NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
EARNEST TOOKES,
Claiman.t-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, "
Responder.t-Appellee.
2011-7189
Appea1 from the United Stat;es Court of Appeals for
Veterans Claims in case n0. 09-4465, Judge Kenneth B.
Kramer.
ON MOTION
Before LoUR1E, PRos'r, and MooRE, Circuit Judges.
PER CURLA_M.
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 afE.rm. Tookes has not responded

TOOKES V. DVA 2
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. lnitially, 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 applicati0n.
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 53-red 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, Hnding “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,

3 TOOKES V. DVA
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
c0mpensation." 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 Joshu,a v. United States,
17 F.3d 378, 380 (Fed. Cir. 1994) (summary aMrrnance 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 To0kes,
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 u. Brown, 106 F.3d 1577, 1581
(Fed. Cir. 1997). This court in McCay explained that
"[a]lthough 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 Rodrigu.ez u. 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:

TOOKES V. DVA 4
(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  lsi Jan Horbaly _
Date J an Horbaly
Clerk
cc: Earnest Tookes F"_°_ED
Chr1stopher A. Bowen, Esq. 'u3?E|té\éIE'B€1§AA{.P‘§Eé?:lUS“f0R
s20 f
. FEB 0 6 £U1'Z
.lAN HORBAlY
CLERK

