Earnest Tookes v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

EARNEST TOOKES,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7189

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-4465, Judge Kenneth B.
Kramer.

ON MOTION

Before LOURIE, PROST, and MOORE, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to waive the
requirements of Fed. Cir. R. 27(f) and to dismiss Earnest
Tookes' appeal for lack of jurisdiction or in the alternative
to summarily affirm. Tookes has not responded.

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Tookes served on active duty in the Army from June
1953 to November 1953. According to Tookes, his dis-
charge papers stated he was being honorably released
from the Army because of schizophrenia and mistakenly
stated that his condition predated his entry of service.

On June 9, 2005, Tookes filed a claim for disability
compensation for schizophrenia. Initially, a Department
of Veterans Affairs regional office (RO) denied his claim
based on the above-noted mistake. In a December 2005
rating action the RO alleviated any error with regard to
when his condition arose and granted Tookes' claim for
service connection with an effective date rating of June 9,
2005-the date of his original application.

Tookes appealed the RO's effective date determination
to the Board of Veterans' Appeals, seeking entitlement to
an earlier effective date pursuant to 38 U.S.C. § 5110(a).
That statute provides "[u]nless specifically. provided
otherwise in this chapter, the effective date of an award
based on an original claim ... shall be fixed in accordance
with the facts found, but shall not be earlier than the date
of receipt of application thereof."

Before the Board, Tookes argued that in November of
1957, he inquired at a Department office regarding his
eligibility for benefits. Tookes also argued that if he had
filed an application in 1957, it would have been in vain
because he could not have received benefits based on the
mistake in his paperwork. Finally, Tookes argued that he
was entitled to an earlier effective date because his
schizophrenia prevented him from filing an earlier claim
for service connection.

The Board denied entitlement to an earlier effective
date, finding "there is simply no document that can be
construed as a claim for service connection for schizo-
phrenia associated with the claims file prior to June 9,
2005." The Board further explained that "even assuming,

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without deciding, that the veteran was physically or
mentally incapacitated prior to June 9, 2005, no statute,
regulation, or binding court precedent allows for 'equita-
ble tolling" of the period for filing an initial claim for
compensation." The United States Court of Appeals for
Veterans Claims affirmed the Board's decision.

We agree with the Secretary that summary affir-
mance is appropriate here. See Joshua v. United States,
17 F.3d 378, 380 (Fed. Cir. 1994) (summary affirmance of
a case is appropriate "when the position of one party is so
clearly correct as a matter of law that no substantial
question regarding the outcome of the appeal exists"). In
his informal brief, Tookes relies on equitable principles
that he should be provided a 1957 effective date in "the
interests of justice and equity."

Principles of equitable tolling, as claimed by Tookes,
are not applicable to the time period in 38 U.S.C.
§ 5110(a). See Andrews v. Principi, 351 F.3d 1134, 1137
(Fed. Cir. 2003); McCay v. Brown, 106 F.3d 1577, 1581
(Fed. Cir. 1997). This court in McCay explained that
"[a]]though equitable estoppel is available against the
government, it is not available to grant a money payment
where Congress has not authorized such a payment or the
recipient doesn't qualify for such a payment under appli-
cable statutes." Id. (citing Office of Pers. Mgmt. v. Rich-
mond, 496 U.S. 414, 426 (1990)).

To the extent that Tookes also argues in his brief that
his communications with the VA in 1957 constituted a
claim, this court held in Rodriguez v. West, 189 F.3d 1351,
1353 (Fed. Cir. 1999) that any claim for benefits must be
in writing. Thus, his communication that was not in
writing could not constitute a claim.

Accordingly,

IT IS ORDERED THAT:

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TOOKES v. DVA

(1) The Secretary's motion to waive the requirements
of Fed. Cir. R. 27(f) and to summarily affirm are granted.
The judgment of the Court of Appeals for Veterans Claims
is summarily affirmed. The motion to dismiss is denied
as moot.

(2) Each side shall bear its own costs.

FOR THE COURT

FEB 06 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Earnest Tookes
Christopher A. Bowen, Esq.
$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
. FEB 06 2012
JAN HORBALY
CLERK