       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                CURTIS E. WALDEN,
                 Claimant-Appellant

                           v.

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

                      2015-7073
                ______________________

    Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1480, Judge William Green-
berg.
                ______________________

              Decided: February 10, 2016
               ______________________

   CURTIS E. WALDEN, Highland Home, AL, pro se.

    JOSHUA A. MANDLEBAUM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., ELIZABETH M. HOSFORD; Y. KEN LEE,
2                                      WALDEN   v. MCDONALD




CHRISTINA LYNN GREGG, Office of General Counsel, Unit-
ed States Department of Veterans Affairs, Washington,
DC.
               ______________________

        Before PROST, Chief Judge, DYK, and WALLACH, Cir-
                         cuit Judges.
PER CURIAM.
     Curtis E. Walden appeals from a decision of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans’ Court”) dismissing his appeal as untimely.       We
affirm.
                        BACKGROUND
    Mr. Walden injured the second toe of his left foot
while he was on active duty service with the Navy from
1955 to 1957. He initially claimed compensation for a
service disability related to that injury, which was denied
in 1963.
    In 1998, Mr. Walden requested that the Board of Vet-
erans’ Appeals (“the Board”) reopen his claim for disabil-
ity compensation, alleging service-connected Freidberg’s
disease in the second toe of his left foot. After a series of
decisions, appeals, and remands, the Board finally deter-
mined that Mr. Walden was entitled to a 20% disability
rating between April 23, 1999, and April 23, 2003, and a
30% rating thereafter. 1 The Board’s final decision was
mailed to Mr. Walden on September 12, 2011.
    On February 24, 2014, far more than 120 days after
the Board’s decision and after the running of the time for


    1   The Board also determined that Mr. Walden was
entitled to 100% disability for two periods of time when he
was recovering from surgery.
WALDEN   v. MCDONALD                                       3




appeal, Mr. Walden requested reconsideration of the 2011
Board decision, seeking a higher disability rating. This
was denied on April 24, 2014. On May 15, 2014, twenty-
one days after the denial of reconsideration, Mr. Walden
then appealed the denial to the Veterans’ Court. He
argued that his appeal was timely because he filed his
appeal within 120 days of the denial of the petition for
reconsideration.
     The Veterans’ Court dismissed Mr. Walden’s appeal
as untimely, explaining that “[a]lthough [Mr. Walden] is
correct that he filed his appeal to the Court within 120
days of the Board[’s] denial of his motion for reconsidera-
tion, [Mr. Walden’s] failure to file his motion for reconsid-
eration within 120 days of [the date the original decision
was mailed] results in an untimely filing of his appeal to
the Court.” App. 6. 2 As the Veterans’ Court explained,
“[i]f an appellant chooses to file a motion for reconsidera-
tion, he may still appeal to the Court, but only if he files
his motion for reconsideration with the Board within 120
days of the date on which the Board decision was mailed,
and then submits his appeal to the Court within 120 days
from when the Board mails the notice of the denial of
reconsideration to the appellant.” Id. at 7. Because Mr.
Walden had not provided an excuse for missing the 120-
day window for filing the petition for reconsideration, see
Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir.
2004), the Veterans’ Court dismissed the appeal.
    Mr. Walden now appeals to our court. We have lim-
ited jurisdiction to review decisions of the Veterans’
Court. Absent a constitutional issue, we may not review a
challenge to a factual determination or a challenge to a
law or regulation as applied to the facts of a particular


    2  All notations to the appendix refer to the appendix
attached to the government’s informal brief.
4                                      WALDEN   v. MCDONALD




case. 38 U.S.C. § 7292(d)(2); Wanless v. Shinseki, 618
F.3d 1333, 1336 (Fed. Cir. 2010).
                       DISCUSSION
     Mr. Walden challenges the Veterans’ Court’s dismis-
sal of his appeal as untimely. Pursuant to 38 U.S.C.
§ 7266(a), “[i]n order to obtain review by the Court of
Appeals for Veterans Claims of a final decision of the
Board of Veterans' Appeals, a person adversely affected
by such 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 decision on a motion for recon-
sideration is not a “final decision” under the statute; thus
normally an appeal must be filed within 120 days of the
final decision of the Board. See 38 C.F.R. § 20.1001
(decision rejecting motion for reconsideration is a “final
disposition of the motion” not a final decision of the
Board); Mayer v. Brown, 37 F.3d 618, 620 (Fed. Cir. 1994)
(overruled in part on other grounds). However, if a veter-
an seeks reconsideration of a Board decision within that
120-day window, the veteran may appeal within 120 days
of the decision on the motion for reconsideration. See,
e.g., Rosler v. Derwinski, 1 Vet. App. 241, 245 (1991). The
120-day deadline for filing a notice of appeal is not juris-
dictional, and the period may be equitably tolled. Hen-
derson v. Shinseki, 562 U.S. 428, 441–42 (2011). Thus, a
veteran may still appeal to the Veterans’ Court provided
he gives an acceptable reason for missing the deadline.
Mr. Walden has not given any reason as to why the
deadline should be equitably tolled here.
    Mr. Walden’s brief primarily addresses the merits of
the underlying claim and does not address the timeliness
issue. Mr. Walden’s only argument regarding timeliness
seems to be that he filed his notice of appeal within 120
days of the denial of his motion for reconsideration. This
does not mean that the appeal was timely filed. Mayer,
WALDEN   v. MCDONALD                                 5




37 F.3d at 620. Mr. Walden missed the deadline for
seeking reconsideration by more than two years. His
appeal to the Veterans’ Court is therefore time-barred.
                       AFFIRMED
                         COSTS
   No costs.
