           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

                                               NO. 17-1214

                                   REGINALD C. SMITH, APPELLANT,

                                                     V.

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

                 Before DAVIS, Chief Judge, and BARTLEY and TOTH, Judges.

                                                ORDER

 I. Mr. Smith was incarcerated when he missed the deadline to appeal the Board decision.

        Veteran Reginald C. Smith was incarcerated when he missed the deadline to appeal a Board
of Veterans' Appeals (Board) decision. He argues that his incarceration warrants tolling the
deadline. On November 28, 2016, the Board mailed its decision that remanded Mr. Smith's claim
for service connection for headaches and determined that no new and material evidence had been
submitted to reopen his claim for an acquired psychiatric disorder, to include depression. On April
28, 2017, Mr. Smith filed his Notice of Appeal (NOA), more than 120 days after the Board mailed
its decision.1 The 120th day after the mailing—the last day to file a timely appeal—was March
28, 2017. 38 U.S.C. § 7266(a). Mr. Smith attached to his NOA a statement indicating that he was
incarcerated from September 21, 2015, until April 5, 2017, was homeless, and would be an
inpatient at the St. Cloud VAMC until May 25, 2017. See Attachment to Mr. Smith's Apr. 28,
2017, NOA. He further stated that after he had received the Board decision denying his claim, he
contacted Disabled American Veterans (DAV), who had represented him before the Board, to file
an appeal. Id. Mr. Smith asserted that DAV could not "correspond" with him within the appeal
deadline set by the Board because of his incarceration, but it was his understanding that they would
continue his appeal. Id.

        On May 31, 2017, the Clerk of the Court ordered Mr. Smith to show cause why his appeal
should not be dismissed as untimely and advised him that failure to respond may result in the
dismissal of his appeal without further notice. On August 2, 2017, Mr. Smith, through counsel,
filed a response very similar to his statement that was attached to his NOA. Specifically, Mr.
Smith asserted that (1) he was represented by the DAV before the Board; (2) he was incarcerated
from September 21, 2015, to April 5, 2017; (3) on March 6, 2017, he contacted DAV and asked
that an appeal be filed; and (4) his appeal was not timely filed by the DAV. See Appellant's Aug.
2, 2017, Response.




        1
          The Court notes that the NOA was faxed from a VA medical center (VAMC) in St. Cloud, Minnesota, and
signed by Mr. Smith.
        On October 10, 2017, this matter was referred to a panel of the Court to address whether
incarceration alone constitutes an extraordinary circumstance that warrants tolling of this Court's
appeal period. On October 31, 2017, the panel issued a second show cause order, stating that
because Mr. Smith alleged that DAV could not correspond with him as a result of his incarceration,
"additional information and evidence is needed regarding the circumstances of [his] incarceration,
any alleged inability to communicate during the appeal period, or any other circumstances
warranting tolling." Court's Oct. 31, 2017, Order. In his February 28, 2018, response, Mr. Smith
provided no additional details regarding his incarceration. He stated that both he and his attorney
repeatedly contacted DAV, "but they are refusing to provide any information regarding this matter,
or why this appeal was filed late." Appellant's February 28, 2018, Response at 1-2. Specifically,
Mr. Smith asserted that DAV "will not release their call logs, records, or provide any statement to
support [his contention] that he asked them to file the appeal on his behalf (due to his
incarceration)," and they have not responded to his attorney's similar request. Id.

        On March 20, 2018, the Secretary replied to Mr. Smith's response, asserting that Mr. Smith
"provided no additional details whatsoever concerning his incarceration and why it purportedly
left him unable to take action toward initiating an appeal. Rather, his efforts were concentrated on
the latter part of his allegations, namely that the DAV failed to take any action on his behalf."
Secretary's Response at 3-4. The Secretary noted that Mr. Smith neither specifically identified
whom he asked to file his appeal nor stated whether there was an engagement agreement with
DAV that would have permitted DAV to file an NOA. Id. at 4. In addressing whether
incarceration warrants equitable tolling, the Secretary asserted that incarceration may not be
"characterized as a circumstance that is beyond one's control" because incarceration is "a result of
one's own actions." Id. at 5. Additionally, the Secretary noted that Mr. Smith "retained the ability
to communicate with the outside world," "maintain[ed] a relatively active role in the ongoing
management of his benefits" and "sent several items of correspondence" while incarcerated. Id. at
6-7; see also Secretary's Appendix at 1-10.

   II. Incarceration alone does not constitute an extraordinary circumstance warranting
                                      equitable tolling.

         Given that Mr. Smith's NOA was untimely, the Court must determine whether equitable
tolling is warranted. The 120-day appeal period is subject to equitable tolling when circumstances
preclude timely filing of an NOA. See Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam
order). To benefit from equitable tolling, a claimant must demonstrate (1) an extraordinary
circumstance that prevented timely filing; (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). "Furthermore, it is the appellant's burden to
demonstrate entitlement to equitable tolling and to produce any evidence supporting his claim for
equitable tolling." Palomer v. McDonald, 27 Vet.App. 245, 251 (2015) (per curiam order).




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         The Court holds that incarceration alone, without more, does not satisfy the requirements
for an extraordinary circumstance to warrant equitable tolling. Compare Barrett v. Principi,
363 F.3d 1316, 1321 (Fed. Cir. 2004) (holding that equitable tolling may be warranted where a
mental disability renders an appellant incapable of rational thought or deliberate decision making,
incapable of handling one's own affairs, or unable to function in society), and Checo v. McDonald,
27 Vet.App. 105, 106-07 (2014) (finding equitable tolling warranted where the appellant was
homeless and unable to receive mail), with Palomer, 27 Vet.App. at 252 (declining to apply
equitable tolling because of the inefficiencies of the Philippine mailing system), and McCreary,
20 Vet.App. at 91-92 (finding that a hurricane was an extraordinary circumstance, but declining to
apply equitable tolling where the circumstances surrounding the hurricane did not prevent timely
filing).

        Here, equitable tolling is not warranted because Mr. Smith merely asserted that DAV could
not "correspond" with him within the appeal deadline set by the Board because of his incarceration.
See Attachment to Mr. Smith's Apr. 28, 2017, NOA. Though the Court's second show cause order
explicitly asked Mr. Smith to provide additional details about the circumstances of his
incarceration, he failed to do so. Rather, Mr. Smith stated only that while he was incarcerated he
asked the DAV representative who represented him before the Board to file his appeal to this
Court, and that DAV now refuses to provide any additional information to him or his attorney.
Appellant's February 28, 2018, Response at 1-2.

        The Court acknowledges that incarceration may cause hardships for those wishing to file
an appeal. In holding that a pro se prisoner's NOA is "filed" when delivered to prison authorities
for mailing, the U.S. Supreme Court explained that the "situation of prisoners seeking to appeal
without the aid of counsel is unique." Houston v. Lack, 487 U.S. 266, 270 (1988). "Such prisoners
cannot take the steps other litigants can take to monitor the processing of their notices of appeal
and to ensure that the court clerk receives and stamps their notices of appeal before the . . .
deadline." Id. at 270-71. The Supreme Court noted that "pro se prisoners have no control over
delays between the prison authorities' receipt of the notice and its filing, and their lack of freedom
bars them from delivering the notice to the court clerk personally." Id. at 273-74.

        In contrast, here Mr. Smith neither argues nor demonstrates that his incarceration erected
barriers to filing that warrant equitable tolling. See Palomer, 27 Vet.App. at 251 ("Furthermore,
it is the appellant's burden to demonstrate entitlement to equitable tolling and to produce any
evidence supporting his claim for equitable tolling."). Though he contends that DAV could not
"correspond" with him within the appeal period set by the Board because of his incarceration, there
is evidence that Mr. Smith received correspondence from DAV while incarcerated and to monitor
his benefits repeatedly communicated with those outside his correctional facility via letter and
telephone. See Attachment to Mr. Smith's Apr. 28, 2017, NOA (stating that while incarcerated he
received correspondence from his representative before the Board); Secretary's Response at 6-7
(detailing five instances in which Mr. Smith corresponded with VA or DAV during his period of
incarceration); Secretary's Appendix at 7-8 (Oct. 2015 letter from Mr. Smith to a DAV service
officer: "Can you please send me [documents relating to] my headaches [] and depression claim,
as we talk[ed about] over [the] phone back in Sept[ember]."). Specifically, Mr. Smith sought
records from DAV in October 2015, received correspondence from his representative before the
Board in November 2016, submitted a request to release records to prospective counsel in January



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2016, submitted a hearing election form to the Board with additional argument in March 2016,
submitted a change of address form to the RO in April 2016, and submitted a statement in support
of claim asking for a copy of his claims file. 2 See Secretary's Appendix at 1-10. These
communications, which took place while he was incarcerated, demonstrate that communication
was not restricted enough during the appeal period to warrant tolling.

        The Secretary argues that incarceration does not warrant equitable tolling because
"incarceration is, by definition, a result of one's own actions," and, therefore, not a circumstance
beyond one's control. Secretary's Response at 5. The Court rejects this argument because it is,
among other things, overly broad. Just as incarceration alone does not automatically warrant
equitable tolling, incarceration that results from an individual's wrongdoing does not automatically
bar equitable tolling. Decidedly, courts in this country do not view the fact that incarceration
results from the individual's own actions as precluding equitable tolling. See, e.g., Holland v.
Florida, 560 U.S. 631, 649 (2009) (noting that incarcerated appellants may be entitled to equitable
tolling).

             III. Mr. Smith does not demonstrate that he exercised due diligence in trying to
                                      timely file his appeal.

         Additionally, to the extent that Mr. Smith asserts that he asked his DAV representative to
file his NOA with this Court, he provides no information regarding whom he specifically asked to
file his NOA or whether the DAV representative agreed to represent him before the Court, even
for the limited purpose of filing the NOA. See Attachment to Mr. Smith's Apr. 28, 2017, NOA ("I
contact[ed] my . . . DAV[] representative on March 06, 2017 and requested they appeal the
decision."); see also U.S. VET. APP. R. 46(b)(2); NOA Form (allowing an NOA to be submitted by
a representative who does not file a notice of appearance so long as the representation is limited to
filing the NOA and the representative avers that the appellant has been advised of the responsibility
to abide by the Court's Rules of Practice and Procedure). Thus, Mr. Smith fails to demonstrate
that the DAV representative who represented him before the Board agreed to file an NOA with
this Court on his behalf. See Palomer, 27 Vet.App. at 251; see also Attachment to Mr. Smith's
Apr. 28, 2017, NOA.

        Finally, the Court is not convinced that Mr. Smith exercised due diligence in ensuring that
his NOA was timely filed. Due diligence requires "reasonable diligence," not "maximum feasible
diligence." See Checo, 748 F.3d at 1380 (citing Holland, 560 U.S. at 653). But Mr. Smith has not
argued, nor does the evidence suggest, that he was reasonably diligent in trying to file his NOA.
Instead, he simply stated that he had "requested" that an appeal be filed and that he "had no reason
to believe that the DAV had not filed the appeal." Appellant's Feb. 28, 2018, Response at 2.
Notably, even if Mr. Smith could not verify that his NOA was filed, based on his numerous
communications with those outside his correctional facility, he could have asked VA, DAV, or
this Court to verify that an NOA had been timely filed. Despite two opportunities to provide
information on his incarceration and possible difficulties communicating, Mr. Smith was not
forthcoming. Thus, Mr. Smith has not shown that his behavior meets the requisite reasonable due
         2
           The Court notes that the statement in support of the claim states that Mr. Smith signed it on April 19, 2017,
which was after his release, but it is stamped as having been received by the RO on March 10, 2017, which was before
his release. See Secretary's Appendix at 9-10.



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diligence necessary for equitable tolling. See Palomer, 27 Vet.App. at 251; see also Mead v.
Shulkin, 29 Vet.App. 159, 162 (2017) (noting that equitable tolling is not extended for "garden
variety" neglect); Nelson v. Nicholson, 19 Vet.App. 548, 553 (2006).

                                 IV. Mr. Smith's appeal is dismissed.

       On consideration of the foregoing, it is

       ORDERED that this appeal is DISMISSED.

DATED: August 24, 2018                                           PER CURIAM.




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