       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               EMILIO T. PALOMER,
                Claimant-Appellant

                           v.

     ROBERT A. MCDONALD, SECRETARY OF
            VETERANS AFFAIRS,
               Respondent-Appellee
             ______________________

                      2015-7082
                ______________________

    Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1017, Chief Judge Bruce E.
Kasold, Judge Mary J. Schoelen, Judge William S. Green-
berg.
                ______________________

                Decided: April 26, 2016
                ______________________

    ANGELA K. DRAKE, The Veterans Clinic at the Univer-
sity of Missouri School of Law, Columbia, MO, argued for
claimant-appellant.

    TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
2                                    PALOMER   v. MCDONALD



SCOTT D. AUSTIN, ALEXANDER V. SVERDLOV; DAVID J.
BARRANS, CHRISTINA LYNN GREGG, Office of General
Counsel, United States Department of Veterans Affairs,
Washington, DC.
                ______________________

      Before LOURIE, BRYSON, and DYK, Circuit Judges.
BRYSON, Circuit Judge.
    Emilio T. Palomer appeals from a decision of the
Court of Appeals for Veterans Claims (“the Veterans
Court”). The Veterans Court dismissed, on timeliness
grounds, Mr. Palomer’s appeal from a decision by the
Board of Veterans’ Appeals that denied Mr. Palomer a
payment from the Filipino Veterans Equity Compensation
Fund (“FVECF”). We affirm.
                             I
    The FVECF was established in 2009. It provides for a
one-time payment to individuals who served in specific
military organizations that aided the United States
Armed Forces in the Philippines during World War II.
    Shortly after the FVECF was established, Mr. Palo-
mer, a resident of the Philippines, filed a claim for a
payment from the fund. A regional office of the Depart-
ment of Veterans Affairs (“DVA”) sought to confirm Mr.
Palomer’s service in a qualifying organization by contact-
ing the National Archive’s National Personnel Records
Center (“NPRC”). The NPRC responded that it had no
record of Mr. Palomer’s service in any of the organizations
recognized by the FVECF. For the next four years, the
regional office repeatedly attempted to confirm Mr. Palo-
mer’s service by submitting variations of both his name
and service number. All of those attempts proved fruit-
less, and Mr. Palomer’s service in a qualifying organiza-
tion was never confirmed.
PALOMER   v. MCDONALD                                      3



    After the regional office denied Mr. Palomer’s request
for benefits, he appealed to the Board. On July 10, 2013,
the Board issued an opinion finding that Mr. Palomer did
not have the requisite service in any of the organizations
recognized by the FVECF. The Board’s opinion was
mailed to Mr. Palomer on the day it issued. The opinion
was accompanied by a copy of VA Form 4597 entitled
“Your rights to appeal our decision.” That form includes
the statement “How long do I have to start my appeal to
the Court? You have 120 days from the date this decision
was mailed to you.” 1
    On November 20, 2013, 133 days after the Board’s
opinion was issued and mailed, Mr. Palomer mailed a
one-page letter to the Board stating: “I would like to file
an appeal with regards to your decision denying my
personal claim to the one time settlement payment from
the Filipino Veterans Equity Compensation Fund.” The
letter expressed Mr. Palomer’s desire to provide “oral
narration and testimony” to prove that he served during
World War II as a guerilla. The Board received that
document on December 4, 2013.
    The Board treated Mr. Palomer’s November 20 letter
as a request for reconsideration of its earlier decision, and
on December 26, 2013, the Board denied the request. On
March 18, 2014, Mr. Palomer mailed a notice of appeal to
the Veterans Court, which docketed the appeal on April 7,
2014.



    1   A section of Form 4597 entitled “How do I file a
motion for reconsideration” states: “Remember, the Board
places no time limit on filing a motion for reconsideration,
and you can do this at any time. However, if you also
plan to appeal this decision to the Court, you must file
your motion within 120 days from the date of this deci-
sion.”
4                                     PALOMER   v. MCDONALD



    The DVA moved to dismiss Mr. Palomer’s appeal on
the ground that that his motion for reconsideration was
not filed within 120 days of the date that the Board’s
original decision was mailed to him, and therefore his
subsequent appeal to the Veterans Court was untimely
under 38 U.S.C. § 7266(a). That statute provides that “a
person adversely affected by [a Board] decision shall file a
notice of appeal with the Court within 120 days after the
date on which notice of the decision is mailed.” A motion
for reconsideration filed with the Board tolls the period
for filing a notice of appeal to the Veterans Court, but
only if the motion for reconsideration is filed within 120
days of the Board’s original decision. See Rosler v. Der-
winski, 1 Vet. App. 241, 245 (1991).
    The Veterans Court dismissed Mr. Palomer’s appeal
as untimely. The court held that Mr. Palomer had not
shown that he was entitled to equitable tolling of the 120-
day appeal period, either because of the delay caused by
international mail service in his receipt of the Board’s
decision; because of his age and physical condition; or
because of the allegedly confusing instructions regarding
the 120-day deadline for filing a notice of appeal.
                             II
    Mr. Palomer argues that the Veterans Court commit-
ted legal error by not invoking equitable tolling to excuse
his failure to meet the statutory 120-day appeal period. 2



    2   Although the government argues that this court
lacks jurisdiction to decide the equitable tolling issue
under 38 U.S.C. § 7292, we have held that when the
material facts are not in dispute and the adoption of a
particular legal standard would dictate the outcome of the
equitable tolling claim, the question of the availability of
equitable tolling is a matter of law that we are authorized
by statute to address. Sneed v. McDonald, No. 15-7069,
PALOMER   v. MCDONALD                                      5



    Following the decision of the Supreme Court in Hen-
derson ex rel. Henderson v. Shinseki, 562 U.S. 428, 431
(2011), which held that the 120-day period for appeals to
the Veterans Court is not jurisdictional, this court has
treated that filing period as subject to equitable tolling.
See, e.g., Checo v. Shinseki, 748 F.3d 1373, 1380 (Fed. Cir.
2014); Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir.
2013). To prove entitlement to equitable tolling, however,
a claimant must bear the burden of establishing “(1) that
he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and
prevented timely filing.” Sneed v. McDonald, No. 15-
7069, at 6; Toomer v. McDonald, 783 F.3d 1229, 1238
(Fed. Cir. 2015); Checo, 748 F.3d at 1378.
    Mr. Palomer contends that he satisfies that test be-
cause he pursued his rights diligently and because he was
presented with two extraordinary circumstances: (1) the
time it took the Board’s opinion to reach him in the Phil-
ippines and (2) his physical condition, which required him
to obtain assistance in filing papers with the DVA and the
Veterans Court. Mr. Palomer also argues that the equi-
table purposes underlying the FVECF should factor into
the equitable tolling analysis.




at 5 (Fed. Cir. Apr. 22, 2016); Bailey v. Principi, 314 F.3d
1293, 1298 (Fed. Cir. 2003). There is no material dispute
of fact in this case, and the outcome of the case turns on
the legal question whether Mr. Palomer’s foreign resi-
dence, his age and physical condition, or the policies
underlying the FVECF require that the 120-day appeal
period be equitably tolled. We therefore have jurisdiction
over the principal issues in the appeal. To the extent that
some issues raised by Mr. Palomer involve factual ques-
tions, we lack jurisdiction to resolve those issues, as noted
below.
6                                    PALOMER   v. MCDONALD



                            A
    Mr. Palomer contends that the time it took for the
Board’s opinion to reach his residence in the Philippines
represents an extraordinary circumstance that warrants
equitable tolling. According to Mr. Palomer, he “does not
enjoy the reliability of postal communications that domes-
tic U.S. veterans do” and “is subject to a considerably
longer wait in order to send and receive communications
through the mail.” Mr. Palomer argues that in address-
ing this issue the Veterans Court in effect imposed upon
him a shorter filing period than the statutorily mandated
120 days.
    Although there is no direct evidence of how long it
took the Board’s opinion to reach him, Mr. Palomer con-
tends it took 14 days for the opinion to reach him, which
we accept for purposes of this proceeding. He asserts that
the 120-day period for filing an appeal or a request for
reconsideration should therefore be tolled by 14 days.
Tolling the appeal period by that amount would mean
that his request for reconsideration would be considered
to have been received on the 119th day, not on the 133rd
day. For the reasons give below, however, tolling is not
applicable here.
    Mr. Palomer also argues that the Veterans Court
erred in determining that the mailing time delay could
have been overcome with diligence. According to Mr.
Palomer, “[i]t should have been irrelevant to the Veterans
Court’s evaluation of diligence that [he] could have filed
his motion within a shortened appeal period of 106 days.” 3
Mr. Palomer asserts that “any diligence on [his] part




    3   The 106-day number represents the 120-day limit
of 38 U.S.C. § 7266(a) minus the 14 days of mailing time
for which Mr. Palomer argues the statute should be tolled.
PALOMER   v. MCDONALD                                       7



could not have overcome the delay necessitated by his
living conditions.”
    Mr. Palomer argues that the statutory 120-day limita-
tion is premised on mail timelines within the United
States, and that the longer period of time that it takes for
mail to reach a claimant outside the United States consti-
tutes an extraordinary circumstance.
     The text and background of section 7266 clearly show
that Congress took into account the time it takes for mail
to be delivered and made specific provisions for it. In
1994, Congress amended section 7266(a) to provide that a
veteran’s notice of appeal is considered timely filed if it is
postmarked within 120 days after the date of the decision
being appealed. Congress recognized that the 120-day
period “provides those who live closer to Washington,
D.C., where the Court is located, more actual time to
perfect their appeals than those living greater distances
from the Court.” S. Rep. No. 103-232, at 5 (1994). Con-
gress was therefore aware that “a claimant in a state
distant from Washington, D.C. . . . would receive notice of
a [Board] decision after a claimant in a state near Wash-
ington, D.C.” Id. at 6. Despite that awareness, and
despite changing the statute in other respects, Congress
left in place the provision requiring that a notice of appeal
be filed within 120 days from the date the decision is
mailed.
    It is clear that Congress understood that no one would
have the full 120 days to appeal, and that veterans closer
to Washington, D.C., would have more time to perfect
their appeals than those living farther away, for whom
mail delivery take longer. We therefore reject Mr. Palo-
mer’s argument that the Veterans Court erred because it
required “compliance with a shorter filing period than the
statutorily-mandated 120 days.”
    Mr. Palomer argues that Congress did not contem-
plate that the filing deadline in section 7266(a) would
8                                    PALOMER   v. MCDONALD



apply to international claimants, and that delays in the
international mail system cause international claimants
to have less time to file their notices of appeal than Con-
gress intended to allow. Mr. Palomer points out that the
statute references the U.S. Postal Service (and not foreign
postal services) and that references to “states” in the
legislative history of the 1994 amendment to section 7266
suggest that Congress did not have international loca-
tions in mind.
    The legislative history, however, is to the contrary.
The Senate Report on the 1994 amendment to section
7266(a) contains an extensive discussion of what consti-
tutes “delivery,” including a statement that delivery
would be established by “postmarks that are not United
States Postal Service postmarks.” S. Rep. No. 103-232, at
7. That reference makes clear that Congress was cogni-
zant of the fact that in some instances the statutory
deadlines would be applied to veterans living abroad.
    Mr. Palomer’s argument, if accepted, would have the
effect of redrafting section 7266(a) for those claimants
residing outside of areas served by the U.S. Postal Ser-
vice. For those claimants, the appeal period would not
begin to run until the time the Board’s opinion was re-
ceived. For claimants residing within the area served by
the Postal Service, the clock would start at the time the
opinion was mailed. There is no basis in the statutory
language or legislative background to infer that Congress
intended to draw such a distinction.
    That is not to say that a mailing delay could never be
an exceptional circumstance justifying equitable tolling.
If a mailing delay resulted in a claimant receiving notice
of the Board’s opinion after the appeal period had already
run, or nearly expired, equitable tolling might well be
available. But the rule Mr. Palomer seeks—to create a
“receipt” requirement for claimants residing outside the
United States—would effectively rewrite the statute and
PALOMER   v. MCDONALD                                      9



would not be limited in its effect to truly extraordinary
circumstances.
    The 120-day period for filing a notice of appeal is in-
tentionally generous, particularly in light of the fact that
a notice of appeal is a very simple document. Congress
clearly contemplated that the claimant would have less
than the full 120 days to file his notice of appeal because
of the time lost to delivery. Congress also understood that
the period to appeal would vary somewhat between veter-
ans, depending on the mail delivery time in each case. In
light of those facts, the loss of a few days from the 120-day
period due to the vagaries of mailing times is not an
“extraordinary circumstance” that would warrant equita-
ble tolling for every claimant residing outside the United
States.
     The Veterans Court looked to the specific facts of Mr.
Palomer’s case and determined that he had failed to show
“that the time for mail to be delivered between the U.S.
and the Philippines rises to the level of an extraordinary
circumstance warranting equitable tolling.” The 14-day
mailing period left Mr. Palomer with 106 days within
which to file his notice of appeal (or request for reconsid-
eration). The Veterans Court noted that after the denial
of his request for reconsideration, Mr. Palomar was able
to file his notice of appeal within 102 days and that he
was able to respond to the Secretary’s motion to dismiss
his appeal within 38 days from the date the motion was
filed. Moreover, the court noted, Mr. Palomer failed to
assert or show that he had an inadequate amount of time
to consider his options and timely mail his request for
reconsideration. The Veterans Court therefore concluded
that this is not a case in which mailing delays disabled
the claimant from meeting the applicable statutory dead-
10                                    PALOMER   v. MCDONALD



lines. 4 To the extent that Mr. Palomer challenges the
Veterans Court’s analysis of the specific facts of this case,
and in particular whether Mr. Palomer failed to show that
he had insufficient time to file his request for reconsidera-
tion, he raises a factual matter that falls outside this
court’s jurisdiction. See 38 U.S.C. § 7292(d)(2).
                             B
    Mr. Palomer next argues that his age and physical
condition constitute an exceptional circumstance warrant-
ing equitable tolling. He asserts that his circumstances
are like those of the claimant in Barrett v. Principi, 363
F.3d 1316, 1319 (Fed. Cir. 2004), where the court found
that equitable tolling was appropriate for a claimant who
suffered from mental illness. He claims that he is “inca-
pable of handling his own affairs” and needed assistance
in preparing his request for reconsideration and appeal.
     This court has held that “equitable tolling based on
physical illness is appropriate.” Arbas, 403 F.3d at 1381.
The question in such instances is whether “the particular
infirmity of the veteran prevented him from engaging in
‘rational thought or deliberate decision making’ or ren-
dered him ‘incapable of handling [his] own affairs or


     4   Mr. Palomer compares his circumstances to those
of the veteran in Checo. We do not find that contention
persuasive. In Checo, the veteran became homeless due
to circumstances beyond her control and did not receive a
copy of the Board’s decision until 91 days after it had
issued. In this case, Mr. Palomer does not allege that he
suffered any external obstacle other than the 14-day
period required for the delivery of the mail in the Philip-
pines, and he admits he received the Board’s decision
when he still had 88 percent of the statutory time period
for filing a notice of appeal (or a request for reconsidera-
tion to be followed by a notice of appeal).
PALOMER   v. MCDONALD                                    11



unable to function [in] society.’” Id.; see also Barrett v.
Principi, 363 F.3d at 1321 (applying the same standard to
mental illness). As an exemplary list of such physical
illnesses that might “impair cognitive function or the
ability to communicate,” Arbas lists a sufficiently incapac-
itating stroke; “severe head trauma”; “a heart attack”; and
other cases in which “one may retain full consciousness
but still be unable to speak or communicate effectively, as
may be the case for those in extreme pain or who have
been immobilized.” Id.
    The Veterans Court found that “other than vague as-
sertions of physical infirmity, Mr. Palomer offers no
evidence demonstrating that his physical condition ren-
dered him incapable of handling his affairs.” The court
considered his statements concerning his health and his
awareness of the requirements for appeal of the Board’s
decision. 5 With respect to this issue, the government
correctly notes that Mr. Palomer is simply asking this
court to reach a different conclusion as to a factual matter
addressed by the Veterans Court, a task that is outside
the scope of our limited jurisdiction in reviewing decisions
of the Veterans Court. See 38 U.S.C. § 7292(d)(2).
                             C
    Finally, Mr. Palomer argues that equitable tolling
should be applied because his claim arises under the
Filipino Veterans Equity Compensation Act. According to
Mr. Palomer, that Act “is equitable by its very nature,”
and is “a result of extraordinary circumstances in our
nation’s veterans benefits history,” which “should factor in
to the extraordinary circumstances analysis.”



   5    As in Toomer v. McDonald, 783 F.3d 1229, 1239
(Fed. Cir. 2015), the Veterans Court’s factual findings
concerning the veteran’s understanding of Form 4597 are
outside this Court’s limited jurisdiction.
12                                  PALOMER   v. MCDONALD



    Congress directed the DVA to administer the FVECF
in accordance with title 38 of the United States Code
unless otherwise provided.       American Recovery and
Reinvestment Act of 2009, Pub. L. 111-5, § 102(j), 123
Stat. 115, 200 (2009). Congress was plainly aware that
many FVECF claimants would share Mr. Palomer’s
circumstances. The FVECF is specifically directed at
those who aided U.S. forces in the Philippines during
World War II and makes specific provision for native
residents of the Philippines. Congress would unquestion-
ably understand that by 2009, veterans who had served in
World War II would be advanced in age. Despite that
awareness, however, Congress did not alter the provisions
of 38 U.S.C. § 7266(a) for FVECF applicants. We there-
fore decline to hold that the equitable purpose underlying
the FVECF constitutes an extraordinary circumstance
justifying equitable tolling of the time limitations in
section 7266(a).
     No costs.
                      AFFIRMED
