             UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                                      NO . 04-584

                                         LARRY G. TYRUES, APPELLANT ,

                                                            V.


                                           ERIC K. SHINSEKI,
                               SECRETARY OF VETERANS AFFAIRS, APPELLEE .


                       Before KASOLD, Chief Judge, and HAGEL, MOORMAN,
                              LANCE, DAVIS, and SCHOELEN, Judges.1

                                                      ORDER

        In an en banc decision dated October 2, 2009, the Court (1) vacated an April 7, 2004,
decision of the Board of Veterans' Appeals (Board) denying Larry G. Tyrues entitlement to service
connection on a presumptive basis under 38 U.S.C. § 1117 for a respiratory or lung condition
resulting from an undiagnosed illness incurred in military service in the Persian Gulf and remanded
that matter for further proceedings; and (2) dismissed, for lack of jurisdiction, the appeal from a
September 29, 1998, Board decision denying Mr. Tyrues service connection for a lung disorder on
a direct basis under 38 U.S.C. § 1110.2 Tyrues v. Shinseki, 23 Vet.App. 166, 179-85 (2009)
(en banc). The Court concluded that "a final Board decision denying VA disability compensation
based upon direct service connection, while the consideration of benefits based upon presumptive
service connection is still under adjudication, constitutes a final decision subject to separate appeal
to the Court." Id. at 176 (discussing Elkins v. Gober, 229 F.3d 1369, 1373-76 (Fed. Cir. 2000)).
Specifically, as to the 1998 Board decision, the Court held that the decision was "final concerning
the issue of section 1110 compensation for direct service connection for a lung disability" and that,
"[b]ecause the appellant did not file a [Notice of Appeal (NOA)] within 120 days after VA mailed
notice of the Board's final September 1998 decision, the Court lacks jurisdiction to review the
September 1998 Board decision." Id. at 181 (citing 38 U.S.C. § 7266(a)). Mr. Tyrues appealed that
decision to the Federal Circuit.

      On February 11, 2011, the Federal Circuit affirmed this Court's holding that "the September
1998 Board decision was properly dismissed for lack of jurisdiction." Tyrues v. Shinseki, 631 F.3d

         1
           Judges Pietsch and Bartley did not participate in this decision because a full-Court conference was held in this
matter subsequent to the April 12, 2012, remand from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
and prior to their appointment. See Court's Internal Operating Procedures VII(b)(3) (En Banc Review Granted).

         2
           The 1998 Board decision also had remanded to a VA regional office, for further development, the matter of
service connection on the presumptive basis that, 5 years later, resulted in the April 2004 Board decision now on appeal.
1380 (Fed. Cir. 2011). The Federal Circuit agreed that the "non-remanded portion" of the 1998
Board decision was a final decision for the purpose of 38 U.S.C. § 7266(a) and held: "In light of
§ 7266's plain language, the policy considerations, and this court's precedent[,] all final decisions,
even those appearing as part of a mixed decision [(i.e., a decision containing remanded and non-
remanded portions)], must be appealed within 120 days from the date of mailing of notice of the
decision." Id. at 1385. Mr. Tyrues filed a petition for writ of certiorari, which the U.S. Supreme
Court granted, and the Supreme Court vacated the judgment of the Federal Circuit and remanded the
case to the Federal Circuit for further consideration in light of Henderson v. Shinseki, 131 S. Ct.
1197 (2011) (Henderson III), which held that the 120-day deadline for filing an appeal with this
Court–although an important procedural rule–does not have jurisdictional consequences. Tyrues v.
Shinseki, 132 S. Ct. 75 (2011).

       In an April 12, 2012, order, the Federal Circuit, in turn, vacated this Court's judgment and
remanded the case "for further proceedings to determine whether the non-jurisdictional nature of the
120-day deadline should lead to a different result." Tyrues v. Shinseki, No. 2010-7011, 467 F. App'x
889, 2012 WL 1389702 (Fed. Cir. Apr. 12, 2012). The Federal Circuit issued mandate on June 4,
2012.

        After reviewing the Court's October 2, 2009, decision, the Court has determined that the
nonjurisdictional nature of the 120-day deadline does not lead to a different result. The result
reached by the Court was that the 1998 Board decision was a final decision on the matter of
entitlement to service connection for a lung disorder on a direct basis under section 1110; and
dismissal of that part of the appellant's April 2004 appeal as to the 1998 Board decision was
appropriate because Mr. Tyrues failed to file an NOA within 120 days after the 1998 Board decision
was mailed, as required under 38 U.S.C. § 7266(a). Tyrues, 23 Vet.App. at 180-82.

        Although the 120-day deadline is no longer jurisdictional, it is an "important procedural rule,"
Henderson III, 131 S. Ct. at 1206, and is subject to equitable tolling within the parameters
established by the Federal Circuit and this Court prior to Henderson v. Peake, 22 Vet.App. 217
(2008) (Henderson I) (holding that equitable tolling was not for application under any
circumstances), aff'd sub nom. Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc)
(Henderson II), rev'd, 131 S. Ct. 1197 (2011). Bove v. Shinseki, 25 Vet.App. 136 (2011) (per curiam
order) (citing cases).

        A review of the docket in this case reveals that Mr. Tyrues filed his appeal in April 2004,
prior to Henderson I, which held in 2008 that equitable tolling of the 120-day filing period was not
permitted. At the time he filed his briefs with this Court, however, in November 2004 and February
2005, the 120-day period was subject to equitable tolling, yet he presented no argument that the time
to file an appeal from the 1998 Board decision should be equitably tolled. Similarly, although
Mr. Tyrues was given an opportunity to brief the impact of Henderson III prior to the Federal
Circuit's recent decision remanding this matter to this Court, see Tyrues v. Shinseki, 2010-7011




                                                   2
(Fed. Cir. Mar. 22, 2012) (order), he did not argue that the time to file should be equitably tolled.3
Rather, throughout this litigation, Mr. Tyrues has only pursued the argument that VA "incorrectly
split [his] singular claim for service-connected lung disorder into two claims based upon differing
theories of etiology." Appellant's Brief at 9.

        As discussed in the Court's October 2009 decision, the Federal Circuit in Elkins held that,
"[b]ecause . . . each 'particular claim for benefits' may be treated as distinct for jurisdictional
purposes, a veteran's claims may be treated as separable on appeal." 229 F.3d at 1376. Further, "the
unique statutory process of adjudication through which veterans seek benefits may necessarily
require that the different issues or claims of a case be resolved at different times, both by the agency
of original jurisdiction and on appeal." Id. at 1375. In recently quoting this conclusion, the Federal
Circuit in Sturdivant v. Shinseki, No. 2011-7001, 2012 WL 1720380 (Fed. Cir. May 16, 2012)
(nonprecedential opinion), explained: "This flexible system benefits veterans by permitting
adjudication of issues as they become ripe while allowing the VA time to appropriately develop other
issues or claims." Id. at *3.

        Accordingly, because the appellant (1) did not file an NOA within 120 days after VA mailed
the Board's September 1998 decision, (2) filed no asserted appeal for more than 5 years thereafter,
and (3) did not assert that the time to file his appeal should be equitably tolled, the Court reaffirms
its 2009 decision that any appeal from the September 1988 Board decision was required to have been
filed within the 120-day period. See 38 U.S.C. § 7266(a); Elkins, supra.

         Upon consideration of the foregoing, it is

        ORDERED that this Court's October 2, 2009, decision dismissing the appeal as to the
September 29, 1998, Board decision is MODIFIED, as discussed above, to reflect that (1) the
120-day deadline is nonjurisdictional but nevertheless an important procedural rule subject to
equitable tolling, not argued or warranted in this case; (2) the nonjurisdictional nature of the 120-day
rule does not alter the Court's holding that the 1998 Board decision was final on the matter of
entitlement to service connection for a lung disorder on a direct basis under 38 U.S.C. § 1110; and
(3) dismissal of the April 2004 appeal as to the 1998 Board decision was appropriate. Judgment on
the Court's October 2, 2009, decision, as MODIFIED, shall enter in accordance with Rule 36 of the
Court's Rules of Practice and Procedure.

DATED: August 23, 2012                                                     PER CURIAM.


       HAGEL, Judge, concurring in the result, dissenting in part: I continue to concur in the
majority's ultimate conclusion that the Court cannot review the September 1998 Board decision


         3
            The Court takes judicial notice of the parties' pleadings filed in this case at the Federal Circuit. See Cotant
v. Principi, 17 Vet.App. 116, 125 (2003) (taking judicial notice of pleadings, including the parties' arguments regarding
legislative and regulatory history, that had been filed in another case pending before the Court).

                                                            3
because no Notice of Appeal was filed within 120 days of that decision. I also concur in the
majority's new analysis regarding the applicability of equitable tolling. However, I again write
separately to reiterate my belief, first stated in my separate statement to the October 2009 decision,
that our inability to review the September 1998 Board decision stems from the fact that a claim for
benefits for a chronic lung disorder is a separate and distinct claim for VA compensation purposes
from a claim for benefits for Persian Gulf Syndrome under 38 U.S.C. § 1117. I need not restate the
entirety of my earlier separate statement here; suffice it to say that my position is unchanged.

         LANCE, Judge, with whom SCHOELEN, Judge, joins concurring in part and dissenting in
part: I continue to concur in the majority's outcome on the theory addressed in the majority opinion
in Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc) (Tyrues I). I also concur in the majority's
new analysis regarding the applicability of equitable tolling. However, I again write separately to
state that I continue to disagree, for the reasons outlined in my dissent in Tyrues I, with the majority's
conclusion that we lack jurisdiction over the entire claim. As with my other dissenting colleague,
I will not restate my prior opinion here. However, there are two points that are worth noting at this
stage.

         First, although there is no evidence that the appellant in this particular case could carry his
burden to prove equitable tolling, the fundamental problem is still one of protecting the appellate
rights of unsophisticated claimants who diligently pursue their claims. As I pointed out in my
original dissent, the majority opinion is based upon the veteran-unfriendly presumption that this
Court's decision provides adequate notice to unrepresented claimants that they must immediately
appeal a bifurcated decision or lose their appellate rights. 23 Vet.App. 166, 195 (2009) (Lance, J.,
concurring in part and dissenting in part). Thus, it is entirely possible for a claimant to diligently
contest his or her claim only to discover that he or she has forfeited part of it because it is not
obvious to a lay person that a Board decision must be appealed immediately when part of a claim
has been remanded for further consideration. However, the solution to protecting diligent claimants
is not to sub silentio overrule this Court's decision by applying equitable tolling in the absence of
evidence. Rather, it is to simply base our decision on a realistic expectation of diligence on the part
of claimants who lack attorneys to advise them. Accordingly, the Supreme Court's decision to
remand this matter for further consideration in light of Henderson v. Shinseki, 131 S.Ct. 1197 (2011),
highlights one of the central flaws of the majority opinion.

        Second, I am compelled to note that the Federal Circuit's first decision in this case does not
appear to actually address the situation presented by the facts of the case. See Tyrues v. Shinseki,
631 F.3d 1380 (Fed. Cir. 2011), vacated, 132 S. Ct. 75 (2011) (mem.). The Federal Circuit framed
the issue as "whether the non-remanded portion of a mixed decision from the Board is final." Id. at
1383. However, this case is not about a "mixed decision," where the Board denies one claim while
remanding another. This case is about the finality of a single claim that the Board bifurcates based
upon different theories. Accordingly, when the Federal Circuit held that "[s]eparate claims are
separately appealable. Each particular claim for benefits may be treated as distinct for jurisdictional
purposes," id., it misses the mark.



                                                    4
        It is well established that separate claims are jurisdictionally separate, see, e.g., Elkins v.
Gober, 229 F.3d 1369, 1376 (Fed. Cir. 2000), and that all theories of entitlement to benefits for a
particular condition are part of the same claim, see Schroeder v. West, 212 F.3d 1265, 1271
(Fed. Cir. 2000); see also Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) (holding that the scope of
a claim is generally defined by the symptoms for which a veteran is seeking compensation).
Allowing separate claims addressed within one Board decision to be treated separately for purpose
of appeal promotes speedy and efficient resolution of claims. Defining claims broadly to encompass
all theories of entitlement is beneficial to veterans because it provides them with broad assistance
and the earliest possible effective date in the frequent situation where the veteran is entitled to
compensation for his condition, but the initial theory of the case is not the one that leads to benefits.

        The hard question presented by this case is how to handle VA's practice of bifurcating a
single claim and adjudicating different theories separately. That is the question to which the system
needs a clear answer. I believe it is necessary and appropriate to point it out at this juncture so that
when this case is again reviewed by the Federal Circuit, it can provide clear guidance in announcing
whatever conclusion it reaches.

         It is not common for a claim to be bifurcated based upon the Gulf War illness statute and the
traditional compensation statute. However, it is quite common to see a claim where the theories of
direct, presumptive, or secondary service connection have been bifurcated. If the majority opinion
is affirmed, the courts will eventually have to sort through the myriad of ugly procedural issues that
arise under Title 38 when the statutory term "claim" does not actually mean "claim," at least some
of the time. See Tyrues I, 23 Vet.App. at 195-96 (Lance, J., concurring in part and dissenting in part)
(outlining several of the statutory interpretation problems created by the majority opinion). If the
majority's opinion is rejected, then the system will need to adjust the handling of a large number of
cases to conform to the new interpretation. Although the proper outcome may be debatable, no final
resolution is certainly the worst possible outcome.

        Nevertheless, to be clear, I have great respect for the court above and I do not relish critiquing
their decision. However, I believe that there are certain circumstances in which we are obligated to
raise an issue that may frustrate our ability to follow the Federal Circuit's mandate. See, e.g., Hayre
v. Principi, 15 Vet.App. 48, 52-54 (2001). This is one of those times.

        Accordingly, for the reasons stated, I continue to stand by my prior dissent and I urge the
Federal Circuit to clearly and directly address this issue of exceptional importance when this matter
returns to that court.




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