N OTE : This disposition is nonprecedential. 

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

______________________ EDUARDO H. HINOJOSA, Claimant

- Appellant,

v.

Eric K. S hinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee.

______________________

2012

- 7176

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 10

- 258, Judge Bruce E. Kasold.

______________________

Decided: May 15 , 2013

______________________

E D UARDO H. H INOJOSA , of Irving, Texas, pro se.

C ORINNE A. N IOSI , Trial Attorney, Commercial Litig ation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent

- appellee. With her on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Dire ctor, T ODD M. H UGHES , Deputy Director. Of counsel on the brief were M ICHAEL J. T IMINSKI , Deputy Assistant Ge n-EDUARDO HINOJOSA v. SHINSEKI 2
eral Counsel, and A MANDA R. B LACKMON , Attorney, Uni ted States Department of Veterans Affairs, of Washington, DC.

______________________

Before L OURIE , O'M ALLEY , and T ARANTO , Circuit Judges.

P ER C URIAM

. D ECISION

Eduardo Hinojosa , who se claim for veterans’ benefits the Board of Veterans’ Appeals rejected

, did not file a notice of appeal to the Court of Appeals for Veterans Claims from that rejection within 120 days , as required by statute. The Veterans Court dismissed the appeal as untimely after giving Mr. Hinojosa an opportunity to explain why he missed the 120

- day deadline. Hinojosa v. Shinseki

, No. 10

- 258, 2012 WL 3038177 (Vet. App. July 26, 2012). Because of the limits on this c ourt’s own juri sdiction to review decisions of the Veterans Court, w e now dismiss Mr. Hinojosa’s appeal from th e Veterans Court’s dismissal

. B ACKGROUND Mr. Hinojosa served on active duty in the United States military from January 1966 to November 1967

. Years later, he filed a claim for veterans’ benefits, asser ting that he was suffering from peripheral neuropathy of the upper extremities and that th e condition was connec ted to his military service . In February 1997, the Depar tment of Veter an s Affairs Regional Office in Waco, Texas

, denied his claim

. Mr. Hinojosa later sought to reopen that claim and a lso filed ad ditional claim s. The Regional Office denied the claims

. Mr . Hinojosa appealed to the Board of Veterans ’ Appeals , which, i n November 2007, remanded the matter for additional evidentiary development

. The matter returned to the Board after the remand process wasEDUARDO HINOJOSA v. SHINSEKI 3
complete, and on August 27, 2009, the Board denied Mr. Hinojosa’s claims. T he Board sent Mr. Hinojosa a letter enclosing both its decision and VA Form 4597 (June 2008) . The Form notif ied him t hat he had a r ight to appeal the Board’s decision to the Veterans Court and , as to timing, that he had “120 days from the date [ the Board’s ] decision was mailed to [him] (as shown on the first page of [the] decision) to file a Notice of Appeal with the Cou rt.”
Mr. Hinojosa filed , no earlier than January 21, 2010, what the Veterans Court treated as a notice of appeal from the Board decision. 1 That filing was more than 120 days after the date shown on the first page of the Board’s decision. In a February 4, 2010 order, the Veterans Court found that it could not review Mr. Hinojosa’s appeal because he had not filed it within the 120

- day period for appeal established by statute, 38 U.S.C. § 7266(a) . But the court allowed Mr. Hinojosa 30 days to sh ow why that conclusion was wrong, i.e. , to show why his appeal should not be dismissed for untimeliness

. In response, in March 2010, Mr. Hinojosa submitted a medical report and two

1 The docket sheet of the Veterans Court records a

no tice of appeal dated January 21, 2010. App. 4. But the only document included in the record as the notice of appeal is stamped as received by the Veterans Court on January 25, 2010. App. 29. That docu ment, we note, seems less likely to be an appeal from the Board decision of August 2009 than an appeal from a Regional Office decision, dated September 28, 2009, on a distinct claim filed by Mr. Hinojosa. App. 29, 30, 31

- 34. The Veterans Court evidently treated the late

- January filing, however, as a notice of appeal from the Board decision and calc ulated timeliness on that assumption. That treatment was favorable to Mr. Hinojosa , who otherwise filed no notice of

ap peal from the Board decision at all

.EDUARDO HINOJOSA v. SHINSEKI 4

statements that detailed curre nt and past medical cond itions.
On April 29, 2010, the Veterans Court dismissed Mr. Hinojosa’s appeal . The c ourt held that it was untimely under the statutory deadline and that

, under this c ourt’s decision in Henderson v. Shinseki , 589 F.3d 1201 (Fed. Cir. 2009) (en banc) , “equitable to lling” of that deadline was not available . M r. Hinojosa appealed to this c ourt
, which vacated the Veterans Court’s dismissal and r emanded the matter for further consideration, because the Supreme Court had newly held in Henderson v. Shinseki

, 131 S. Ct. 1197 (2011)

, that the 120

- day deadline for filing an appeal to the Veterans Court is, in fact, subject to “equitable tolling” if a sufficient showing is made in a particular case. Hinojosa v. Shinseki

, 424 F. App ’x . 946, 947 (Fed. Cir. 2011)

. On remand, the Veterans Court found that the med ical report and statements Mr. Hinojosa had submitted in March 2010 did not establish that his medical condition

was suffi ciently severe to render him incapable of filing his appeal before the deadline had passed in lat e Dece mber 2009. But the c ourt allow ed Mr. Hinojosa an add itional 20 days to provide a new showing of why his appeal should not be dismissed. In response, Mr. Hinojosa transmitted three e- mail statements to the Veterans Court that further detailed his me dical history and cu rrent medical problems

. On July 26, 2012 , t he Veterans Court dismissed his appeal after finding that these expl anations did not estab lish that he was incapable of fil ing his appeal within the 120

- day period prescribed by sta tute

. Mr. Hinojosa appeals

. D ISCUSSION

This c ourt’s jurisdiction to review decisions of the Veterans Court is circumscribed by statute. See 38 U.S.C. § 7292. We have jurisdiction to decide appeals that challenge the validity of a decision of the Veterans CourtEDUARDO HINOJOSA v. SHINSEKI 5

wi th respect to a rule of law or the validity of any const itutional provision, statute
, or regulation, in clud ing any interpreta tion of such a source of law. Id

. § 7292 (d)(1). W e do not have jurisdic tion to review a challenge to a factual determination made by the Veterans Court or a challenge to a law or regulation as applied to the facts of a particular case unless the challenge presents a constit utional issue. Id. § 7292(d)(2)

. Th is appeal fall s outside our jurisdiction. The Vete rans Court dismissed Mr. Hinojosa’s appeal for untimel iness because he did not file within 120 days after the Board decision was mailed and he had no ground for equitably tolling that 120

- day limit. Mr. H inojosa pr esents no constitutional or other legal challenge to that decision

. Mr. Hinojosa does not challenge the Veterans Court’s finding that h e missed the 120

- day deadline, which, in any event, is a case

- specific factual matter raising no constitutional issue and hence not within our jurisdiction to review. Nor does he claim that the Veterans Court adopted an incorrect interpretation of the doctrine of equitable tolling when it examined whether his failure to file before late December 2009 was “a direct result of a medical condition that ‘rendered him incapable of rational thought or deliberate decision making, or incapable of handling [his] own affairs or unable to function [in] soci ety.’” Hinojosa

, 2012 WL 3038177, at * 1 ( quoting Arbas v. Nicholson , 4 03 F.3d 1379, 1381 (Fed. Cir. 2005)). At most, Mr. Hinojosa disagrees with the Veterans Court’s factual determination that he failed to offer an adequate basis for finding the necessary incapacity to excuse his failure to meet the 120

- day dead line for filing his a ppeal

. But t he Veterans Court’ s factual determinations,

a nd its application of the law to those facts, are not su bject to our review. Accordingly, we have no jurisdiction over this appeal, which must be dismissed.EDUARDO HINOJOSA v. SHINSEKI 6

No costs.

DISMISSED