NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS R. HELM,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7064
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3347, Judge Robert N. Davis.
______________________
Decided: August 13, 2015
______________________
THOMAS R. HELM, San Antonio, TX, pro se.
JESSICA R. TOPLIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
SCOTT D. AUSTIN; Y. KEN LEE, LARA EILHARDT, MARTIE
ADELMAN, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
2 HELM v. MCDONALD
Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
Appellant Thomas Helm seeks review of a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) in Helm v. Gibson, No. 13-3347 (Vet.
App. June. 11, 2014) (“Helm I”) (Resp’t’s App. 1–3), dis-
missing his appeal as untimely. For the reasons set forth
below, this court affirms.
I. BACKGROUND
Statement of Facts and Procedural Posture
In a decision dated and mailed July 24, 2002, the
Board of Veterans’ Appeals (“Board”) denied Mr. Helm’s
claims for entitlement to service connection for hypercho-
lesterolemia and pancreatitis (“Board Decision”). 1 Almost
eleven years after the Board mailed the decision, in a
notice dated May 6, 2013, Mr. Helm filed a motion of
reconsideration to the Board, claiming that “procedural
errors [were] involved in [his] case.” Resp’t’s App. 32. On
September 16, 2013, Deputy Vice Chairman of the Board,
David C. Spikler, denied Mr. Helm’s motion, stating that
although his motion for reconsideration “ha[d] been
carefully reviewed . . . [it] does not demonstrate that the
[2002] Board decision contains obvious error of fact or
law.” Resp’t’s App. 66. On November 21, 2013, Mr. Helm
filed a Notice of Appeal (“NOA”) with the Veterans Court.
The Secretary subsequently moved to dismiss the case
and Mr. Helm filed a response, contending his NOA was
filed within 120 days after the date on which notice of the
denial for reconsideration was mailed. See 38 U.S.C. §
1 The date of the mailing is the date that appears
on the face of the enclosed [Board] decision.” Resp’t’s App.
31
HELM v. MCDONALD 3
7266(a). On February 12, 2014, the Veterans Court
ordered Mr. Helm to file additional documentation in
support of a request to equitably toll the 120-day period in
which to file a NOA. In his response, Mr. Helm claims
that “he was unaware that in order to preserve his right
to appeal to [the Veterans Court], he was required to file
his motion for reconsideration within 120 days of the
[2002] Board decision.” Helm I at 1.
In an order dated June 11, 2014, the Veterans Court
granted the Secretary’s motion to dismiss the appeal,
holding that “Mr. Helm’s confusion as to the time for
filing either a direct appeal or for filing a motion for
reconsideration that would serve to preserve his right to
appeal . . . does not warrant equitable tolling of the filing
period.” Id. Accordingly, the Veterans Court dismissed
Mr. Helm’s appeal. On June 19, 2014, Mr. Helm filed a
motion for reconsideration or, in the alternative, for a
panel decision. On September 16, 2014, the Veterans
Court granted the motion for a panel decision, but denied
the motion for reconsideration and ordered the single-
judge order remain the decision of the court. Shortly
thereafter, on September 22, 2014, Mr. Helm filed a
motion for leave to include supporting documentation
with his motion for reconsideration. On October 6, 2014,
Mr. Helm filed a motion for panel reconsideration or, in
the alternative, motion for full court review. However, on
December 2, 2014, the Veterans Court denied Mr. Helm’s
motion for leave to include supporting documentation and
for reconsideration. On February 27, 2015, the Veterans
Court denied Mr. Helm’s motion for a decision by the full
court and entered judgment.
Mr. Helm filed an NOA with this court on March 9,
2015, and an amended NOA on March 13, 2015.
4 HELM v. MCDONALD
II. DISCUSSION
A. Jurisdiction and Standard of Review
This court has jurisdiction to review the Veterans
Court’s decision pursuant to 38 U.S.C. § 7292. Under that
statute, this court may review “the decision with respect
to the validity of a decision of the [Veterans Court] on a
rule of law or of any statute or regulation . . . or any
interpretation thereof (other than a determination as to a
factual matter).” 38 U.S.C. § 7292(a). This court has
“exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation . . . , and to interpret constitutional and statuto-
ry provisions, to the extent presented and necessary to a
decision.” Id. § 7292(c). Excluding a constitutional issue,
this court lacks the jurisdiction to “review (A) a challenge
to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2).
In reviewing a Veterans Court decision, this court
must “decide all relevant questions of law, including
interpreting constitutional and statutory provisions,” and
must “set aside any regulation or any interpretation
thereof (other than a determination as to a factual mat-
ter)” relied upon by the Veterans Court that this court
finds “(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in
excess of statutory jurisdiction, authority, or limitations,
or in violation of a statutory right; or (D) without ob-
servance of procedure required by law.” Id. § 7292(d)(1).
We review questions of statutory and regulatory interpre-
tation de novo. See Vazquez-Claudio v. Shinseki, 713 F.3d
112, 115 (Fed. Cir. 2013) (citing 38 U.S.C. § 7292; Hodge
v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998)).
HELM v. MCDONALD 5
B. There Was No Legal Error in the Veterans Court’s
Equitable Tolling Analysis
On appeal, Mr. Helm argues the doctrine of “equitable
tolling is authorized in the [Veterans Court’s] [decision]
based on [his] reliance on the incorrect statement(s) of
[the] Department of Veterans Affairs (VA) official(s).”
Appellant’s Br. 4. Conceding that his motion for reconsid-
eration was mailed almost eleven years after notice of the
Board’s decision was sent, Mr. Helm asserts the Board
“failed to provide proper and/or adequate notice to
[him] . . . regarding their responsibility to comply with 38
U.S.C. [§] 5104(a),[2] by including, with the [Veterans
Affairs 2002] denial letter . . . , an obsolete/non-
current/not up-to-date VA Form 4597.” Id. (capitalization
modified). Specifically, Mr. Helm contends the 2002
Board decision “directed [him] to alter” VA Form 4597,
“thereby omitting/deleting information that misled [him]
into missing the filing deadline for a timely Notice of
Appeal to the [Veterans Court].” Id. at 7.
Mr. Helm also argues his 2013 NOA was timely be-
cause, as instructed in VA Form 220 following his 2013
motion for reconsideration, he filed his NOA within the
120-day window specified in that form. Finally, Mr. Helm
“request[s] th[is] [c]ourt to allow [his] case to proceed
based on the application of the doctrine of equitable
[t]olling,” as his case satisfies other precedential cases in
2 38 U.S.C. § 5104(a) states:
In the case of a decision by the Secretary under
section 511 of this title affecting the provision of
benefits to a claimant, the Secretary shall, on a
timely basis, provide to the claimant (and to the
claimant’s representative) notice of such decision.
The notice shall include an explanation of the pro-
cedure for obtaining review of the decision.
6 HELM v. MCDONALD
which this court has applied the doctrine. Appellant’s Br.
10.
In response, the Secretary argues its 2002 “decision
[included an attachment] . . . advis[ing] [Mr. Helm] of
changes to the notice resulting from the Veterans Educa-
tion and Benefits Expansion Act of 2001, Pub. L. No. 107-
103, 115 Stat. 976 [(2001)], and in fact, none of the
amendments made by the 2001 Act are relevant to Mr.
Helm’s appeal.” Appellee’s Br. 8–9. The Secretary also
argues “[t]he [Notice of Disagreement] in Mr. Helm’s case
was filed after the August 1996 [Regional] Office decision
and a later rating decision, . . . so the 2001 amendments
did not affect Mr. Helm’s case.” Id. With respect to VA
Form 4597, the Secretary contends:
[T]he portion of Form 4597 to which Mr. Helm is
referring––the first bullet of the [B]oard guid-
ance––pertained only to the first sentence of the
paragraph titled “Appeal to the United States
Court of Appeals for Veterans Claims” of Form
4597 (1999), which had limited appeals to those
cases in which a[] [Notice of Disagreement] was
filed on or after November 18, 1988, and to the
sentence directing the claimant to mail a copy of
the N[otice] [of] [D]isagreement to the VA General
Counsel.
Appellee’s Br. 11.
As to Mr. Helm’s second argument, the Secretary re-
sponds that “an NOA may be filed within 120 days of a
[B]oard denial of a motion for reconsideration only if the
motion was filed within 120 days of the [B]oard decision
that the claimant requested to be reconsidered.” Appel-
lee’s Br. 12. According to the Secretary, “[t]he sentence to
which Mr. Helm refers, advising a claimant to file an
NOA within 120 days of the date of mailing of the en-
closed letter, refers to an ‘appeal of the Board’s denial of
[a] motion for reconsideration,’ not to an appeal of the
HELM v. MCDONALD 7
original [B]oard decision.” Id. (brackets omitted) (citing
Resp’t’s App. 67).
In Henderson v. Shinseki, the Supreme Court re-
versed this court, concluding the 120-day period to file a
NOA to the Veterans Court is not jurisdictional. 131 S.
Ct. 1197, 1204 (2011) (holding that because the deadline
for filing an NOA with the Veterans Court does not have
jurisdictional consequences, it is therefore subject to
equitable tolling). As a result, this court and the Veter-
ans Court have treated the filing period as subject to
equitable tolling. See, e.g., Sneed v. Shinseki, 737 F.3d
719, 726 (Fed. Cir. 2013); Bove v. Shinseki, 25 Vet. App.
136, 139 (2011).
It is undisputed that the Board on July 24, 2002,
mailed notice of its decision to Mr. Helm denying his
claims for disability compensation for hypercholesterole-
mia and that it was not until almost eleven years later, on
May 6, 2013, that Mr. Helm filed his motion for reconsid-
eration of the decision. In order for equitable tolling to
occur, the petitioner must show: ‘“(1) that he has been
pursuing his rights diligently, and (2) that some extraor-
dinary circumstance stood in his way’ and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)); see also Lozano v. Montoya Alvarez, 134 S. Ct.
1224, 1231–32 (2014) (“As a general matter, equitable
tolling pauses the running of, or ‘tolls,’ a statute of limita-
tions when a litigant has pursued his rights diligently but
some extraordinary circumstance prevents him from
bringing a timely action.” (emphasis added)).
Mr. Helm does not point to any extraordinary circum-
stance that caused his untimely filing; rather, his primary
contention is that VA Form 4597, which was provided to
him along with the Board’s 2002 decision, and which
provides guidance to a losing party about how to appeal a
Board decision, was inadequate because it was “obso-
8 HELM v. MCDONALD
lete/non-current/not up-to-date.” Appellant’s Br. 4 (capi-
talization modified).
The point of contention stems from an attachment to
VA Form 4597 concerning the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115
Stat. 976 (2001) (the “Amendment”). See Appellant’s Br.
21. Section 603(a) of the Amendment repealed section
402 of the Veterans’ Judicial Review Act, Pub. L. No. 100–
687, 102 Stat. 4105, 4122 (1988), thus eliminating the
need for a party to file a Notice of Disagreement to pre-
serve the Veterans Court’s jurisdiction. 3 Pub. L. No. 107–
3 The notice in the attachment to VA Form 4597
reads:
IMPORTANT NOTICE: We have attached a VA Form
4597 that tells you what steps you can take if you
disagree with our decision. We are in the process
of updating the form to reflect changes in the law
effective on December 27, 2001. See the Veterans
Education and Benefits Expansion Act of 2001,
Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections
to the advice in the form:
• These changes apply to the section en-
titled “Appeal to the United States
Court of Appeals for Veterans Claims.”
(1) A “Notice of Disagreement filed on
or after November 18, 1988” is no long-
er required to appeal to the Court. (2)
You are no longer required to file a
copy of your [NOA] with VA’s General
Counsel.
• In the section entitled “Representation
before VA,” filing a “Notice of Disa-
greement with respect to the claim on
HELM v. MCDONALD 9
103, § 603(a), 115 Stat. 976. Mr. Helm does not show how
the inclusion of a notice about the Amendment in VA
Form 4597 constituted an “extraordinary circumstance”
so as to impact his ability to comprehend the form’s
express statement that “[an] [NOA] must be filed with the
[Veterans Court] within 120 days from the date of mailing
of the notice of the [Board’s] decision.” Resp’t’s App. 31.
In fact, he concedes the Amendment was academic to his
ability to understand the instructions provided in the
form. See Appellant’s Reply Br. 11 (“I never indicated, at
any time or in any manner, that [the Amendment] . . .
[was] relevant to my appeal. Whether or not the filing a
Notice of Disagreement (NOD) on or after November 18,
1988, was a prerequisite to the Veterans Court is a moot
point and another distraction the Secretary’s counsel is
using to skirt the main focus of my argument; that be-
cause the VA directed me, in writing, to ‘note these im-
portant corrections to the advice in the form’, the form was
‘obsolete/noncurrent/not up-to-date’, thereby, inaccurate.”)
(emphases added).
Mr. Helm’s argument is tautological. Although he
agrees the Amendment did not constitute the basis of his
misunderstanding of the instructions of the form, he
nonetheless cites to the notice about the Amendment to
argue that VA Form 4597 is “obsolete/noncurrent/not up-
to-date.” It is unreasonable for Mr. Helm, in one instance
to concede the Amendment is academic and then, in
another, to argue the Secretary’s statements in the notice
about the Amendment accompanying VA Form 4597
constitutes the basis for his claim. The mere inclusion of
or after November 18, 1988” is no long-
er a condition for an attorney-at-law or
a VA accredited agent to charge you a
fee for representing you.
Appellant’s Br. 21 (emphasis added).
10 HELM v. MCDONALD
a notice apprising Mr. Helm of an Amendment which had
no bearing on the requirement that he file his motion for
reconsideration within the 120-day window cannot, with-
out more, constitute the basis of his equitable tolling
claim. If the Amendment is irrelevant, we fail to see how
the specific language directing Mr. Helm’s attention to the
Amendment bears any significance.
Furthermore, to the extent Mr. Helm argues the in-
clusion of the notice rendered VA Form 4597 obsolete, he
fails to sufficiently argue how a form apprising him of an
Amendment which had no bearing on his dilatory conduct
rendered the form “not up-to-date” or inaccurate. This
court has “made clear that ‘to benefit from equitable
tolling, . . . a claimant [must] demonstrate three elements:
(1) extraordinary circumstance; (2) due diligence; and (3)
causation.’” Toomer v. McDonald, 783 F.3d 1229, 1238
(Fed. Cir. 2015) (quoting Checo v. Shinseki, 748 F.3d
1373, 1378 (Fed. Cir. 2014)). Here, Mr. Helm not only
fails to show any extraordinary circumstance for the delay
in filing his motion for reconsideration, he has shown no
reasonable causation between the notice attachment
apprising him of the Amendment and his untimely filing.
Along with the Board’s July 2002 decision, and the
notice attachment, Mr. Helm received VA Form 4597
stating that a direct appeal to the court must be filed
within 120 days after notice of the Board’s decision was
mailed to him. Additionally, VA Form 4597 expressly
states that if the Board receives a motion for reconsidera-
tion within 120 days from the date of mailing of the Board
decision, and that motion is denied, the claimant is per-
mitted to file an NOA within 120 days from the mailing
date of the Board’s denial. If the motion for reconsidera-
tion is granted, Form 4597 indicates an NOA may be filed
within 120 days from the mailing date of the reconsidera-
tion decision. Resp’t’s App. 31 (“The [Veterans Court] has
held that, if we receive your motion for reconsideration
within 120 days from the date we mailed you the [Board’s]
HELM v. MCDONALD 11
decision, you will still be able to file an [NOA] with the
[Veterans Court] within a period of 120 days from the date
that the Board mails you either notice that it has denied
your motion or notice of its decision on reconsideration.”)
(emphasis added)).
Mr. Helm’s second argument that his 2013 NOA was
timely filed stands rejected. An NOA may be filed within
120 days of the date the Board mails notice of its denial of
a motion for reconsideration only if the motion was filed
within the 120-day notice window of the Board decision
the petitioner requested to be reconsidered. Here, the
Board issued its decision on July 24, 2002. However, it
did not receive Mr. Helm’s motion for reconsideration
until May 14, 2013, almost eleven years after the Board’s
decision.
Because Mr. Helm received proper notice of the time
for filing both an NOA and a motion for reconsideration,
and because he has failed to show how his misunder-
standing of such notice constitutes extraordinary circum-
stance or how the inclusion of a statement informing him
of the Amendment caused the untimely filing of his mo-
tion for reconsideration, the doctrine of equitable tolling
does not apply. Therefore, because Mr. Helm failed to
timely appeal the Board’s 2002 decision, we affirm the
Veterans Court’s decision to dismiss his appeal.
CONCLUSION
For the foregoing reasons, the Veterans Court’s deci-
sion dismissing Mr. Helm’s appeal for want of jurisdiction
is
AFFIRMED
No costs.