Case: 23-2336 Document: 15 Page: 1 Filed: 03/11/2024
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MATTHEW C. FORD, JR.,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2023-2336
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 22-7135, Judge Joseph L. Falvey,
`Jr.
`
`______________________
`
`Decided: March 11, 2024
`______________________
`
`MATTHEW C. FORD, JR., Nazareth, PA, pro se.
`
`
` MARGARET JANTZEN, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent-appellee. Also represented by
`BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
`PREHEIM.
` ______________________
`
`
`

`

`Case: 23-2336 Document: 15 Page: 2 Filed: 03/11/2024
`
`2
`
`FORD v. MCDONOUGH
`
`Before DYK, SCHALL, and HUGHES, Circuit Judges.
`PER CURIAM.
` Matthew C. Ford, Jr., a veteran of the United States
`Army, proceeding pro se, appeals from an order of the
`United States Court of Appeals for Veterans Claims (“Vet-
`erans Court”) dismissing as untimely his appeal of a Board
`of Veterans’ Appeals (“Board”) decision. Mr. Ford primar-
`ily argues that the Veterans Court erred in declining to toll
`the 120-day time limit to file a Notice of Appeal (“NOA”),
`which he contends should have been done because a De-
`partment of Veterans Affairs (“VA”) form suggested to him
`that he had one year to request a review. As to this claim,
`we affirm the Veterans Court. Mr. Ford’s informal brief
`also argues an alternative basis for equitable tolling—that
`he has health problems, including fatigue related to a thy-
`roid disorder, that should have excused his late filing. As
`to this claim, we dismiss for lack of jurisdiction. We there-
`fore affirm in part and dismiss in part.
`BACKGROUND
` Mr. Ford served on active duty in the United States
`Army from August 1969 to July 1971. He sought benefits
`for service-connected hypothyroidism, and an initial rating
`decision assigned him a 10 percent disability rating effec-
`tive April 25, 2017. Mr. Ford appealed to the Board, seek-
`ing an increased disability rating. In a decision dated May
`5, 2022, the Board modified the initial rating decision. The
`Board found that the initial rating was warranted, found
`that a rating of 10 percent was also warranted for the pe-
`riod from March 13 to April 25, 2017, and denied the re-
`quested increase.
`Under 38 U.S.C. § 7266(a), an individual seeking re-
`view of an adverse Board decision in the Veterans Court
`must file an NOA within 120 days. This period is subject
`to equitable tolling. James v. Wilkie, 917 F.3d 1368, 1372
`(Fed. Cir. 2019). The deadline for Mr. Ford’s NOA was
`
`

`

`Case: 23-2336 Document: 15 Page: 3 Filed: 03/11/2024
`
`FORD v. MCDONOUGH
`
`3
`
`September 2, 2022, but Mr. Ford did not file his NOA until
`December 6, 2022. The Secretary of Veterans Affairs
`moved to dismiss Mr. Ford’s appeal as untimely. The Vet-
`erans Court ordered Mr. Ford to explain why his appeal
`should not be dismissed. Mr. Ford responded, arguing that
`a VA document showed that he had one year to request a
`review of the decision and that he suffered from fatigue be-
`cause of his thyroid disorder.
`The Veterans Court found that Mr. Ford’s NOA was
`untimely, and that equitable tolling was not warranted. As
`to Mr. Ford’s argument that a VA document showed that
`he had one year to file, the Veterans Court found that the
`deadline on the document (VA Form 20-0998) “applies only
`to review of a decision by VA and not review by [the Veter-
`ans] Court,” and that Mr. Ford’s apparent misunderstand-
`ing was not an extraordinary circumstance that prevented
`him from timely filing his NOA. S.A. 3. As to Mr. Ford’s
`argument concerning his fatigue, the Veterans Court found
`that “he ha[d] not shown that his condition rendered him
`incapable of handling his own affairs such that it precluded
`him from filing his NOA for the period that he is seeking to
`toll.” S.A. 3. The Veterans Court dismissed the appeal.
`This appeal followed.
`
`DISCUSSION
`I
`“Our jurisdiction to review a judgment of the [Veterans
`Court], set forth in 38 U.S.C. § 7292, is highly circum-
`scribed.” Leonard v. Gober, 223 F.3d 1374, 1375 (Fed. Cir.
`2000). Under 38 U.S.C. § 7292(d)(1), on review of a Veter-
`ans Court decision we are to “decide all relevant questions
`of law.” However, “[e]xcept to the extent that an appeal
`under this chapter presents a constitutional issue, [we]
`may not review (A) a challenge to a factual determination,
`or (B) a challenge to a law or regulation as applied to the
`facts of a particular case.” Id. § 7292(d)(2).
`
`

`

`Case: 23-2336 Document: 15 Page: 4 Filed: 03/11/2024
`
`4
`
`FORD v. MCDONOUGH
`
`The Secretary contends, citing Leonard, that we lack
`jurisdiction to review the Veterans Court’s decision and
`should dismiss Mr. Ford’s appeal. We disagree. We have
`jurisdiction over Mr. Ford’s first theory. The question of
`whether the existence of the VA form requires equitable
`tolling appears to be a legal issue over which we have ju-
`risdiction. See Toomer v. McDonald, 783 F.3d 1229, 1239
`(Fed. Cir. 2015). Mr. Ford’s informal brief does not dispute
`any of the material facts relied on by the Veterans Court
`concerning his reliance on the VA form, nor does it chal-
`lenge a law as applied to the facts of his case. Accordingly,
`we have jurisdiction under 38 U.S.C. § 7292 to determine
`whether the Veterans Court applied the correct legal
`standard for equitable tolling as to Mr. Ford’s theory that
`he was misled by the VA form.
`Mr. Ford’s informal brief also notes that he and his wife
`attended frequent medical visits, which “occup[ied] a lot of
`[his] time and concentration.” Informal Br. of Appellant at
`8 (emphasis omitted). To the extent that Mr. Ford argues
`that his medical appointments prevented him from timely
`filing his NOA, Mr. Ford did not present this argument to
`the Veterans Court, and we decline to consider it for the
`first time on appeal. See Morgan v. Principi, 327 F.3d
`1357, 1364 (Fed. Cir. 2003). To the extent that Mr. Ford
`asks us to review the Veterans Court’s holding that his thy-
`roid condition was not an extraordinary circumstance be-
`cause he did not show that it rendered him incapable of
`handling his own affairs, we lack jurisdiction because the
`Veterans Court simply applied established law to the facts
`of this case. 38 U.S.C. § 7292(d)(2).
`II
`For equitable tolling to be warranted, a claimant must
`
`show an extraordinary circumstance, due diligence, and
`causation. Toomer, 783 F.3d at 1238. Equitable tolling is
`not limited to a closed set of fact patterns, and the extraor-
`dinary circumstance element must be considered “on a
`
`

`

`Case: 23-2336 Document: 15 Page: 5 Filed: 03/11/2024
`
`FORD v. MCDONOUGH
`
`5
`
`‘case-by-case basis.’” James, 917 F.3d at 1373 (quoting Hol-
`land v. Florida, 560 U.S. 631, 650 (2010)).
`
`In his informal brief, Mr. Ford argues that he is enti-
`tled to equitable tolling because VA Form 20-0998 is “very
`deceitful and offensive” and “states quite glaringly ‘you
`have 1 year from the date on your decision notice.’” Infor-
`mal Br. of Appellant at 7 (emphasis omitted) (quoting VA
`Form 20-0998). But on its face the notice only applies to
`appeals within the VA. The Veterans Court is not a unit of
`the VA. The record shows that the Board decision in
`Mr. Ford’s case included a copy of VA 10183-SB that states
`that the deadline for an appeal to the Veterans Court is
`“120 days from [the] date on your VA decision.” The Vet-
`erans Court found, citing Toomer, that “[a]lthough it is un-
`fortunate that Mr. Ford misunderstood the VA form, such
`a situation is not an extraordinary circumstance.” S.A. 3.
`We see no legal error in this analysis. The Veterans Court
`engaged in a case-specific analysis based on the facts of
`Mr. Ford’s appeal, and we do not read the decision as an-
`nouncing a categorical rule that a confusing or deceitful VA
`form can never justify equitable tolling. Instead, we read
`the Veterans Court as properly holding that Mr. Ford had
`not shown an extraordinary circumstance on the undis-
`puted facts of his case.
`AFFIRMED-IN-PART AND DISMISSED-IN-PART
`COSTS
`
`No costs.
`
`