`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MARY STERLING,
`Claimant-Appellant
`
`v.
`
`DAVID J. SHULKIN, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2017-1049
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 16-277, Senior Judge Lawrence B.
`Hagel.
`
`______________________
`
`Decided: February 15, 2018
`______________________
`
`JENNINGS JONES, III, Lake Charles, LA, argued for
`
`claimant-appellant.
`
`RETA EMMA BEZAK, Commercial Litigation Branch,
`
`Civil Division, United States Department of Justice,
`Washington, DC, argued for respondent-appellee. Also
`represented by ERIC JOHN SINGLEY, CHAD A. READLER,
`ROBERT E. KIRSCHMAN, JR., L. MISHA PREHEIM; Y. KEN
`LEE, AMANDA BLACKMON, Office of General Counsel,
`
`
`
`
`
` 2
`
` STERLING v. SHULKIN
`
`United States Department of Veterans Affairs, Washing-
`ton, DC.
`
`______________________
`
`Before MOORE, MAYER, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`Mary Sterling appeals from a decision by the U.S.
`Court of Appeals for Veterans Claims dismissing her
`appeal as untimely. Because the Veterans Court failed to
`consider whether equitable tolling is warranted, we
`vacate and remand.
`
`I
`The facts here are undisputed. On September 22,
`2015, the Board of Veterans’ Appeals issued a decision
`denying Mrs. Sterling’s claim for service connection for
`the cause of her veteran-husband’s death. The decision
`was mailed to an address on Dixy Drive in Lake Charles,
`Louisiana. The mailing was returned to the Board as
`undeliverable. In October, Mrs. Sterling contacted the
`Board to inquire about the status of her case. At that
`time, she confirmed the Dixy Drive address. On Novem-
`ber 17, 2015, Mrs. Sterling’s address on file was changed
`to one on 4th Street in Lake Charles, Louisiana. The next
`day, the Board decision was remailed to Mrs. Sterling at
`the 4th Street address. Mrs. Sterling received the Board
`decision on November 20, 2015. Acting pro se, she filed a
`Notice of Appeal. The Veterans Court received her notice
`on January 21, 2016, 121 days after the Board decision
`and one day after the filing deadline. The Veterans Court
`determined that Mrs. Sterling’s Notice of Appeal was
`untimely and dismissed her appeal. Mrs. Sterling ap-
`peals. We have jurisdiction pursuant to 38 U.S.C.
`§ 7292(a), (c), (d)(1).
`
`
`
`STERLING v. SHULKIN
`
`3
`
`II
`We have exclusive jurisdiction to decide appeals that
`challenge the Veterans Court’s legal determinations,
`including the interpretation or validity of any statute or
`regulation. Id. We review the Veterans Court’s legal
`determinations without deference. Checo v. Shinseki, 748
`F.3d 1373, 1376 (Fed. Cir. 2014). Unless an appeal pre-
`sents a constitutional issue, we may not review factual
`challenges. 38 U.S.C. § 7292(d)(2).
`In dismissing Mrs. Sterling’s appeal, the Veterans
`Court applied the rule outlined in Davis v. Prinicipi:
`For purposes of determining whether an NOA is
`timely filed under section 7266(a) within the 120-
`day period from the Board's mailing of notice of its
`decision, the Court applies to the Board's mailing
`of a decision copy under section 7104(e) a “pre-
`sumption of regularity” that the Secretary and the
`Board discharged their official duties by mailing
`the decision copy to the claimant and to the
`claimant's representative, if any, at each of their
`last known mailing addresses on the date on
`which the decision is issued. . . . [T]he presump-
`tion of regularity of mailing has been rebutted
`where a copy of a [Board] decision that is mailed
`to a claimant at his or her last known address is
`returned as undeliverable by the USPS and the
`claimant's claims file discloses other possible and
`plausible addresses that were available to the
`Secretary at the time of the [Board] decision.
`17 Vet. App. 29, 36–37 (2003) (citations omitted); J.A. 2.
`Because the Secretary lacked any other “possible and
`plausible” address to mail the Board decision in Septem-
`ber 2015, the Veterans Court found that Mrs. Sterling
`failed to rebut the presumption of regularity. J.A. 2.
`
`
`
`
`
` 4
`
` STERLING v. SHULKIN
`
`Mrs. Sterling argues that the Veterans Court erred in
`applying Davis, and requests we hold that “in order to
`establish a rebuttal of the presumption of regularity, the
`veteran only needs to establish that the mailing was not
`received by the veteran.” Appellant’s Opening Br. 3. We
`decline to do so.
`The time bar statute is 38 U.S.C. § 7266, which states
`that a notice of appeal must be filed “within 120 days
`after the date on which notice of the decision is mailed
`pursuant to section 7104(e) of this title.”
` Section
`7104(e)(1) requires the Board to “promptly mail a copy of
`its written decision to the claimant at the last known
`address of the claimant.” Based on the statutory lan-
`guage, the Veterans Court correctly applied the presump-
`tion of regularity. It is not enough for Mrs. Sterling to
`show that she did not receive the mailing if the Board did
`not have any alternative address to send the decision.
`The Veterans Court did err, however, in failing to
`consider whether Mrs. Sterling’s appeal warranted equi-
`table tolling. See J.A. 3. A litigant seeking equitable
`tolling bears the burden of establishing that (1) she has
`been pursuing her rights diligently, and (2) that some
`extraordinary circumstance prevented timely
`filing.
`Sneed v. Shinseki, 737 F.3d 719, 725 (Fed. Cir. 2013). The
`120-day deadline for filing appeals to the Veterans Court
`is subject to equitable tolling. Id.
`Whether equitable tolling applies is a flexible inquiry,
`determined on a case-by-case basis. Toomer v. McDonald,
`783 F.3d 1229, 1239 (Fed. Cir. 2015). In past cases, we
`have found that equitable tolling could apply due to:
`incapacitation caused by mental or physical illness, see
`Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004); Arbas
`v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005); the veteran’s
`attorney abandoning the appeal, see Sneed, 737 F.3d at
`725–29; the veteran misfiling a notice of appeal, Jaquay v.
`Principi, 304 F.3d 1276 (Fed. Cir. 2002); and the veteran
`
`
`
`STERLING v. SHULKIN
`
`5
`
`using an incorrect form to file a notice of appeal, Bailey v.
`Principi, 351 F.3d 1382 (Fed. Cir. 2003).
`Here, we note that Mrs. Sterling appears to have ac-
`tively contacted the Board regarding the status of her
`case and diligently updated her address. The Veterans
`Court also noted that Mrs. Sterling asserted that she was
`homeless for several years. J.A. 2. Moreover, the Veter-
`ans Court received her Notice of Appeal a mere one day
`after the 120 day deadline. Although we make no deter-
`mination as to whether the facts of this case warrant
`equitable tolling, we find that the Veterans Court erred
`by not considering whether equitable tolling should apply.
`Accordingly, we remand for the Veterans Court to
`consider whether the facts of this case warrant equitable
`tolling.
`
`VACATED AND REMANDED
`
`