Matthew C. Ford, Jr. v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MATTHEW C. FORD, JR.,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2336
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-7135, Judge Joseph L. Falvey,
Jr.
______________________
Decided: March 11, 2024
______________________
MATTHEW C. F ORD, J R ., Nazareth, PA, pro se.
MARGARET J ANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, P ATRICIA M. MCC ARTHY , L OREN MISHA
P REHEIM .
______________________
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FORD v. MCDONOUGH 2
Before D YK, SCHALL , and HUGHES , Circuit Judges.
P ER CURIAM .
Matthew C. Ford, Jr., a veteran of the United States
Army, proceeding pro se, appeals from an order of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”) dismissing as untimely his appeal of a Board
of Veterans’ Appeals (“Board”) decision. Mr. Ford primar-
ily argues that the Veterans Court erred in declining to toll
the 120-day time limit to file a Notice of Appeal (“NOA”),
which he contends should have been done because a De-
partment of Veterans Affairs (“VA”) form suggested to him
that he had one year to request a review. As to this claim,
we affirm the Veterans Court. Mr. Ford’s informal brief
also argues an alternative basis for equitable tolling—that
he has health problems, including fatigue related to a thy-
roid disorder, that should have excused his late filing. As
to this claim, we dismiss for lack of jurisdiction. We there-
fore affirm in part and dismiss in part.
BACKGROUND
Mr. Ford served on active duty in the United States
Army from August 1969 to July 1971. He sought benefits
for service-connected hypothyroidism, and an initial rating
decision assigned him a 10 percent disability rating effec-
tive April 25, 2017. Mr. Ford appealed to the Board, seek-
ing an increased disability rating. In a decision dated May
5, 2022, the Board modified the initial rating decision. The
Board found that the initial rating was warranted, found
that a rating of 10 percent was also warranted for the pe-
riod from March 13 to April 25, 2017, and denied the re-
quested increase.
Under 38 U.S.C. § 7266(a), an individual seeking re-
view of an adverse Board decision in the Veterans Court
must file an NOA within 120 days. This period is subject
to equitable tolling. James v. Wilkie, 917 F.3d 1368, 1372
(Fed. Cir. 2019). The deadline for Mr. Ford’s NOA was
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FORD v. MCDONOUGH 3
September 2, 2022, but Mr. Ford did not file his NOA until
December 6, 2022. The Secretary of Veterans Affairs
moved to dismiss Mr. Ford’s appeal as untimely. The Vet-
erans Court ordered Mr. Ford to explain why his appeal
should not be dismissed. Mr. Ford responded, arguing that
a VA document showed that he had one year to request a
review of the decision and that he suffered from fatigue be-
cause of his thyroid disorder.
The Veterans Court found that Mr. Ford’s NOA was
untimely, and that equitable tolling was not warranted. As
to Mr. Ford’s argument that a VA document showed that
he had one year to file, the Veterans Court found that the
deadline on the document (VA Form 20-0998) “applies only
to review of a decision by VA and not review by [the Veter-
ans] Court,” and that Mr. Ford’s apparent misunderstand-
ing was not an extraordinary circumstance that prevented
him from timely filing his NOA. S.A. 3. As to Mr. Ford’s
argument concerning his fatigue, the Veterans Court found
that “he ha[d] not shown that his condition rendered him
incapable of handling his own affairs such that it precluded
him from filing his NOA for the period that he is seeking to
toll.” S.A. 3. The Veterans Court dismissed the appeal.
This appeal followed.
D ISCUSSION
I
“Our jurisdiction to review a judgment of the [Veterans
Court], set forth in 38 U.S.C. § 7292, is highly circum-
scribed.” Leonard v. Gober, 223 F.3d 1374, 1375 (Fed. Cir.
2000). Under 38 U.S.C. § 7292(d)(1), on review of a Veter-
ans Court decision we are to “decide all relevant questions
of law.” However, “[e]xcept to the extent that an appeal
under this chapter presents a constitutional issue, [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.” Id. § 7292(d)(2).
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FORD v. MCDONOUGH 4
The Secretary contends, citing Leonard, that we lack
jurisdiction to review the Veterans Court’s decision and
should dismiss Mr. Ford’s appeal. We disagree. We have
jurisdiction over Mr. Ford’s first theory. The question of
whether the existence of the VA form requires equitable
tolling appears to be a legal issue over which we have ju-
risdiction. See Toomer v. McDonald, 783 F.3d 1229, 1239
(Fed. Cir. 2015). Mr. Ford’s informal brief does not dispute
any of the material facts relied on by the Veterans Court
concerning his reliance on the VA form, nor does it chal-
lenge a law as applied to the facts of his case. Accordingly,
we have jurisdiction under 38 U.S.C. § 7292 to determine
whether the Veterans Court applied the correct legal
standard for equitable tolling as to Mr. Ford’s theory that
he was misled by the VA form.
Mr. Ford’s informal brief also notes that he and his wife
attended frequent medical visits, which “occup[ied] a lot of
[his] time and concentration.” Informal Br. of Appellant at
8 (emphasis omitted). To the extent that Mr. Ford argues
that his medical appointments prevented him from timely
filing his NOA, Mr. Ford did not present this argument to
the Veterans Court, and we decline to consider it for the
first time on appeal. See Morgan v. Principi, 327 F.3d
1357, 1364 (Fed. Cir. 2003). To the extent that Mr. Ford
asks us to review the Veterans Court’s holding that his thy-
roid condition was not an extraordinary circumstance be-
cause he did not show that it rendered him incapable of
handling his own affairs, we lack jurisdiction because the
Veterans Court simply applied established law to the facts
of this case. 38 U.S.C. § 7292(d)(2).
II
For equitable tolling to be warranted, a claimant must
show an extraordinary circumstance, due diligence, and
causation. Toomer, 783 F.3d at 1238. Equitable tolling is
not limited to a closed set of fact patterns, and the extraor-
dinary circumstance element must be considered “on a
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FORD v. MCDONOUGH 5
‘case-by-case basis.’” James, 917 F.3d at 1373 (quoting Hol-
land v. Florida, 560 U.S. 631, 650 (2010)).
In his informal brief, Mr. Ford argues that he is enti-
tled to equitable tolling because VA Form 20-0998 is “very
deceitful and offensive” and “states quite glaringly ‘you
have 1 year from the date on your decision notice.’” Infor-
mal Br. of Appellant at 7 (emphasis omitted) (quoting VA
Form 20-0998). But on its face the notice only applies to
appeals within the VA. The Veterans Court is not a unit of
the VA. The record shows that the Board decision in
Mr. Ford’s case included a copy of VA 10183-SB that states
that the deadline for an appeal to the Veterans Court is
“120 days from [the] date on your VA decision.” The Vet-
erans Court found, citing Toomer, that “[a]lthough it is un-
fortunate that Mr. Ford misunderstood the VA form, such
a situation is not an extraordinary circumstance.” S.A. 3.
We see no legal error in this analysis. The Veterans Court
engaged in a case-specific analysis based on the facts of
Mr. Ford’s appeal, and we do not read the decision as an-
nouncing a categorical rule that a confusing or deceitful VA
form can never justify equitable tolling. Instead, we read
the Veterans Court as properly holding that Mr. Ford had
not shown an extraordinary circumstance on the undis-
puted facts of his case.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
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