Burl Anderson Howell v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BURL ANDERSON HOWELL,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1153
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-1119, Judge Joseph L. Falvey,
Jr.
______________________
Decided: June 6, 2024
______________________
BURL ANDERSON HOWELL , La Grange, NC, pro se.
L AUREL D ON H AVENS , III, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY , J R.,
P ATRICIA M. MC CARTHY .
______________________
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HOWELL v. MCDONOUGH 2
Before M OORE, Chief Judge, T ARANTO, Circuit Judge, and
CECCHI, District Judge.1
P ER CURIAM .
Burl Anderson Howell served honorably in the United
States Air Force from November 1970 to July 1971. In late
2013, acting on Mr. Howell’s 2012 application, the Depart-
ment of Veterans Affairs (VA) awarded him benefits for a
service-connected disability (based on a knee condition) un-
der 38 U.S.C. ch. 11 and a pension for a non-service-con-
nected disability (based on schizophrenia) under 38 U.S.C.
ch. 15. Mr. Howell then pursued additional relief through
multiple appeals and remands.
On September 22, 2022, the Board of Veterans’ Appeals
denied his request for a total disability rating based on in-
dividual unemployability. The Board advised Mr. Howell
that he had 120 days in which to file a notice of appeal to
the Court of Appeals for Veterans Claims (Veterans Court).
See 38 U.S.C. § 7266(a) (deadline for appeal). Mr. Howell
filed an appeal, but not until February 26, 2023, which was
37 days after the deadline.
In a decision by a single judge, the Veterans Court dis-
missed Mr. Howell’s appeal as untimely. Howell v.
McDonough, No. 23-1119, 2023 WL 4571789, at *1, *3 (Vet.
App. July 18, 2023). The court gave Mr. Howell several
opportunities to demonstrate facts that would justify equi-
tably tolling the filing deadline. Id. at *1–2. After consid-
ering Mr. Howell’s responses, the court determined that he
had not met the standards for equitable tolling because he
had not demonstrated that he was abandoned by his attor-
ney, that he had exercised due diligence in communicating
with his attorney during the period he sought to be tolled,
1 Honorable Claire C. Cecchi, District Judge, United
States District Court for the District of New Jersey, sitting
by designation.
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HOWELL v. MCDONOUGH 3
or that a knee surgery he underwent during that time had
rendered him incapable of handling his affairs. Id. at *2–
3. After the single judge denied Mr. Howell’s motion for
reconsideration, Supplemental Appendix (SAppx)6–7, the
Veterans Court granted Mr. Howell’s subsequent motion
for a panel decision and adopted the single-judge order as
the decision of the panel, SAppx4–5.
Mr. Howell appeals the Veterans Court’s dismissal.
Congress has generally confined our authority to reviewing
decisions by the Veterans Court on “relevant questions of
law” and declared that we “may not 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,” un-
less that challenge “presents a constitutional issue.” 38
U.S.C. § 7292(d); see also § 7292(a). We must dismiss Mr.
Howell’s appeal because it raises no issue within our lim-
ited jurisdiction.
Mr. Howell asserts that the Veterans Court’s decision
“involve[d] the validity or interpretation of a statute or reg-
ulation.” Petitioner Informal Br. at 1.2 He does not, how-
ever, identify a statute or regulation as to which the
Veterans Court rendered an interpretation or validity de-
cision that he is challenging in this appeal. See Petitioner
Informal Br. at 5. Nor does the decision of the Veterans
Court itself appear to interpret or consider the validity of
any statute or regulation. See Howell, 2023 WL 4571789,
at *1–3. It merely considers whether Mr. Howell demon-
strated the extraordinary circumstances required for equi-
tably tolling under longstanding legal standards,
themselves not challenged as legally incorrect. Id. at *2
(relying on standards of, e.g., Barrett v. Principi, 363 F.3d
1316, 1321 (Fed. Cir. 2004); Arbas v. Nicholson, 403 F.3d
2 All page citations to Mr. Howell’s filings are to the
page numbers inserted by this court’s Electronic Case Fil-
ing (ECF) system.
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HOWELL v. MCDONOUGH 4
1379, 1381 (Fed. Cir. 2005); Dixon v. Shinseki, 741 F.3d
1367, 1376 (Fed. Cir. 2014); Sneed v. McDonald, 819 F.3d
1347, 1351 (Fed. Cir. 2016)). The application of those
standards to the particular facts here is beyond our juris-
diction. Dixon, 741 F.3d at 1377–78.
Mr. Howell also argues that the Veterans Court vio-
lated his right to due process under the Fifth Amendment
of the U.S. Constitution by failing to give sufficient consid-
eration to VA records of a knee surgery he underwent dur-
ing the appeals period, a surgery that he asserts interfered
with his ability to file a notice of appeal. Specifically, he
argues that the Veterans Court was required to consider
VA records of his surgery under Lang v. Wilkie. Peti-
tioner’s Br. at 6 (citing 971 F.3d 1348 (Fed. Cir. 2020)). In
Lang, we remanded a veteran’s disability claim for consid-
eration by the Board of “new and material” evidence, which
we held it was required to consider under 38 C.F.R.
§ 3.156(b). 971 F.3d at 1351, 1355. Our decision concerned
a regulatory requirement, which is not at issue here, gov-
erning certain information the Board had to consider on
the merits; it was not a constitutional ruling concerned
with records the Veterans Court has to consider in deciding
on equitable tolling. In any event, the Veterans Court did
consider the evidence Mr. Howell submitted to it about his
knee surgery, and it simply determined that he had not
shown that the knee surgery justified his missing the filing
deadline. Howell, 2023 WL 4571789, at *1, *3. Mr. How-
ell’s Lang-based argument does not present a substantial
issue of legal error under Lang itself or of constitutional
error.
Finally, Mr. Howell argues that he was denied due pro-
cess because the Veterans Court did not sufficiently take
account of his diagnosis of schizophrenia in evaluating
whether he exercised due diligence in contacting his attor-
ney during the period for which he sought tolling. But
whether viewed as a constitutional or tolling matter, this
argument based on insufficient consideration of
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HOWELL v. MCDONOUGH 5
schizophrenia in relation to due diligence does not state an
error within our authority to address. He did not make an
argument explaining the effect of his schizophrenia on his
diligence in the Veterans Court, so that court did not decide
the issue, expressly or implicitly, that he now raises. Our
authority is limited to review of grounds that, expressly or
implicitly, were “relied on by the [Veterans] Court in mak-
ing the decision” appealed. 38 U.S.C. § 7292(a); see, e.g.,
Scott v. McDonald, 789 F.3d 1375, 1379–80 (Fed. Cir.
2015).
The government asserts, and the Veterans Court’s
opinion reflects, that Mr. Howell did not make a schizo-
phrenia-based argument for tolling to the Veterans Court.
Government’s Informal Br. at 13 n.3. Mr. Howell has not
said otherwise in this court, observing only that (as is un-
disputed) the Veterans Court well knew that he had schiz-
ophrenia. Petitioner’s Reply Br. at 5–7. But Mr. Howell
did not contend to the Veterans Court (and has not shown
here) that the mere presence of schizophrenia, for everyone
with the condition and the disability rating Mr. Howell has
based on it, undermines the ability to exercise due dili-
gence in meeting a deadline, including by adequately com-
municating with counsel. And it is uncontested that he
likewise did not make the necessary particularized argu-
ment, or a showing to support such an argument, of the
diligence-preventing effects of schizophrenia on himself—
an argument that would have had to contend with the evi-
dence of his activities in the period at issue indicating an
ability to see to his affairs. See Howell, 2023 WL 4571789,
at *3. In these circumstances, the Veterans Court decision
on appeal did not rest on a ruling on the issue Mr. Howell
now raises about the schizophrenia-diligence relationship,
an issue he did not raise in that court and with respect to
which the record on its face, even under a liberal construc-
tion, did not require the Veterans Court to make a deter-
mination sua sponte.
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HOWELL v. MCDONOUGH 6
Because Mr. Howell’s challenges to the Veterans
Court’s decision fall outside our limited jurisdiction, we
must dismiss Mr. Howell’s appeal.
The parties shall bear their own costs.
DISMISSED
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