § 5110(b)(4) was proposed in 1973, Congress explained that “[t]he 1-year period prescribed by the proposal 

. . . is considered reasonable” to address the filing “delays” 

of “permanently and totally disabled” veterans whose “very 

condition upon which entitlement may depend may also 

prevent prompt application for benefit.” See H.R. Rep. No. 

93-398), at 14 (1973) (emphases added). Congress, moreover, remarked that the proposed one-year grace period 

would bring the effective-date rules governing disability 

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44 ARELLANO v. MCDONOUGH

pension into conformity with those already governing disability compensation in § 5110(b)(1) and death benefits in 

§ 5110(d). See id. Because § 5110(b)(4)’s one-year grace 

period was considered a “reasonable” equitable remedy for 

filing delays by permanently and totally disabled veterans, 

this statutory history supports our conclusion that Congress did not intend for equitable tolling of § 5110(b)(1)’s 

analogous one-year grace period. 

While acknowledging that § 5110(b)(4) speaks to equitable tolling and indicates “Congressional willingness to 

delay veterans’ filing obligations where a disability makes 

meeting them difficult or impossible,” see Dyk Op. at 26, 

Judge Dyk nonetheless argues that this provision merely 

signals “a beneficent Congressional act, [and] not a rebuttal of the Irwin presumption,” id. at 16 (citing Cloer, 654 

F.3d at 1343).9 But this ignores Cloer’s precise reasoning. 

Cloer explains that enumerated statutory exceptions do not 

necessarily rebut Irwin’s presumption where those exceptions address a “special need” that is unrelated to equitable 

tolling concerns. See id. Unlike § 5110(b)(4) and other exceptions addressing specific equitable circumstances warranting a delayed claim filing, Cloer concluded that the two 

exceptions to the Vaccine Act’s 36-month filing deadline 

are driven by “specific concern[s] unrelated to equitable 

tolling considerations,” such as minimizing “confusion” and 

addressing “scientific advances in medicine,” and thus do 

not “show a desire by Congress to bar equitable tolling.” Id.

at 1343–44; see also, id. at 1343 (“Individual factual 

9 Despite maintaining that § 5110(b)(4) does not signal congressional intent to preclude equitable tolling beyond the statutory limits, Judge Dyk nonetheless claims 

this provision demonstrates congressional intent to deny 

Mr. Arellano and other disabled claimants with a caregiver 

or other representative equitable relief beyond what is expressly provided by statute. See Dyk Op. at 22–24.

Case: 20-1073 Document: 96 Page: 47 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 45

circumstances, the first of equitable tolling claims, played 

no role in enactment of this provision.”). 

Mr. Arellano and Judge Dyk also argue that § 5110’s 

listed exceptions are irrelevant because they are exceptions 

to § 5110(a)(1)’s default effective-date rule, and not 

§ 5110(b)(1)’s one-year grace period. In their view, the 

question is whether § 5110(b)(1)’s one-year period can be 

tolled, and because that period does not itself have any enumerated exceptions, precedent such as TRW and Brockamp 

are not controlling. But this argument ignores that tolling 

§ 5110(b)(1)’s one-year grace period would operate as an exception to not only § 5110(b)(1)’s one-year grace period but 

also to § 5110(a)(1)’s default rule. This follows because, as 

mentioned, § 5110(b)(1) is itself an equitable exception to 

§ 5110(a)(1)’s default rule. Cf. Beggerly, 524 U.S. at 48 (declining to further toll a statute “providing that the statute 

of limitations will not begin to run until plaintiff ‘knew or 

should have known of [the government’s] claim,’ [because 

it] has already effectively allowed for equitable tolling”). It 

would be odd to conclude that, because Congress chose to 

soften the default effective-date rule by providing specific 

enumerated equitable exceptions, it has somehow opened 

the door for courts to create their own exceptions-to-theexception through equitable tolling. 

Mr. Arellano further argues that the relevant administrative context and subject matter of § 5110(b)(1)—veterans’ benefits—support equitable tolling. We acknowledge 

that Congress is more likely to have intended equitable 

tolling for statutes “designed to be ‘unusually protective’ of 

claimants” where “laymen, unassisted by trained lawyers, 

initiate the process.” See Auburn, 568 U.S. at 160 (citing 

Bowen v. City of New York, 476 U.S. 467, 480 (1986) and 

Zipes, 455 U.S. at 397). And it is undoubtedly true that the 

statutory scheme for veterans’ benefits is “uniquely proclaimant [in] nature,” Hensley v. West, 212 F.3d 1255, 1262 

(Fed. Cir. 2000), and imbued with “[t]he solicitude of 

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46 ARELLANO v. MCDONOUGH

Congress for veterans,” United States v. Oregon, 366 U.S. 

643, 647 (1961). 

But these general background principles cannot override the unambiguous meaning of the statutory text. See

Kisor v. Wilkie, 139 S. Ct. 2400, 2415–16 (2019) (ambiguity 

often resolved by full consideration of “text, structure, history, and purpose”); cf. Andrus, 446 U.S. at 618–19 

(“[A]lthough the rule by which legal ambiguities are resolved to the benefit to the Indians is to be given the broadest possible scope, a canon of construction is not a license 

to disregard clear expressions of . . . congressional intent.” 

(cleaned up)); see also Conn. Nat’l Bank v. Germain, 

503 U.S. 249, 253 (1992) (“canons of construction are no 

more than rules of thumb,” and the text is the “one, cardinal canon” a court must turn to “before all others”). Here, 

for the reasons we have set forth, the comprehensiveness 

of the congressionally enumerated exceptions to the 

§ 5110(a)(1) default rule leave no room for additional judicially recognized exceptions. Similarly, the language, context, and characteristics of the § 5110(b)(1) time provision 

leave no room for reasonably concluding that Congress 

viewed it as a statute of limitations. Those conclusions 

leave no ambiguity. Where, as here, “the words of a statute 

are unambiguous, this first step of the interpretive inquiry 

is our last.” Rotkiske, 140 S. Ct. at 360. 

We recognize there are circumstances under which it 

may seem unjust to preclude equitable tolling. But where

the statutory text demonstrates “a clear intent to preclude 

tolling, courts are without authority to make exceptions 

merely because a litigant appears to have been diligent, 

reasonably mistaken, or otherwise deserving.” Nutraceutical, 139 S. Ct. at 714; see also California v. Sierra Club, 

451 U.S. 287, 297 (1981) (“The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that 

Congress did not intend to provide.”). “Under the system 

of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of 

Case: 20-1073 Document: 96 Page: 49 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 47

legislation.” Ferguson v. Skrupa, 372 U.S. 726, 729 (1963); 

see also United States v. First Nat’l Bank of Detroit, 

234 U.S. 245, 260 (1914) (“The responsibility for the justice 

or wisdom of legislation rests with the Congress, and it is 

the province of the courts to enforce, not to make, the 

laws.”).

For these reasons, equitable tolling is inconsistent with 

Congress’ intent in enacting § 5110(b)(1), and Irwin’s presumption—were it to apply in this instance—would have 

been rebutted. 

F

Lastly, we briefly address Judge Dyk’s conclusion that 

equitable tolling is unavailable on the undisputed facts of 

Mr. Arellano’s appeal. See Dyk Op. at 26 n.20. Because 

both the Board and the Veterans Court concluded that equitable tolling was categorically unavailable for 

§ 5110(b)(1) as a matter of law, neither had reason to consider whether the specific facts of Mr. Arellano’s case justified equitable tolling. Nor did they consider whether 

further factual development would be warranted if equitable tolling were not categorically unavailable. In the event 

of a reversal, Mr. Arellano has requested that we remand 

this case for further proceedings so he can present why his 

factual circumstances warrant equitable tolling. See Appellant’s Suppl. Br. 49; Appellant’s Br. 32. The government, for its part, has never argued in this court that we 

can—or should—affirm the denial of equitable tolling on 

the facts of Mr. Arellano’s case; it has only argued that equitable tolling is unavailable as a matter of law. 

However, Judge Dyk contends that we may determine 

the application of equitable tolling in the first instance 

“[w]here the facts are undisputed, [and] all that remains is 

a legal question, even if that legal question requires the application of the appropriate standard to the facts of a particular case.” Dyk Op. at 26 n.20 (quoting Former 

Employees of Sonoco Prod. Co. v. Chao, 372 F.3d 1291, 

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48 ARELLANO v. MCDONOUGH

1294–95 (Fed. Cir. 2004)). But neither Former Employees, 

nor any case cited within, holds that we may apply a legal 

standard to the facts where the Veterans Court (and the 

Board): (1) did not address any of those facts in denying

equitable tolling; (2) made no factual findings on this issue;

(3) did not consider whether further factual development 

may be warranted to adequately answer that question; and 

(4) did not consider Judge Dyk’s rigid “caregiver rule” that 

bars equitable tolling for totally and permanently disabled 

veterans who have a caregiver. For that reason, it is unsurprising that Mr. Arellano has not alleged “any special 

circumstances” in relation to his caregiver, as Judge Dyk

observes, since no one until today had suggested that having a caregiver creates a default presumption against equitable tolling in this context or in any other setting where 

equitable tolling can arise. Thus, even if Irwin’s presumption of equitable tolling were to apply to § 5110(b)(1), which 

it does not, we would remand this case for further factual 

development—which is all the more justified because Mr. 

Arellano has expressly requested this outcome under such 

circumstances and no party has argued that we may affirm 

the Veterans Court’s decision on factual grounds. 

CONCLUSION

For the aforementioned reasons, and consistent with 

our longstanding holding in Andrews, § 5110(b)(1) is not a 

statute of limitations subject to Irwin’s presumption of equitable tolling. But even if Irwin’s presumption were to apply, it would be rebutted by the statutory text of § 5110, 

which evinces clear intent from Congress to foreclose equitable tolling of § 5110(b)(1)’s one-year period. 

Case: 20-1073 Document: 96 Page: 51 Filed: 06/17/2021
United States Court of Appeals 

for the Federal Circuit ______________________

ADOLFO R. ARELLANO,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2020-1073

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 18-3908, Judge Michael P. Allen.

______________________

Decided: June 17, 2021

______________________

DYK, Circuit Judge, with whom NEWMAN, O’MALLEY, 

REYNA, WALLACH, and STOLL, Circuit Judges, join, concurring in the judgment.

The court here agrees that Mr. Arellano’s claim for 

benefits was untimely, but the court is equally divided on

the question whether 38 U.S.C. § 5110(b)(1) is subject to 

equitable tolling. Judge Chen (joined by Chief Judge 

Moore and Judges Lourie, Prost, Taranto, and Hughes) 

would hold that the section is not a statute of limitations, 

and, even if it were, the presumption of equitable tolling

under Irwin has been rebutted. An equal number of judges 

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2 ARELLANO v. MCDONOUGH

(Judges Newman, O’Malley, Reyna, Wallach, Stoll, and 

myself) join this opinion and would hold that § 5110(b)(1) 

is a statute of limitations subject to equitable tolling, that 

the Irwin presumption of equitable tolling applies, but that 

§ 5110(b)(1) cannot be equitably tolled for mental disability

in the circumstances of this case.

I

The effective date of an award of service-connected benefits is governed by 38 U.S.C. § 5110. “Unless specifically 

provided otherwise in this chapter, the effective date of an 

award . . . shall be fixed in accordance with the facts found, 

but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a)(1). An exception to 

§ 5110(a)(1) is available under § 5110(b)(1), which provides:

The effective date of an award of disability compensation to a veteran shall be the day following the 

date of the veteran’s discharge or release if application therefor is received within one year from 

such date of discharge or release.

38 U.S.C. § 5110(b)(1); see also 38 C.F.R. § 3.400(b)(2)(i)

(2020) (“Day following separation from active service or 

date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of 

claim, or date entitlement arose, whichever is later.”).

Here, the claim for benefits was filed on June 3, 2011, 

thirty years after the veteran’s discharge, and benefits 

were allowed as of the date the claim was filed, June 3, 

2011. The question is whether § 5110(b)(1) may be equitably tolled based on mental disability so that the veteran 

can receive retroactive benefits to the date his entitlement 

arose, which was within a year of his discharge, thirty

years earlier.

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ARELLANO v. MCDONOUGH 3

II

“Time requirements in lawsuits between private litigants are customarily subject to ‘equitable tolling.’” Irwin 

v. Dep’t of Veterans Affs., 498 U.S. 89, 95 (1990) (quoting 

Hallstrom v. Tillamook Cnty., 493 U.S. 20, 27 (1989)). Irwin held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants 

should also apply to suits against the United States.” Id.

at 95–96.

The Supreme Court and several circuits have found equitable tolling to be applicable to time requirements in administrative agency proceedings. See Zipes v. Trans World 

Airlines, Inc., 455 U.S. 385, 393 (1982) (“[F]iling a timely 

charge of discrimination with the [Equal Employment Opportunity Commission] is . . . a requirement that, like a 

statute of limitations, is subject to . . . equitable tolling.”); 

Farris v. Shinseki, 660 F.3d 557, 563 (1st Cir. 2011) (citation omitted) (“[F]ailure to comply with an agency’s applicable time limit may expose the plaintiff’s federal law suit 

to dismissal . . . subject to narrowly applied equitable doctrines such as tolling . . . .”); Kratville v. Runyon, 90 F.3d 

195, 198 (7th Cir. 1996) (“Because the deadlines for filing 

administrative complaints operate as statutes of limitations, the doctrines of equitable tolling and estoppel apply.”). The Supreme Court has “never suggested that the 

presumption in favor of equitable tolling is generally inapplicable to administrative deadlines,” Sebelius v. Auburn 

Reg’l Med. Ctr., 568 U.S. 145, 162 (2013) (Sotomayor, J., 

concurring), and has suggested that Irwin can apply to 

“matters such as the administration of benefit programs,” 

Scarborough v. Principi, 541 U.S. 401, 422 (2004).

III

The framework governing the Irwin presumption of equitable tolling has two steps.

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4 ARELLANO v. MCDONOUGH

The first step is determining whether the statute is a 

statute of limitations, in which case the Irwin presumption 

will apply. Courts “have only applied [the] presumption [of 

equitable tolling] to statutes of limitations,” Lozano v. Montoya Alvarez, 572 U.S. 1, 13–14 (2014), or a “filing period” 

that “operate[s] as a statute of limitations,” Zipes, 455 U.S. 

at 394. The second step is determining if the presumption 

has been rebutted.

A

Judge Chen at the first step would hold that 38 U.S.C. 

§ 5110(b)(1) is not a statute of limitations or otherwise subject to tolling, and he would reaffirm our Andrews panel 

decision in this respect. I think this view is quite clearly

incorrect.

Judge Chen urges that the limitations period on past 

benefits for disability compensation in § 5110(b)(1) is not a 

statute of limitations because the one-year period “[1] is not 

triggered by harm from the breach of a legal duty owed by 

the opposing party, and [2] it does not start the clock on 

seeking a remedy for that breach from a separate remedial 

entity.” Chen Op. 13 (citing 1 Calvin W. Corman, 

LIMITATION OF ACTIONS, § 6.1, at 370 (1991)). In Judge 

Chen’s view, § 5110(b)(1) is not a statute of limitations because “there is no duty, or breach of duty, at the onset of 

§ 5110(b)(1)’s one-year period (i.e., the day after discharge)” 

and “no remedial authority separate from the [Department 

of Veterans Affairs (“VA”)] is involved in an initial application for veterans’ benefits.” Id. at 13–14.

Judge Chen’s opinion is bereft of support for these supposed rules. The cited treatise contains only general language describing general principles of statutes of 

limitations. See Corman, supra, § 6.1, at 370 (“The earliest 

opportunity for a complete and present cause of action is 

that moment when the plaintiff has suffered a legally recognizable harm at the hands of the defendant, such as the 

time of contract breach or the commission of a tortious 

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ARELLANO v. MCDONOUGH 5

wrong.”). Judge Chen cites no case, and I am aware of 

none, holding that statutes of limitations are limited as 

Judge Chen suggests.1

The cases establish that there are no such rules. The

notion that statutes of limitations are triggered only by a 

breach of legal duty is quite inconsistent with cases holding 

that a provision barring benefits for failure to file within a 

prescribed period constitutes a statute of limitations, regardless of any alleged breach of duty by the government. 

This has been made clear by Scarborough, where (as noted 

above) the Supreme Court explained that Irwin’s reasoning 

may extend to “the administration of benefit programs.” 

541 U.S. at 422.

A primary example of a no-fault statute of limitations 

is the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), which requires that, for vaccines administered 

after October 1, 1988, a “petition” for “compensation” for a 

vaccine-related injury be filed within 36 months “after the 

date of the occurrence of the first symptom or manifestation of onset . . . of such injury.” 42 U.S.C. § 300aa-16(a)(2).

Vaccine Act claims are not tied to fault by the government. The system established by the Vaccine Act “was ‘intended to be expeditious and fair’ and ‘to compensate 

persons with recognized vaccine injuries . . . without a 

1 Judge Chen relies on Hallstrom, which concerned 

the citizen suit provision of the Resource Conservation and 

Recovery Act of 1976 that required 60 days’ notice before 

filing suit. See 493 U.S. at 22 (citing 42 U.S.C. § 6972(b)(1) 

(1982)). Hallstrom noted in passing that, “[u]nlike a statute of limitations,” the “60-day notice provision is not triggered by the violation giving rise to the action.” Id. at 27. 

The Supreme Court’s characterization of the notice provision at issue in Hallstrom hardly suggests that a violation 

is essential to the existence of statute of limitations.

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6 ARELLANO v. MCDONOUGH

demonstration that a manufacturer was negligent or that 

a vaccine was defective.’” Zatuchni v. Sec’y of Health & 

Hum. Servs., 516 F.3d 1312, 1316 (Fed. Cir. 2008) (quoting 

H.R. Rep. 99-908, at 12, reprinted in 1986 U.S.C.C.A.N. 

6344, 6353).

Under this compensation system, vaccine-injured 

persons may obtain a full and fair award for their 

injuries even if the manufacturer has made as safe 

a vaccine as possible. Petitioners are compensated 

because they suffered harm from the vaccine—even 

a ‘safe’ one—not because they demonstrated 

wrongdoing on the part of the manufacturer.

H.R. Rep. 99-908, at 26, reprinted in 1986 U.S.C.C.A.N. at

6367.

We have nonetheless held en banc that 42 U.S.C. 

§ 300aa-16(a)(2) establishes a statute of limitations subject 

to equitable tolling under Irwin. See Cloer v. Sec’y of 

Health & Hum. Servs., 654 F.3d 1322, 1340–44 (Fed. Cir. 

2011) (en banc); see also id. at 1341 n.9. We held that “[t]he 

statute of limitations begins to run on a specific statutory 

date: the date of occurrence of the first symptom or manifestation of onset of the vaccine-related injury recognized 

as such by the medical profession at large.” Id. at 1340. 

We reached this conclusion because “the plain words of the 

statute trigger the statute of limitations on the date of the 

first symptom or manifestation of onset of the injury 

claimed,” and Congress did not intend for a discovery rule 

to apply. See id. at 1336, 1340. The prescribed period is a 

statute of limitations even though the underlying claim is 

not based on a breach of duty, either by the government or 

the manufacturer. See Zatuchni, 516 F.3d at 1316; H.R. 

Rep. 99-908, at 12, reprinted in 1986 U.S.C.C.A.N. at 6353.

The second of Judge Chen’s factors—the involvement 

of a “separate remedial entity,” Chen Op. 13—is also inconsistent with cases in the administrative context, in which 

the Supreme Court and other courts have made clear that 

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ARELLANO v. MCDONOUGH 7

a statute governing the timeliness of a claim to an agency 

for payment from that agency is a statute of limitations. 

See United States v. Williams, 514 U.S. 527, 534 & n.7 

(1995) (26 U.S.C. § 6511(a) is a “statute of limitations” that 

“bar[s] . . . tardy” tax refund claims filed with the Internal 

Revenue Service); Colvin v. Sullivan, 939 F.2d 153, 156 

(4th Cir. 1991) (referring to 42 U.S.C. § 1320b-2(a), which

provides for a two-year period during which states are permitted to file claims with the federal government for expenditures made in carrying out a state plan under specific 

subchapters of the codification of the Social Security Act, 

as a “statute of limitations”); cf. Warren v. Off. of Pers. 

Mgmt., 407 F.3d 1309, 1316 (Fed. Cir. 2005) (referring to

the two-year period “after the date on which the marriage 

of [a] former spouse . . . is dissolved” to make an election

with the Office of Personal Management to provide a survivor annuity for the former spouse, see 5 U.S.C. 

§ 8339(j)(3), as a “statute of limitations”).

B

Judge Chen offers an alternative theory—that 

§ 5110(b)(1) is not a statute of limitations because it “does 

not eliminate a veteran’s ability to collect benefits for [a 

service-connected] disability,” Chen Op. 13, but instead 

“forgives a veteran’s temporary delay in filing a claim in 

the immediate aftermath of a veteran’s transition back to 

civilian life upon discharge from military service,” id. at 19

(emphasis omitted). In my view, this analysis blinks reality.

The claim for benefits here has two components: (1) a 

retrospective claim for benefits for past disability, and (2) a 

prospective claim for future benefits. The statute imposes 

no statute of limitations for prospective benefits, and a veteran may be entitled to forward-looking benefits after the 

one-year period prescribed by § 5110(b)(1) runs. See Henderson v. Shinseki, 562 U.S. 428, 431 (2011) (“A veteran 

faces no time limit for filing a claim . . . .”). But § 5110(b)(1) 

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8 ARELLANO v. MCDONOUGH

does impose what is clearly a one-year statute of limitations for retrospective claims—making retrospective benefits unavailable unless the claim is filed within one year 

after discharge. Section 5110(b)(1) is a “more limited statute of limitations,” see Young v. United States, 535 U.S. 43, 

48 (2002), applicable only to retrospective benefit claims, 

but it is a statute of limitations nonetheless. Section 5110(b)(1) “is a limitations period because it prescribes 

a period within which certain rights . . . may be enforced.” 

See id. at 47. It bars retroactive benefits if the claim is filed 

more than a year after discharge.

This approach to periods of limitations for claims for 

benefits is not unusual. Government benefits programs often provide that an individual qualifying for benefits may 

recover future benefits once an application is filed but is 

limited in the recovery of past benefits to a set period before 

the filing of the application. One example is the statute 

providing for Social Security disability benefits, which provides no limit on the recovery of future benefits once an application has been filed but imposes a twelve-month 

limitations periods on the recovery of past benefits—in 

other words, a statute of limitations. Begley v. Weinberger, 

400 F. Supp. 901, 911 (S.D. Ohio 1975) (noting a “one-year 

statute of limitations upon the availability of retroactive 

disability insurance benefits” established by 42 U.S.C. 

§ 423(b)).2

2 The cases Judge Chen cites, both decided before Irwin, are not to the contrary. See Chen Op. 31 (citing Yeiter 

v. Sec’y of Health & Hum. Servs., 818 F.2d 8, 10 (6th Cir. 

1987); and then citing Sweeney v. Sec’y of Health, Ed. & 

Welfare, 379 F. Supp. 1098, 1100 (E.D.N.Y. 1974)). 

Yeiter rejected the argument that “Congress did not intend the one-year limit on retroactive benefits [in 42 U.S.C. 

§ 423(b)] to apply where the failure to file for benefits arises 

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ARELLANO v. MCDONOUGH 9

Section 5110(b)(1) is nearly the same as the statutes of 

limitation in copyright actions and patent infringement, 

where the statutes bar recovery for past events if the claim 

is not filed within a specified period, but permit recovery 

for future acts. The copyright limitations period is governed by 17 U.S.C. § 507,3 which the Supreme Court has 

described as a “limitations period [that] allows plaintiffs 

during [the copyright] term to gain retrospective relief running only three years back from the date the complaint was 

filed.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 

663, 672 (2014); see also id. at 670 (describing copyright 

limitations period as a “a three-year look-back limitations 

period”).4 Thus, “the infringer is insulated from liability 

for earlier infringements of the same work.” Id. at 671.

Likewise, § 5110(b)(1) is similar to the limitations period in patent infringement actions, 35 U.S.C. § 286,5

which “represents a judgment by Congress that a patentee 

from the disability itself.” 818 F.2d at 9. Sweeney held that 

“equitable considerations [were] irrelevant” to the application of § 423 “to this case.” 379 F. Supp. at 1100–01. Neither held that § 423(b) is not a statute of limitations.

3 “No civil action shall be maintained under the provisions of this title unless it is commenced within three 

years after the claim accrued.” 17 U.S.C. § 507(b).

4 The copyright statute of limitations has been held 

to be subject to equitable tolling. See Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 340 (5th Cir. 1971) (“[T]he intent of the drafters [of the predecessor of § 507(b)] was that 

the limitations period would affect the remedy only, not the 

substantive right, and that equitable considerations would 

therefore apply to suspend the running of the statute.”).

5 “Except as otherwise provided by law, no recovery 

shall be had for any infringement committed more than six 

years prior to the filing of the complaint or counterclaim for 

infringement in the action.” 35 U.S.C. § 286.

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10 ARELLANO v. MCDONOUGH

may recover damages for any infringement committed 

within six years of the filing of the claim.” SCA Hygiene 

Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. 

Ct. 954, 961 (2017). In so holding, the Supreme Court rejected the argument that § 286 was not a “true statute of 

limitations” because it “runs backward from the time of 

suit.” Id. at 961–62 (citing Petrella, 572 U.S. at 672).6

Judge Chen attempts to distinguish these cases on the 

ground that “§ 5110(b)(1) establishes the effective date of a 

single benefits claim for an ongoing disability, whereas an 

ongoing course of infringement in Petrella and SCA Hygiene comprises a ‘series of discrete infringing acts,’ each of 

which is a distinct harm giving rise to an independent 

claim for relief that starts a new limitations period.” Chen

Op. 20 (quoting Petrella, 572 U.S. at 671–72). The same is 

true here. The claim is not a single benefits claim, but a 

claim for a series of payments allegedly due. See 38 U.S.C. 

§ 1110 (establishing basic entitlement for disability compensation); id. § 1114 (providing monthly rates for disability compensation); id. § 1115 (providing additional 

compensation for dependents); see also Veterans’ Compensation Cost-of-Living Adjustment Act of 2020, Pub. L. 116-

178, 134 Stat. 853 (providing cost-of-living adjustment).

The Supreme Court’s decision in Young, 535 U.S. 43, 

also supports the view that § 5110(b)(1) is a statute of limitations. In Young, the Supreme Court considered whether 

a three-year lookback period provided by § 507 of the Bankruptcy Code was a statute of limitations. See 11 U.S.C. 

§ 507(a)(8)(A)(i). Under this lookback period, “[i]f the IRS 

has a claim for taxes for which the return was due within 

6 The holdings of Petrella and SCA Hygiene addressed whether the provisions were statutes of limitations 

because that affected application of the doctrine of laches. 

See Petrella, 572 U.S. at 686; SCA Hygiene, 137 S. Ct. at 

967.

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ARELLANO v. MCDONOUGH 11

three years before the bankruptcy petition was filed, the 

claim enjoys eighth priority . . . and is nondischargeable in 

bankruptcy.” Young, 535 U.S. at 46. “The period thus encourages the IRS to protect its rights—by, say, collecting 

the debt, or perfecting a tax lien—before three years have 

elapsed.” Id. at 47 (citations omitted). “If the IRS sleeps 

on its rights, its claim loses priority and the debt becomes 

dischargeable.” Id. The Supreme Court acknowledged 

that, “unlike most statutes of limitations, the lookback period bars only some, and not all, legal remedies for enforcing the claim,” id. (footnote omitted), and noted that

“[e]quitable remedies may still be available,” id. at 47 n.1. 

That qualification “ma[de] it a more limited statute of limitations, but a statute of limitations nonetheless” subject to 

equitable tolling. Id. at 48.

In determining that the lookback period was a statute 

of limitations, the Supreme Court found it significant that 

“the lookback period serve[d] the same ‘basic policies [furthered by] all limitations provisions: repose, elimination of 

stale claims, and certainty about a plaintiff’s opportunity 

for recovery and a defendant’s potential liabilities.’” Young,

535 U.S. at 47 (second alteration in original) (quoting 

Rotella v. Wood, 528 U.S. 549, 555 (2000)).

Section 5110(b)(1), like the provision at issue in Young,

serves the same basic policies of limitations periods. It encourages veterans to file for disability compensation benefits within a year of their discharge, or else lose retroactive 

benefits that they would otherwise be entitled to. It limits 

veterans’ “opportunity for recovery” and the government’s 

“potential liabilities,” see Rotella, 528 U.S. at 555, to only

forward-looking benefits if the filing deadline is missed.

Judge Chen attempts to find support in the Supreme 

Court’s Lozano decision. Lozano involved Article 12 of the 

Hague Convention on the Civil Aspects of International 

Child Abduction, which was held not to be a statute of limitations. “When a parent abducts a child and flees to 

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12 ARELLANO v. MCDONOUGH

another country,” the Hague Convention “generally requires that country to return the child immediately if the 

other parent requests return within one year.” Lozano, 572 

U.S. at 4. After the one-year period has expired, under Article 12, the court “shall also order the return of the child, 

unless it is demonstrated that the child is now settled.” Id.

at 15 (citation and quotation marks omitted). Lozano did 

not involve a statute, but rather a treaty provision, which 

“was not adopted against a shared background of equitable 

tolling.” Id. at 11. Also, this treaty provision in Lozano did 

not provide a cut-off for monetary recovery, unlike 

§ 5110(b)(1), which provides “certainty about a plaintiff’s 

opportunity for recovery and a defendant’s potential liabilities” by providing a cut-off date for retroactive disability 

benefits. See Rotella, 528 U.S. at 555. Lozano has no relevance here.

Nor is this case similar to Hallstrom, on which Judge 

Chen also relies. As noted above, Hallstrom concerned a 

60-day notice provision of the Resource Conservation and 

Recovery Act of 1976. 493 U.S. at 22 (citing 42 U.S.C. 

§ 6972(b)(1) (1982)). The Supreme Court held that this 

“60-day notice provision” was “[u]nlike a statute of limitations” because “petitioners [had] full control over the timing of their suit: they need only give notice to the 

appropriate parties and refrain from commencing their action for at least 60 days.” Id. at 27. Section § 5110(b)(1) is 

not a notice provision.

In sum, § 5110(b)(1) is a statute of limitations, and the 

Irwin rebuttable presumption of equitable tolling applies. 

As Judge Newman has noted, “[t]he time period of 

§ 5110(b)(1) is not a jurisdictional restriction, and its blanket immunization from equitable extension, whatever the 

circumstances, appears to be directly contrary to the legislative purpose.” Butler v. Shinseki, 603 F.3d 922, 928 (Fed. 

Cir. 2010) (Newman, J., concurring in the result).

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ARELLANO v. MCDONOUGH 13

IV

“To be sure, Irwin’s presumption is rebuttable.” United 

States v. Kwai Fun Wong, 575 U.S. 402, 419 (2015). Judge 

Chen concludes that even if the presumption of equitable 

tolling applies to § 5110(b)(1), the presumption has been 

rebutted. I disagree. Congress has not clearly indicated a 

general prohibition against equitable tolling as to 

§ 5110(b)(1).

The Supreme Court has identified several factors that 

determine whether the equitable tolling presumption has 

been rebutted, and here, almost all of the factors signal

that there is no general prohibition against equitable tolling.7

The first factor is the language of the statute. The language of a statute of limitations may indicate that it is jurisdictional, in which case a court must enforce the 

limitation “even if equitable considerations would support 

extending the prescribed time period.” Kwai Fun Wong, 

575 U.S. at 408–09. In determining whether a statute is 

jurisdictional, courts have often held that it does not matter if a statute’s language is “mandatory” or “emphatic” if 

“text speaks only to a claim’s timeliness, not to a court’s 

power.” Id. at 410–11.

Section 5110(b)(1) is not jurisdictional, as Judge Chen

concedes. Chen Op. 36–37. Nevertheless, Judge Chen relies on the use of the phrase “[u]nless specifically provided 

otherwise in this chapter” in § 5110(a)(1), concluding that 

by using that term, Congress “implicitly intended to preclude the general availability of equitable tolling by 

7 Our decision in Cloer identified many of the same 

factors. See 654 F.3d at 1342. The Supreme Court has 

identified further factors since we decided Cloer that I discuss here. See generally Auburn, 568 U.S. 145; Kwai Fun 

Wong, 575 U.S. 402.

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14 ARELLANO v. MCDONOUGH

explicitly including a more limited, specific selection of equitable circumstances under which a veteran is entitled to 

an earlier effective date and specifying the temporal extent 

of the exceptions for those circumstances.” Id. at 37–38.

In Kwai Fun Wong, the Supreme Court held that the 

use of the phrase “shall be forever barred” in the Federal 

Tort Claims Act limitations period, 28 U.S.C. § 2401(b),

though “mandatory” and “emphatic,” “[spoke] only to a 

claim’s timeliness, not to a court’s power,” and did not designate § 2401(b) as a jurisdictional time bar not subject to 

equitable tolling. 575 U.S. at 410–11. Here, too, the phrase

“[u]nless specifically provided otherwise in this chapter” in 

§ 5110(a)(1), though mandatory and emphatic, does not 

clearly foreclose equitable tolling of § 5110(b)(1).

Second, the detailed nature of a statute may suggest 

that Congress did not intend for a statute of limitations to 

be equitably tolled. “Ordinarily limitations statutes use 

fairly simple language, which one can often plausibly read 

as containing an implied ‘equitable tolling’ exception.” 

United States v. Brockamp, 519 U.S. 347, 350 (1997). A 

statute that “uses language that is not simple” and “sets 

forth its limitations in a highly detailed technical manner, 

that, linguistically speaking, cannot easily be read as containing implicit exceptions” could indicate Congress’s intent to preclude equitable tolling. Id.

Judge Chen determines that the language and structure of § 5110’s subsections are “highly detailed” and “technical.” Chen Op. 39 (quoting Brockamp, 519 U.S. at 350). 

While it is true that § 5110 is a detailed statute, it “use[s] 

fairly simple language.” See Brockamp, 519 U.S. at 350. 

For example, § 5110(b)(1) simply states that “[t]he effective 

date of an award of disability compensation to a veteran 

shall be the day following the date of the veteran’s discharge or release if application therefor is received within 

one year from such date of discharge or release.” 38 U.S.C. 

§ 5110(b)(1). Section § 5110, even considered as a whole, is 

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ARELLANO v. MCDONOUGH 15

not as detailed as the tax statute at issue in Brockamp, 26 

U.S.C. § 6511, where equitable tolling was disallowed. 

This factor does not weigh against equitable tolling of 

§ 5110(b)(1).

Third, we consider if a statute of limitations has “explicit exceptions to its basic time limits,” which may preclude equitable tolling. Brockamp, 519 U.S. at 351. Judge 

Chen concludes that “§ 5110’s enumerated exceptions confirm that Congress has already considered which equitable 

considerations may provide a retroactive effective date and 

declined to provide the relief Mr. Arellano seeks.” Chen 

Op. 41.

We noted in Cloer that “exceptions to statutes of limitations do not necessarily rebut the bedrock Irwin presumption in favor of equitable tolling,” and that “an 

exception may signal a beneficent Congressional act, not a 

rebuttal of the Irwin presumption.” 654 F.3d at 1343. Although § 5110(b)(1) is itself an exception to the general effective date rule of § 5110(a)(1), there are no explicit 

exceptions to the one-year period in § 5110(b)(1).8

Nor do the other provisions of § 5110 speak to equitable 

tolling, with the exception of § 5110(b)(4), which provides a 

retroactive period of disability pension benefits for a veteran who is “prevented by a disability from applying for 

disability pension.” 38 U.S.C. § 5110(b)(4)(B).

Apart from § 5110(b)(4), this is not a situation in which 

the statute “has already effectively allowed for equitable 

8 Under the VA’s regulation, “[t]ime limits within 

which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be 

extended for good cause shown.” 38 C.F.R. § 3.109(b) 

(2020). The government argues that this regulation does 

not apply to § 5110(b)(1), and Mr. Arellano does not contend otherwise.

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16 ARELLANO v. MCDONOUGH

tolling.” See United States v. Beggerly, 524 U.S. 38, 48 

(1998). The other § 5110 provisions discuss situations—for 

example, when a child turns 18, 38 U.S.C. § 5110(e)(2); 

when there has been a report or finding of death of a service 

member, id. § 5110(j); or when there has been an annulment of marriage, id. § 5110(k)—which do not on their face

relate to equitable tolling or indicate Congress’s intent to 

preclude equitable tolling of § 5110(b)(1).

With respect to § 5110(b)(4), it is true that § 5110(b)(4) 

speaks to one limited aspect of equitable tolling (tolling for 

disability), but only in the unique context of disability pension and not disability compensation. While this may indicate a desire to limit equitable tolling for mental disability 

in specific circumstances (as discussed below), this can 

hardly be read as evincing a desire by Congress to eliminate equitable tolling generally as to disability compensation. It is simply an example of “a beneficent Congressional 

act, not a rebuttal of the Irwin presumption.” See Cloer, 

654 F.3d at 1343.

Fourth, Congress is more likely to have intended a statute of limitations that governs a statutory scheme “in 

which laymen, unassisted by trained lawyers, initiate the 

process” to be subject to equitable tolling, Zipes, 455 U.S. 

at 397 (quoting Love v. Pullman Co., 404 U.S. 522, 527 

(1972)), in contrast to statutory schemes that govern sophisticated parties “assisted by legal counsel,” Auburn, 568 

U.S. at 160.

The fact that “the veteran is often unrepresented during the claims proceedings,” Shinseki v. Sanders, 556 U.S. 

396, 412 (2009), especially, as here, “in the early stages of 

the application process,” when “the veteran is almost always unassisted by legal counsel,” Hensley v. West, 212 

F.3d 1255, 1262 (Fed. Cir. 2000), suggests that Congress 

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ARELLANO v. MCDONOUGH 17

intended for equitable tolling to be available.9 This is in 

contrast to situations such as in Auburn, where the statutory scheme at issue governed reimbursements to 

healthcare providers. The statute “[was] not designed to 

be unusually protective of claimants,” was not one “in 

which laymen, unassisted by trained lawyers, initiate the 

process,” and “applie[d] to sophisticated institutional providers assisted by legal counsel.” 568 U.S. at 160–61 (citations and internal quotation marks omitted) (holding that 

equitable tolling did not apply to the 180-day statutory 

deadline for health care providers to file appeals with the 

Provider Reimbursement Review Board under 42 U.S.C. 

§ 1395oo(a)(3)).

Fifth, we consider the subject matter of the statute. If 

the statute of limitations “is contained in a statute that 

Congress designed to be ‘unusually protective’ of claimants,” that will suggest Congress intended for equitable 

tolling to apply. Bowen v. City of New York, 476 U.S. 467, 

480 (1986) (quoting Heckler v. Day, 467 U.S. 104, 106 

(1984)).

“[T]he uniquely pro-claimant nature of the veterans 

compensation system” suggests that Congress intended at 

9 See also Department of Veterans Affairs Board of 

Veterans’ Appeals, Annual Report Fiscal Year 2020, 36, 

https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2020AR.pdf (24.4% of legacy appeals before 

the Board of Veterans’ Appeals (“Board”) in fiscal year 2020 

had attorney representation); Connie Vogelmann, Admin. 

Conf. of the United States, Self-Represented Parties in Administrative Hearings 29 (Oct. 28, 2016), 

https://www.acus.gov/sites/default/files/documents/SelfRepresented-Parties-Administrative-Hearings-Final-Report-10-28-16.pdf (10.5% of claimants before the Board between fiscal years 2011–2015 had attorney 

representation).

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18 ARELLANO v. MCDONOUGH

least some form of equitable tolling to be available. Hensley 

v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000). The veterans’ 

claims process is “designed to be ‘unusually protective’ of 

claimants,” see Bowen, 476 U.S. at 480, and “is designed to 

function throughout with a high degree of informality and 

solicitude for the claimant,” Henderson, 562 U.S. at 431 

(quoting Walters v. Nat’l Assn. of Radiation Survivors, 473 

U.S. 305, 311 (1985)).10

“Congress has expressed special solicitude for the veterans’ cause.” Shinseki, 556 U.S. at 412. “A veteran, after 

all, has performed an especially important service for the 

Nation, often at the risk of his or her own life.” Id. “[T]he 

veterans benefit system is designed to award ‘entitlements 

to a special class of citizens, those who risked harm to serve 

and defend their country. This entire scheme is imbued 

with special beneficence from a grateful sovereign.’” Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (quoting Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998)

(Michel, J., concurring)).11 

10 Although Walters noted in passing that “[t]here is 

no statute of limitations” in the veterans’ claims process 

generally, 473 U.S. at 311, the court appears to have been 

referring to the fact that “[a] veteran faces no time limit for 

filing a claim,” Henderson, 562 U.S. at 431.

11 In Bailey, we held that the 120-day period for a 

claimant to appeal an adverse decision of the Board to the 

Court of Appeals for Veterans Claims (“Veterans Court”), 

38 U.S.C. § 7266, is subject to equitable tolling. 160 F.3d 

at 1368 (en banc). Bailey and its progeny, including 

Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en 

banc), were overruled by our en banc decision in Henderson v. Shinseki, 589 F.3d 1201, 1203 (Fed. Cir. 2009) (en 

banc), reversed in Henderson v. Shinseki, 562 U.S. 428, 

441–42 & n.4 (2011). The effect of the Supreme Court’s 

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ARELLANO v. MCDONOUGH 19

The veterans benefits system is unlike the tax collection system, which the Supreme Court held was not subject 

to equitable tolling because “Congress decided to pay the 

price of occasional unfairness in individual cases (penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement system.” 

Brockamp, 519 U.S. at 352–53.

“[O]nce a claim is filed, the VA’s process for adjudicating it at the regional office and the Board is ex parte and 

nonadversarial.” Henderson, 562 U.S. at 431; see 38 C.F.R. 

§§ 3.103(a), § 20.700(c) (2020). “In the context of the nonadversarial, paternalistic, uniquely pro-claimant veterans’

compensation system, and consistent with our decision in 

Bailey, the availability of equitable tolling pursuant to Irwin should be interpreted liberally with respect to filings 

during the non-adversarial stage of the veterans’ benefits 

process.” Jaquay, 304 F.3d at 1286.

These factors, as well as “the canon that provisions for 

benefits to members of the Armed Services are to be construed in the beneficiaries’ favor,” King v. St. Vincent’s 

Hosp., 502 U.S. 215, 221 n.9 (1991), lead to the conclusion

that there is no clear indication that Congress intended to

broadly foreclose equitable tolling in § 5110(b)(1), and that 

equitable tolling should be available in appropriate cases.

Nor does the fact that Congress amended § 5110 four 

times since Andrews indicate approval of Andrews. The 

presumption that reenactment of a statute ratifies the settled interpretation of that statute is strongest when there 

is evidence that “Congress was indeed well aware of [the 

prior interpretation].” Lindahl v. OPM, 470 U.S. 768, 782 

decision was to reinstate our decision in Bailey, and we 

have since reaffirmed that “[t]he filing deadline of § 7266 

is not jurisdictional and may be tolled where appropriate.” 

James v. Wilkie, 917 F.3d 1368, 1372 (Fed. Cir. 2019).

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20 ARELLANO v. MCDONOUGH

(1985); see also Lorillard v. Pons, 434 U.S. 575, 580–81 

(1978). However, “[r]e-enactment—particularly without 

the slightest affirmative indication that Congress ever had 

the [prior judicial interpretation] decision before it—is an 

unreliable indicium at best.” C.I.R. v. Glenshaw Glass Co., 

348 U.S. 426, 431 (1955); see also Brown v. Gardner, 513 

U.S. 115, 121 (1994) (declining to find that reenactment of 

a statute ratified the VA’s interpretation of that statute in 

part because “the record of congressional discussion preceding reenactment ma[de] no reference to the VA regulation [interpreting the statute at issue], and there is no 

other evidence to suggest that Congress was even aware of 

the VA’s interpretive position.”); Micron Technology, Inc. v. 

U.S., 243 F.3d 1301, 1310 (Fed. Cir. 2001). There is not the 

slightest indication that Congress when it amended § 5110 

was aware of our decision in Andrews, and there is no basis 

for concluding that Congress intended to approve that decision.12 Nor is this a well-settled administrative interpretation as in Auburn, 568 U.S. 145. Auburn concerned 

Congress’s delegation of rulemaking authority relating to 

a specific statutory provision to the Secretary of Health and 

Human Services, and the Secretary’s implementation of 

that authority. 568 U.S. at 159. Here, by contrast, we are 

dealing with the decision of a single circuit court, which has 

not been reviewed by the Supreme Court.

Judge Chen’s approach is particularly difficult to defend because it would bar equitable tolling in all cases, 

12 This is especially true because, as Judge Newman 

pointed out in her concurrence in Butler, it is unclear 

whether the broad language in Andrews was even relevant 

to its resolution of the precise issue for which it is now cited 

to us. 603 F.3d at 927 (“The Veterans Court enlarged Andrews beyond its premises, in holding that tolling of the 

one-year term of retroactivity under § 5110(b)(1) is never 

available.”).

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ARELLANO v. MCDONOUGH 21

including cases where equitable tolling could be argued to 

be particularly important and appropriate. This approach 

forecloses the possibility of equitable tolling entirely, even 

in circumstances in which there is no indication that Congress intended strict enforcement of the one-year period of 

§ 5110(b)(1).

V

The fact that the statute does not foreclose equitable 

tolling in the case of § 5110(b)(1) does not suggest that equitable tolling is available in every circumstance. While 

the statute does not indicate a general prohibition against 

equitable tolling, “[f]ederal courts have typically extended 

equitable relief only sparingly.” Irwin, 498 U.S. at 96. To 

determine when equitable tolling is justified, we apply 

well-established equitable tolling principles to the circumstances presented. Such analysis is done on a case-by-case 

basis, though general principles will often guide the analysis in a broad swath of cases.

Equitable tolling analysis begins with the governing 

statutory scheme. Even where the Irwin presumption has 

not been rebutted, the statute and statutory scheme are instructive as to the particular circumstances that will justify equitable tolling. See Mapu v. Nicholson, 397 F.3d 

1375, 1381 (Fed. Cir. 2005) (concluding that “Congress’s explicit decision not to broaden the postmark rule by extending it to delivery services other than the Postal Service 

must trump any extension of equitable tolling to this 

case”); Cloer, 654 F.3d at 1345 (no relief under equitable 

tolling because of “a policy calculation made by Congress 

not to afford a discovery rule to all Vaccine Act petitioners 

and Dr. Cloer’s failure to point to circumstances that could 

justify the application of equitable tolling to forgive her untimely claim”). The statutory scheme here helps inform the 

scope of equitable tolling on the ground of mental disability.

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22 ARELLANO v. MCDONOUGH

First, an individual who lacks mental capacity may

have a caregiver sign a form for benefits on his or her behalf. Under 38 U.S.C. § 5101, as amended in 2012,13 if an 

“individual lacks the mental capacity . . . to provide substantially accurate information needed to complete a form; 

or . . . to certify that the statements made on a form are 

true and complete,” 38 U.S.C. § 5101(e)(1),14 then “a form 

filed . . . for the individual may be signed by a court-appointed representative, a person who is responsible for the 

care of the individual, including a spouse or other relative, 

or . . . agent authorized to act on behalf of the individual 

under a durable power of attorney,” id. § 5101(a)(2).

In addition, 38 C.F.R. § 3.155 provides that “some person acting as next friend of claimant who is not of full age 

or capacity may indicate a claimant’s desire to file a claim 

for benefits by submitting an intent to file a claim to [the]

VA.” 38 C.F.R. § 3.155(b) (2020). “Upon receipt of the intent to file a claim, [the] VA will furnish the claimant with 

the appropriate application form prescribed by the Secretary.” Id. Thus, § 3.155 “provide[s] a way for claimants 

who cannot engage in a legal contract due to age or disability to be represented by someone (or next friend) who can 

do so on their behalf.” Standard Claims and Appeals 

13 See Honoring America’s Veterans and Caring for 

Camp Lejeune Families Act of 2012, Pub. L. 112-154, Title 

V, § 502(a), 126 Stat. 1165, 1190. 14 38 U.S.C. § 5101(d) (2020) was renumbered as 

§ 5101(e) in 2021. See Johnny Isakson and David P. Roe, 

M.D. Veterans Health Care and Benefits Improvement Act 

of 2020, Pub. L. 116-315, § 2006(a), 134 Stat. 4932 (enacted 

Jan. 5, 2021).

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ARELLANO v. MCDONOUGH 23

Forms, 79 Fed. Reg. 57,660, 57,667 (Sept. 25, 2014) (Final 

Rule).15

In the context of the Vaccine Act, the provision that allows a “legal representative,” 42 U.S.C.

§ 300aa-11(b)(1)(A), to file a petition on the behalf of a person who is disabled, “does not foreclose the availability of 

equitable tolling for claimants with mental illness,” under 

all circumstances. K. G. v. Sec’y of Health & Hum. Servs., 

951 F.3d 1374, 1381 (Fed. Cir. 2020). K.G. makes clear that 

the mere fact that a guardian has been appointed for a 

claimant is a factor in the equitable tolling inquiry, but 

only one factor. While that fact is true for veterans as well, 

it is a more important factor in the veteran’s context than 

in Vaccine Act cases. That is because Congress has gone 

further in the veteran’s context, by allowing any person on 

the claimant’s behalf to indicate an intent to file a claim, 

and making a mere indication of a desire to file a claim sufficient to start the claims process. See 38 C.F.R. § 3.155(b)

(2020).

Thus, absent special circumstances demonstrating an 

inability of the caregiver to at least indicate an intent to 

15 A similar provision existed under the informal 

claim system, which ended in 2015. See Shea v. Wilkie, 926 

F.3d 1362, 1366 n.3 (Fed. Cir. 2019). Under the informal 

claim system, “[a]ny communication or action, indicating 

an intent to apply for one or more benefits under the laws 

administered by [the VA], from a claimant . . . or some person acting as next friend of a claimant who is not sui juris” 

could be “considered an informal claim,” which was a 

longstanding practice of the VA. 26 Fed. Reg. 1561, 1570, 

(codified at 38 C.F.R. § 3.155(a)) (Feb. 24, 1961). Compare 

id. with 38 C.F.R. § 3.155(a) (2014). 

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24 ARELLANO v. MCDONOUGH

file a claim (which can trigger the claim filing process),16 I 

believe it would be only the rare case where a mentally disabled veteran with a caregiver would be entitled to equitably toll § 5110(b)(1).

Second, 38 U.S.C. § 5110(b)(4) provides a one-year period for a retroactive effective date for disability pension (a 

form of compensation distinct from service-connected benefits).17 That subsection provides:

(A) The effective date of an award of disability pension to a veteran described in subparagraph (B) of 

this paragraph shall be the date of application or 

the date on which the veteran became permanently 

and totally disabled, if the veteran applies for a retroactive award within one year from such date, 

whichever is to the advantage of the veteran.

(B) A veteran referred to in subparagraph (A) of 

this paragraph is a veteran who is permanently 

and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on 

16 For claims of equitable tolling prior to 2015, as is 

the case here, the relevant inquiry would be whether there 

are special circumstances demonstrating an inability of the 

caregiver to submit an informal claim. See 38 C.F.R. 

§ 3.155(a) (2014).

17 Disability pension is available for veterans who are 

“permanently and totally disabled from non-service-connected disability,” 38 U.S.C. § 1521(a), and pension is needbased, so veterans who exceed a maximum annual income 

or net worth set by regulation will not qualify. See id.

§ 1522; 38 C.F.R. §§ 3.274, 3.275 (2020); see also H.R. Rep. 

No. 79-2425 (June 28, 1946); Act of July 9, 1946, Pub. L. 

No. 79-494, 60 Stat. 524.

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which the veteran became permanently and totally 

disabled.

38 U.S.C. § 5110(b)(4) (emphasis added).

The predecessor to subsection (A) of § 5110(b)(4) was 

adopted18 based on a proposal from the VA to address 

“problems resulting from the veteran’s disability [that] delays [the veteran’s] application for the benefit,” whereby 

“the very condition upon which entitlement may depend 

may also prevent prompt application for the benefit.” H.R. 

Rep. 93-398, 1973 U.S.C.C.A.N. 2759, 2772 (July 25, 1973) 

(letter dated May 10, 1973, from Donald E. Johnson, Administrator of Veterans Affairs). The VA’s proposal “would 

alleviate this situation by affording the disabled veteran a 

year from onset of disability to apply for pension and, if he 

is otherwise eligible, authorize payment retroactively to 

the date on which he became permanently and totally disabled.” Id. “The 1-year period prescribed by the proposal 

within which to apply for disability pension [was] considered reasonable . . . .” Id.

This provision was further amended in 1984 in part to 

add subsection (B), which specified that veterans who qualify for the one-year lookback period for disability pension 

are veterans “who [are] permanently and totally disabled 

and who [are] prevented by a disability from applying for 

disability pension for a period of at least 30 days beginning 

on the date on which the veteran became permanently and 

totally disabled.” Deficit Reduction Act of 1984, Pub. L. 98–

369, sec. 2501, 98 Stat. 494, 1116–17.19

18 The predecessor to § 5110(b)(4)(A) was enacted in 

1973 as 38 U.S.C. § 3010(b)(2). See Act of Dec. 6, 1973, Pub. 

L. 93-177, sec. 6, 87 Stat. 694, 696. 19 The predecessor to § 5110(b)(4)(B) was enacted in 

1984 as 38 U.S.C § 3010(b)(3)(B). Deficit Reduction Act of 

1984, Pub. L. 98–369, sec. 2501(a)(1), 98 Stat. at 1116.

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26 ARELLANO v. MCDONOUGH

While pension benefits are different from disability 

benefits, this provision is instructive because it indicates 

Congressional willingness to delay veterans’ filing obligations where a disability makes meeting them difficult or 

impossible, but not to do so indefinitely, or even for a substantial period of time.

Against this backdrop, I now turn to the particular circumstances presented here.20 Mr. Arellano’s brother, 

Pedro Arellano Lamar, has been Mr. Arellano’s “caregiver 

since [Mr. Arellano] returned home mentally disabled in 

November 1981.” J.A. 554; see also id. at 565. Yet, the VA 

did not receive Mr. Arellano’s application until June 3, 

2011. According to Mr. Arellano’s counsel, Mr. Arellano’s 

brother, “acting as guardian ad litem,” filed the application 

on Mr. Arellano’s behalf. Oral Arg. 41:25–42:06, 43:27–

44:10, http://oralarguments.cafc.uscourts.gov/default.

aspx?fl=20-1073_02042021.mp3. There is no allegation 

that Mr. Lamar was somehow prevented from filing, or 

faced obstacles in his attempt to file, Mr. Arellano’s request 

for benefits sooner. Unlike in K. G., there is no claim that 

Mr. Arellano was estranged from Mr. Lamar or refused to 

interact with him. See 951 F.3d at 1377. Indeed, Mr. Arellano signed the application himself at Mr. Lamar’s direction. There is nothing in the record that justifies the 

inordinate thirty-year delay in filing the application at issue.

20 We have recognized that in determining the application of equitable tolling, “[w]here the facts are undisputed, all that remains is a legal question, even if that legal 

question requires the application of the appropriate standard to the facts of a particular case.” Former Employees of 

Sonoco Prod. Co. v. Chao, 372 F.3d 1291, 1294–95 (Fed. 

Cir. 2004) (collecting cases). Because we assume the facts 

are as Mr. Arellano describes them, we address the availability of tolling in the first instance.

Case: 20-1073 Document: 96 Page: 77 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 27

Because Mr. Arellano had a caregiver who could have 

filed (and indeed did later file) an application on Mr. Arellano’s behalf, and no special circumstances are alleged, equitable tolling on the ground of Mr. Arellano’s mental 

disability is not warranted, especially for such an untimely 

filing. Equitable tolling for mental disability is not available in this case.

CONCLUSION

I would hold that § 5110(b)(1) is a statute of limitations 

that is subject to the rebuttal presumption of equitable tolling under Irwin. I would also hold that the presumption 

has not been rebutted as to equitable tolling, but that equitable tolling is not available to Mr. Arellano’s specific circumstances. Thus, I concur in the judgment.

Case: 20-1073 Document: 96 Page: 78 Filed: 06/17/2021