          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

                                           NO. 18-6117

                                CHARLES J. RAYBINE, APPELLANT,

                                                 V.

                                     ROBERT L. WILKIE,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                      Before GREENBERG, TOTH, and FALVEY, Judges.

                                            ORDER

       PER CURIAM. GREENBERG, Judge, filed a dissenting opinion.

        On October 19, 2017, the Board of Veterans' Appeals mailed self-represented veteran
Charles J. Raybine a decision denying entitlement to an earlier effective date for service-connected
post-traumatic stress disorder (PTSD). Mr. Raybine filed a motion for reconsideration of the Board
decision on July 11, 2018; the motion was denied on September 12, 2018. On November 2, 2018,
Mr. Raybine filed a Notice of Appeal (NOA) of the October 2017 Board decision.

        On January 3, 2019, the Secretary moved to dismiss the appeal as untimely, arguing that
the veteran had not asserted a compelling reason for his failure to submit a timely NOA nor alleged
any factors that might allow him to invoke equitable tolling. Secretary's Motion at 3-4 (citing Irwin
v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)). The Secretary also filed a motion to stay
proceedings, which the Court granted.

        The Court ordered Mr. Raybine to show cause as to why his appeal should not be dismissed
as untimely. In his response, Mr. Raybine stated that he had difficulty obtaining additional
information relevant to his claim. Appellant's Response at 1. He explained that, during service, he
participated in human experimentation at Aberdeen Proving Ground in Aberdeen, Maryland. He
indicated that when he received his records from the National Personnel Record Center (NPRC),
they did not contain evidence of medical treatment or indicate that he participated in human
experimentation. The NPRC directed him to contact the Aberdeen Proving Ground. Upon doing
so, he was informed that, because the records were sealed, he had to provide additional
information. Mr. Raybine explained that he called the Aberdeen Proving Ground multiple times
before he obtained his records. He also noted that his "wife had to do everything because [he] was
not able to handle things." Appellant's Resp. at 5.

        Generally, to obtain Court review of an adverse Board decision, the appellant must submit
an NOA to the Court within 120 days of the date on which the Board's decision was mailed.
38 U.S.C. § 7266. Here, 120 days from the date of the Board decision was February 16, 2018, and
the veteran did not file his NOA until November 2018.
        There is, however, an exception to the general rule when an appellant seeks reconsideration
of the Board decision. If a "claimant files a motion for reconsideration with the Board during the
120-day judicial appeal period, the finality of the initial Board decision is abated by that motion
for reconsideration." Threatt v. McDonald, 28 Vet.App. 56, 60 (2016) (per curiam order) (citing
Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991)). Here, the veteran filed his motion for
reconsideration of the Board decision in July 2018. Because he filed his motion for reconsideration
more than 120 days from the date that the Board mailed its October 2017 decision (specifically,
by February 16, 2018), he is not entitled to the benefit of the exception described in Threatt and
Rosler.

        Thus, because the appellant filed his NOA outside the 120-day filing period, he may
maintain this appeal only if he demonstrates entitlement to equitable tolling. Under certain
circumstances, the 120-day appeal period is subject to equitable tolling when extraordinary
circumstances preclude timely filing of an NOA, despite the exercise of due diligence. See Bove
v. Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam order), overruled in part on other grounds
by Dixon v. McDonald, 815 F.3d 799, 803 (Fed. Cir. 2016).

        To establish equitable tolling, the appellant must demonstrate (1) an extraordinary
circumstance; (2) due diligence exercised in attempting to file; and (3) a connection between the
extraordinary circumstance and failure to timely file. See Toomer v. McDonald, 783 F.3d 1229,
1238 (Fed. Cir. 2015); Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014); McCreary v.
Nicholson, 19 Vet.App. 324, 332 (2005), adhered to on reconsideration, 20 Vet.App. 86 (2006).
"Equitable tolling is not limited to a small and closed set of factual patterns," and the Court must
consider equitable tolling on a "case-by-case basis," "avoiding mechanical rules," and observing
"the need for flexibility." Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013) (internal quotation
marks omitted). It is the appellant's burden to produce any evidence necessary to support his or her
argument for equitable tolling. Palomer v. McDonald, 27 Vet.App. 245, 251 (2015) (per curiam
order).

       Here, the veteran's response suggested that he may be entitled to equitable tolling based on
mental illness or the inability to obtain medical files concerning a classified experiment.

        First, with regard to mental illness, an appellant may be entitled to equitable tolling upon a
showing that mental illness rendered the appellant incapable of handling his own affairs. Barrett
v. Principi, 363 F.3d 1316, 1321 (Fed.Cir. 2004). However, the veteran must offer more than a
medical diagnosis or vague assertions of mental problems. Id. Mr. Raybine indicated that his
service-connected PTSD rendered him unable to "handle things." Appellant's Resp. at 1. However,
this does not establish that his condition rendered him incapable of "rational thought or deliberate
decision making . . . or incapable of handling [his] own affairs or unable to function [in] society."
Barrett, 363 F.3d at 1321. Rather, as Mr. Raybine states in his response, he sold his business and
two homes as well as communicated repeatedly with VA and the Aberdeen Proving Ground to
obtain his medical records seemingly during the filing period. See Barrett, 363 F.3d at 1321. We
are not persuaded that Mr. Raybine's service-connected PTSD rendered him incapable of handling
his affairs under the standard set out in the case law.




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        Second, as to an inability to obtain records from Aberdeen Proving Ground regarding a
classified experiment in which he participated, Mr. Raybine has not indicated how this constituted
an extraordinary circumstance or prevented him from timely filing the motion for Board
reconsideration despite due diligence in trying to do so. 1 An extraordinary circumstance is one
beyond the veteran's control. McCreary, 19 Vet. App. at 332. Assuming that the delayed response
from Aberdeen Proving Ground satisfies this criterion, there is no argument before the Court how
Mr. Raybine's late filing was a direct result of this circumstance. The relevant case law endorses
equitable tolling in situations where a veteran sought to file in a timely manner but was prevented
from doing so, such as by physical or mental infirmity, misinformation from a VA employee,
homelessness, or potential third-party interference with the mail. See James v. Wilkie, 917 F.3d
1368, 1373-74 (Fed. Circ. 2019); Checo, 748 F.3d at 1381; Bailey v. West, 160 F.3d 1360, 1365-
68 (Fed. Cir. 1998) (en banc). But in cases where an appellant has not shown that circumstances
beyond his or her control prevented timely filing, we have found equitable tolling unwarranted.
See, e.g., Smith v. Wilkie, 30 Vet.App. 205, 209-10 (2018) (concluding that an incarcerated veteran,
contra his assertions, was not precluded from communicating with his representative and filing an
NOA); McCreary, 20 Vet.App. at 91-92 (finding that a hurricane, although an extraordinary
circumstance, did not prevent timely filing in that case).

        Although the veteran has not explained how attempting to obtain these records was an
extraordinary circumstance, even if the Court were to consider it an extraordinary circumstance,
Mr. Raybine fails to demonstrate why attainment of these records was necessary for him to file his
motion for reconsideration of the October 2017 Board decision that denied an earlier effective date
for PTSD. Generally, the effective date of an award of compensation will be the date of receipt of
the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.
Mr. Raybine did not file a claim for service connection for PTSD until July 2010, which appears
to be the earliest effective date for which he could receive benefits. It is unclear how records from
the Aberdeen Proving Ground indicating that he underwent human experimentation in 1962, which
goes to whether he suffered an in-service injury—a matter that is not in dispute—would establish
that he filed his claim for PTSD any earlier than July 2010, necessitating that the records be
obtained before he submitted his motion for Board reconsideration.

       Although the Court is sympathetic to the veteran's situation, he has not presented argument
or evidence demonstrating that his situation constituted an extraordinary circumstance that
ultimately caused the untimely filing of the motion for Board reconsideration. Thus, Mr. Raybine's
equitable tolling argument fails. The Court will therefore grant the Secretary's motion to dismiss
the appeal.

        Upon consideration of the foregoing, it is

        ORDERED that the January 3, 2019, stay of proceedings is lifted. It is further




        1
           The Court notes that Mr. Raybine arguably met the due diligence element for equitable tolling because he
began contacting the Aberdeen Proving Ground for information about the experiment in which he participated shortly
after receiving records from the NPRC that did not contain such information, faxed the necessary information, and
continued contacting the facility for the records. Appellant's Resp. at 1-2.


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     ORDERED that the Secretary's motion to dismiss is granted and this appeal is
DISMISSED.

DATED: September 13, 2019                                            PER CURIAM.


       GREENBERG, Judge, dissenting: The Supreme Court never suggested "that extraordinary
circumstances must exist to allow a veteran to untimely appeal to the Court." Lopez v. O'Rourke,
30 Vet.App. 103, 107 (Greenberg, J., dissenting).
        Perhaps there is an acceptable standard for equitable tolling that falls somewhere between
the extraordinary circumstances standard the Court continues to blindly adhere to and the
"intentional disregard" standard that I articulated in Lopez. Id.
        However, until the Federal Circuit further defines the outer limits of what circumstances
warrant tolling, I continue to believe that the Court is applying a higher standard than what the
Supreme Court intended. As I acknowledged in Lopez, "Justice Alito, on behalf of the Henderson
Court found that jurisdictional consequences were not intended to attach to the statutory 120-day
limit, relying on the 'high degree of informality and solicitude' afforded to veterans and that the
veterans claims adjudication system was 'unusually protective' of claimants." Id. quoting
Henderson ex. Rel. Henderson v. Shinseki, 562 U.S. 431, 437 (2011); see James v. Shulkin, 29
Vet.App. 127, 131 (2017) ("The Supreme Court's decision in Henderson v. Shinseki, and the
repeated admonishments from the Federal Circuit for denying equitable tolling have changed the
fundamental approach to the timely filing requirement.") (Greenberg, J., dissenting); see also
James v. Wilkie, 917 F.3d 1368, 1371-74 (Fed. Cir. 2019) (vacating and remanding James v.
Shulkin because the Court "applied the improper legal standard" in determining that equitable
tolling was not warranted).
       Although each equitable tolling matter should be decided on a case-by-case basis, such an
individual analysis is a fool's errand when the wrong standard is being applied in each case.
        This veteran suffers from PTSD from his participation in service as a human test subject.
In a similar case, I implored my colleagues to "properly examine . . . our inherent constitutional
power to apply equitable remedies where Congress has not expressly authorized a result." Taylor
v. Wilkie, 31 Vet.App. 147, 159 (2019) (Greenberg, J., dissenting) quoting U.S. CONST. ART. III,
§ 2, CL. 1 ("The judicial power shall extend to all cases, in law and equity"). Again, the Court has
instituted a self-imposed barrier to deny a veteran.
       For this reason, I respectfully dissent.




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