Maureen Elliott v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MAUREEN ELLIOTT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7030
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-0357, Judge Robert N. Davis.
______________________
Decided: March 31, 2014
______________________
K ENNETH M. CARPENTER , Carpenter, Chartered, To-
peka, Kansas, argued for claimant-appellant. Of counsel
was G REGORY D. K EENUM , Gregory D. Keenum, P.A., of
Booneville, Mississippi.
L. MISHA P REHEIM , Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-appellee. With him on the brief were S TUART F.
D ELERY , Acting Assistant Attorney General, and J EANNE
E. D AVIDSON, Director. Of counsel on the brief were

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ELLIOTT v. SHINSEKI 2
D AVID J. BARRANS , Deputy Assistant General Counsel,
and L ARA K. EILHARDT , Staff Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before D YK, M OORE, and WALLACH , Circuit Judges.
MOORE, Circuit Judge.
Maureen Elliott appeals the decision of the Court of
Appeals for Veterans Claims (Veterans Court) dismissing
her appeal as untimely filed. Because the Veterans Court
erred by failing to consider whether Mrs. Elliott was
entitled to equitable tolling, we vacate and remand.
BACKGROUND
Mrs. Elliott is the surviving spouse of a Vietnam vet-
eran. The Board of Veterans’ Appeals (Board) denied
Mrs. Elliott’s claim for service connection for the cause of
her husband’s death. While the Board undisputedly
mailed copies of its decision to Mrs. Elliott and her attor-
ney, they both claim that they never received them. Mrs.
Elliott filed a Notice of Appeal with the Veterans Court
shortly after she claims she learned about the Board
decision, but well after the statutorily-mandated 120 days
from when the Board decision was mailed.
The Veterans Court determined that Mrs. Elliott’s
Notice of Appeal was untimely, but noted that the 120-
day period could be equitably tolled if the “circumstances
precluded a timely filing despite the exercise of due dili-
gence.” Elliott v. Shinseki, No. 12-0357, slip op. at 1–2
(Vet. App. Mar. 1, 2012) (March 1 Order) (quoting Bove v.
Shinseki, 25 Vet. App. 136, 140 (2011)). The Veterans
Court invited Mrs. Elliott to explain whether her circum-
stances warranted equitable tolling. Id. Mrs. Elliott
responded that she should not be held to the 120-day
filing period because she never received notice of the
decision, even though she and her attorney diligently

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ELLIOTT v. SHINSEKI 3
attempted to obtain status updates from the Department
of Veterans Affairs (VA) both before and after the Board’s
decision issued. She and her attorney submitted affida-
vits explaining that neither of them had received the
mailed copy of the Board’s decision, and that her attorney
sought numerous status updates from the VA but received
no response.
The Veterans Court subsequently dismissed Mrs. El-
liott’s appeal as untimely filed. Elliott v. Shinseki, No. 12-
0357, slip op. at 1–2 (Vet. App. Aug. 22, 2012). It deter-
mined that, under the “presumption of regularity” the
Board presumptively mailed the decision on the date that
the decision was issued. Id. at 1. It also found that the
Board presented evidence—via system records and an
affidavit of the director of the office responsible for the
mailing—that it mailed the decision to Mrs. Elliott and
her attorney at the correct addresses. Id. at 2. The
Veterans Court determined that this evidence was suffi-
cient to show that the Board mailed the decision as re-
quired by 38 U.S.C. § 7104(e)(1), and that the 120-day
period began to run once the decision was mailed. Id. at
1–2. The August 22 order dismissing Mrs. Elliott’s appeal
did not address the issue of equitable tolling. Id. Mrs.
Elliott appeals.
D ISCUSSION
We have jurisdiction over the Veterans Court’s deci-
sions concerning “all relevant questions of law, including
interpreting constitutional and statutory provisions.” 38
U.S.C. § 7292(d)(1). We lack jurisdiction over any “chal-
lenge to a factual determination” or “challenge to a law or
regulation as applied to the facts of a particular case”
unless the challenge presents a constitutional issue. Id.
§ 7292(d)(2). We review the Veterans Court’s legal de-
terminations de novo. Willsey v. Peake, 535 F.3d 1368,
1372 (Fed. Cir. 2008). A litigant seeking equitable tolling

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ELLIOTT v. SHINSEKI 4
must establish (1) diligent pursuit of her rights; and (2)
an extraordinary circumstance that prevented her from
meeting the filing deadline. Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005) (citing Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990)).
Mrs. Elliott argues that the Veterans Court commit-
ted legal error by not considering whether she was enti-
tled to equitable tolling based on the evidence that she
and her attorney submitted. Mrs. Elliott contends that
the Veterans Court erroneously considered only whether
the Board mailed her a copy of the Board decision. She
asserts that 38 U.S.C. § 5104(a) separately requires that
the Secretary “provide [Mrs. Elliott] notice” of the deci-
sion. 38 U.S.C. § 5104(a). Mrs. Elliott asserts that this
separate notice requirement required the Veterans Court
to consider her evidence of nonreceipt when assessing
equitable tolling. She argues that the Veterans Court’s
concerns in earlier cases regarding a veteran’s lack of due
diligence and creating an endless duty of the Veterans
Court to track down a veteran’s current address are not
present here. She argues that she and her attorney
exercised due diligence and that her position only obli-
gates the VA to respond to requests for decisional docu-
ments—an obligation it already has under statute.
The government responds that we do not have juris-
diction to address Mrs. Elliott’s equitable tolling argu-
ment because the Veterans Court did not decide any issue
related to equitable tolling. It asserts that Mrs. Elliott
waived her equitable tolling argument by only arguing to
the Veterans Court that she should not be held to the 120-
day filing period because she had not received a copy of
the Board’s decision. It asserts that, in light of the argu-
ments Mrs. Elliott presented, the Veterans Court properly
addressed only whether Mrs. Elliott’s assertions could
rebut the presumption of regularity and not whether
equitable tolling should apply. The government also

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ELLIOTT v. SHINSEKI 5
contends that whether the circumstances of Mrs. Elliott’s
particular case warrant equitable tolling is a factual issue
outside of our jurisdiction.
On the merits, the government asserts that the Vet-
erans Court correctly applied the law. It contends that
the issue in this case is not whether equitable tolling of
the statutory period is warranted, but whether any defect
in providing notice prevents the statutory period from
beginning to run in the first place. It argues that a defect
in service does not prevent the statutory period from
running, because the applicable statute states that the
statutory period begins running when the Board mails the
notice of the decision, not when the claimant receives it.
38 U.S.C. § 7266(a). It also asserts that § 5104(a) does
not require the VA to ensure actual notice of its decisions.
Instead, it asserts that the proper test for whether notice
is received is whether the claimant can rebut the pre-
sumption of regularity, and that Mrs. Elliott did not rebut
this presumption.
We hold that the Veterans Court erred in refusing to
consider whether evidence of nonreceipt coupled with
diligence can be a basis for equitable tolling. We have
jurisdiction over this appeal because Mrs. Elliott chal-
lenges the Board’s decision concerning a “relevant ques-
tion[] of law.” 38 U.S.C. § 7292(d)(1). While it is certainly
correct that we lack jurisdiction to review the Veterans
Court’s factual findings, id. § 7292(d)(2), that is not what
Mrs. Elliott challenges. Instead, she argues that the
Veterans Court erred as a matter of law by failing to
consider whether evidence of nonreceipt coupled with
diligence may be a basis for equitable tolling—she does
not ask us to assess the merits of that evidence.
Mrs. Elliott did not waive these arguments. The Vet-
erans Court’s March 1 order invited Mrs. Elliott to ad-
dress “whether the circumstances in the instant case

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ELLIOTT v. SHINSEKI 6
warrant the equitable tolling of the 120-day . . . period.”
March 1 Order at 2. Mrs. Elliott responded that she
“should not be held to the 120-day filing period” because
she was not “given notice of the decision and [she] was
diligent in attempting to obtain [it].” J.A. at 28. This was
sufficient to preserve her equitable tolling argument for
appeal.
On the merits, the Veterans Court erred by ending its
inquiry with the presumption of regularity, which only
presumes that the Board mailed the decision—a factual
issue that is not in dispute. However, proof of mailing
does not necessarily demonstrate receipt. Nor does it
necessarily end the equitable tolling inquiry. The gov-
ernment is certainly correct that the presumption of
regularity started the clock. It is also correct that Mrs.
Elliott failed to timely file in the 120 days as required.
But these are the same circumstances present in every
equitable tolling case.
The mailing of the Board’s decision was not disposi-
tive in other equitable tolling cases when other circum-
stances prevented a timely filing, such as reliance on an
incorrect statement from a VA official, mental illness, or
filing the notice of appeal with the wrong tribunal. See
Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998) (en
banc); Barrett v. Principi, 363 F.3d 1316, 1317 (Fed. Cir.
2004); Jaquay v. Principi, 304 F.3d 1276, 1278 (Fed. Cir.
2002). The Veterans Court erred to the extent that it
failed to consider Mrs. Elliott’s equitable tolling claim.
On remand, the Veterans Court must consider whether
Mrs. Elliott has established (1) that she diligently pur-
sued her rights; and (2) that there was an extraordinary
circumstance that prevented her from meeting the filing
deadline. See Pace, 544 U.S. at 418. We vacate and
remand for the Veterans Court to consider whether her
evidence of non-receipt and diligence including unan-

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ELLIOTT v. SHINSEKI 7
swered requests to the VA for status updates, even after
the date of the decision, warrants equitable tolling.1
CONCLUSION
Because the Veterans Court erred in not considering
whether Mrs. Elliott was entitled to equitable tolling of
the statutory filing period, we vacate and remand.
VACATED AND REMANDED
COSTS
Costs to Appellant.
1 We take no position regarding whether 38 U.S.C.
§ 5104 requires actual notice of the Board’s decision
because such a construction is not necessary to the out-
come of this appeal.

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