H ENRY R. T AVARES v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

N O . 02-799

H ENRY R. T AVARES, A PPELLANT ,

V.

A NTHONY J. P RINCIPI,

S ECRETARY OF V ETERANS A FFAIRS, A PPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided June 24, 2004 )

Mary Anne Royle, of Vancouver, Washington, was on the pleading for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Thomas

A. McLaughlin, Special Assistant to the Assistant General Counsel; Cristine D. Senseman, Appellate

Attorney; and Gabrielle L. Clemons (non-attorney practitioner), all of Washington, D.C., were on

the pleadings for the appellee.

Before KRAMER, Chief Judge, and KASOLD and HAGEL, Judges.

KRAMER, Chief Judge, filed the opinion of the Court. KASOLD, Judge, filed a dissenting

opinion.

KRAMER, Chief Judge: Before the Court is the issue of whether the appellant filed a timely

Notice of Appeal (NOA) from a January 18, 2002, Board of Veterans' Appeals (Board or BVA)

decision. For the reasons that follow, the Court will dismiss for lack of jurisdiction this appeal.

I. Procedural History and the Parties' Pleadings

On June 5, 2002, the appellant filed pro se an NOA as to the January 18, 2002, BVA decision

in which the Board, inter alia, denied entitlement to service connection for residuals of exposure to

hallucinogenic substances, including paranoia, depression, back problems, total intolerance to stress

with depression and mania, hyperexcitability, catatonia, violent tendencies, brain wave changes, and

lack of equilibrium. The Court notes that it received the NOA 138 days after the date that the Board

mailed notice of its decision. The Clerk of the Court (Clerk), on June 12, 2002, ordered the appellant

to explain why his appeal should not be dismissed for lack of jurisdiction. The appellant filed a

response in which he asserts that he believed that Mr. Alfonzo Padilla of the San Diego, California,

VA Regional Office (RO) had "attended to" the appellant's appeal "shortly after [notice of] the BVA

decision" was received and that, at that same time, the appellant had "mailed an appeal letter into

[the Court] . . . as [he has] a tendency to be redundant." Appellant's June 2002 Response (Resp.)

at 1. In this response, the appellant further asserts that (1) since January 2002, he had been in contact

with Mr. Padilla on numerous occasions regarding this appeal; (2) after he received a copy of the

BVA decision, he visited the San Diego RO and showed the decision to Mr. Padilla, who "vowed

to work on [the appellant's] appeal from a different angle"; and (3) Mr. Padilla expressed that he

would "get [the appellant's appeal] to [the Court] in a timely fashion." Id. at 1-2. Further, the

appellant asserts that in April 2002 he telephoned Mr. Padilla in order to check on the status of the

appeal; in May 2002, he again telephoned Mr. Padilla in order to check on the status of his appeal;

and during the May 2002 telephone conversation, Mr. Padilla informed him that "it would take

between [eight] to [nine] months before [the appellant] heard back [from the Court]." Id.

Additionally, the appellant asserts that, on June 5, 2002, he met with Mr. Padilla, who

explained to the appellant that he would need to sign some papers with regard to the processing of

his appeal, and that Mr. Padilla related that he never had processed an appeal to the Court in the past.

Id. at 3. On that same date, the appellant asserts, Mr. Padilla requested that the appellant complete

a Declaration of Financial Hardship form and an NOA and Mr. Padilla stated that he would send

with the NOA a letter on the appellant's behalf. Id. Finally, the appellant relates that he received his

docket number on June 8, 2002; that Mr. Padilla "had assured [the appellant] that [his] case had been

docketed all along[;] and [that Mr. Padilla had assured him] that [he] had nothing left to do but wait."

Id. at 2. The Clerk, noting that the appellant's NOA had been received via facsimile from the San

Diego RO, ordered a Secretarial response and stayed proceedings.

In July 2002, the appellant filed an addendum to his June 2002 response. In this addendum,

the appellant states that "it is [his] position that the deadline for filing [his NOA] was tolled when

[he] was repeatedly informed (including in writing . . . ) by a highly[]placed VA employee that [VA]

was filing a[n NOA] with the [Court] on [his] behalf." July 8, 2002, Addendum at 1. He argues that

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he relied on VA to assist him in the filing of his appeal and that the Secretary should not benefit from

his unclean hands. Id. Attached to this addendum is a copy of an electronic communication (e-mail)

exchange, dated June 5 and 6, 2002, between the appellant and Mr. Padilla. The appellant's June 5,

2002, e-mail to Mr. Padilla reflects that the appellant was confirming with Mr. Padilla that "[t]hose

two letters" were mailed via certified mail, return receipt requested, and the e-mail contains two U.S.

Postal Service (USPS) envelope tracking numbers. July 8, 2002, Addendum, Exhibit (Ex.) 1. The

Court presumes that in that e-mail the appellant was referring to the above-mentioned June 2002

NOA and Declaration of Financial Hardship form. (The Court notes that one of the USPS tracking

numbers reflected in the appellant's June 2002 e-mail corresponds to a USPS tracking number

imprinted on an envelope containing a duplicate copy of the appellant's June 5, 2002, NOA; that

copy was received by the Court after it received the June 5, 2002, NOA that had been transmitted

via facsimile.) In his June 6, 2002, e-mail response, Mr. Padilla stated:

The letter just has to be post[]marked before the 16th and that has already been done

(your receipt is the post[]mark). Also, I have a report from the [facsimile] machine

that shows that it was received by the [C]lerk at [the Court.] Whenever you're in

town[,] I'll give you a copy[.]

Id.

On September 11, 2002, the Court received from the appellant further correspondence in

which he, inter alia, reiterates his previous arguments; he attached to that correspondence (1) a copy

of the June 5 and 6, 2002, e-mail exchange with Mr. Padilla, and (2) copies of telephone bills, dated

from February to June 2002, reflecting numerous telephone calls to Mr. Padilla's office telephone.

September 11, 2002, Supplemental Correspondence (Corr.) at 1-3, Ex. 2, 4. Included in the

correspondence is a statement of Mrs. Brenda Tavares, wife of the appellant, in which statement she

essentially attests to the veracity of the appellant's asserted version of events. Id. The United States

Court of Appeals for the Federal Circuit (Federal Circuit), on September 16, 2002, issued its decision

in Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc).

On September 17, 2002, the Secretary filed his response with the Court. He argues that the

appellant's NOA is untimely; that there is no evidence that the appellant filed an NOA prior to the

expiration of the judicial-appeal period; and that equitable tolling is not warranted because Mr.

Padilla's actions and statements did not induce the appellant into allowing the filing deadline to pass.

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Secretary's Resp. at 2-4. In support of his arguments, the Secretary attached to his response a

Declaration from Mr. Padilla. In his Declaration, Mr. Padilla stated that he is a Management Analyst

and Community Affairs Officer at the San Diego RO. Declaration at 1. Mr. Padilla's Declaration

reflects that, in late January 2002, he had met with the appellant regarding the January 2002 BVA

decision and had explained to the appellant his appellate rights and the Court's procedures. Id. Mr.

Padilla's Declaration further reflects that, although the appellant had asked Mr. Padilla to file his

appeal "when [the appellant] completed the paperwork," Mr. Padilla had declined and had explained

that only the appellant could complete the Court's procedures. Id. at 1-2. In his Declaration, Mr.

Padilla acknowledged that, during their January 2002 meeting, he had informed the appellant that

he would ensure that the appellant's "[claims] file was ready for a request from the [Court]." Id. at

2.

According to Mr. Padilla's assertions in his Declaration, the appellant, a few weeks after their

January 2002 meeting, inquired about "[the Court's] time frames" and Mr. Padilla did not provide

that information to the appellant and did not "check . . . to see if [the appellant's claims] file had been

requested by [the Court]." Id. Mr. Padilla further asserted that, on June 5, 2002, the appellant

contacted him and he located the appellant's claims file, which was still present at the San Diego RO.

Declaration at 2. Because he thought the claims file already would have been transferred to

Washington, D.C., in connection with the appeal, Mr. Padilla had "expressed [his] concern to [the

appellant] and [had] asked [the appellant] if he had kept a copy of his appeal paperwork." Id.

During a later conversation that same day, the appellant had responded that the Court did not have

his appeal and that he could not locate his paperwork. Id. With regard to the appellant's June 2002

visit to the San Diego RO, Mr. Padilla asserted in his Declaration that he had assisted the appellant

in completing "another set of forms to send to the [Court]" and that he had faxed to the Court the

appellant's NOA and his Declaration of Financial Hardship form. Id. Last, the Declaration reflects

Mr. Padilla's assertion that "[a]t no time did [he] tell [the appellant] that [he] would handle [the

appellant's] appeal for him" and that he had no reason to believe that the appellant did not submit

his NOA to the Court in January 2002. Id. at 2-3.

In August and September 2002, the Court received from the appellant (and subsequently

accepted for filing) two additional pieces of correspondence. In his September 17, 2002,

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correspondence, the appellant argues that he never received from the Court a response regarding a

request for information on filing an appeal that he allegedly had sent to the Court in January 2002

and attributes the Court's non-response to that request to the situations created as a result of

September 11, 2001, and the subsequent anthrax-contamination scare involving the USPS.

September 17, 2002, Corr. at 3. The appellant's September 20, 2002, submission appears to be a

signed and certified affidavit from Mrs. Tavares in which she essentially reiterates the appellant's

allegations. September 20, 2002, Corr. at 1-5. Subsequently, the Court stayed this matter in order

for the appellant to attempt to retain counsel. Also, the Court notes that, on December 17, 2002, the

Federal Circuit issued Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002).

In January 2003, counsel for the appellant entered her appearance and, on April 11, 2003, the

appellant moved for permission to submit a supplemental response to the Court's June 12, 2002,

order. On that same date, the Court received (and subsequently accepted for filing) the appellant's

supplemental response (with attachments). In this supplement, the appellant disagrees with the

assertions in Mr. Padilla's Declaration and argues that, because of his conversations with Mr. Padilla

from July 2001 to June 2002 and because Mr. Padilla had intervened in a previous matter involving

the appellant's veterans service officer (VSO), he believed that his appeal had been filed by Mr.

Padilla. April 2003 Resp. at 1, 5-9. He further argues that Mr. Padilla's alleged statements to him

that he had a docket number and Mr. Padilla's other statements about the Court's appellate process

misled the appellant to believe that his NOA had been filed in the January 2002 to June 2002 time

frame. Id. He also essentially argues that Mr. Padilla's e-mail reflecting that the appellant had until

June 16, 2002, to file an NOA caused him to file an untimely NOA in June 2002. Id. Thus, he

requests that the Court apply equitable tolling to permit his appeal to continue. Id. at 9. In support

of his arguments, the appellant attached to his April 2003 response, inter alia, an affidavit, in which

he chronicles his pre-2002 interactions with Mr. Padilla regarding the conduct of a VSO and his

interactions with Mr. Padilla subsequent to receiving notice of the Board's January 2002 decision.

April 2003 Resp., Ex. 1 at 1-2. In essence, the appellant also reiterates his assertions that, based on

his prior experiences and contacts with Mr. Padilla, he believed that Mr. Padilla would assist him

with his appeal. April 2003 Resp., Ex. 1 at 3. The Court notes that the appellant also attached

copies of his telephone bills, dated from July 2001 to June 2002, which reflect several telephone

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calls made to Mr. Padilla's office telephone number. On June 4, 2003, the Court, inter alia, ordered

the Secretary to file a supplemental response addressing the appellant's April 11, 2003, pleading and

the impact, if any, of Santana-Venegas and Jaquay, both supra, on the instant matter. The Court

otherwise stayed proceedings.

In July 2003, the Secretary filed a supplemental reply in which he argued, inter alia, that the

holdings in Santana-Venegas and Jaquay, both supra, which both address the availability of

equitable tolling in the veterans benefits context, are inapposite to the instant matter. Secretary's July

2003 Reply at 4-6. Specifically, he argues that this matter is unlike Jaquay because it does not

involve the filing of a motion for BVA reconsideration and because there is no record of a defective

pleading having been filed within the statutory-appeal period. Id. at 4-5. He also argues that this

case "is not affected by Santana-Venegas" because, again, there is no record of a defective pleading

having been filed within the statutory-appeal period and because "it does not appear that [the

appellant] was misled or induced into allowing the filing deadline to pass." Id. at 5. Additionally,

the Secretary argues that this case is unlike Bailey (Harold) v. West, 160 F.3d 1360 (Fed. Cir. 1998)

(en banc), because Mr. Padilla specifically informed the appellant that he could not file an NOA on

the appellant's behalf and because there is no evidence that Mr. Padilla misled the appellant.

Secretary's July 2003 Reply at 3. Thus the Secretary contends that this case must be dismissed for

lack of jurisdiction because the appellant's NOA was not filed within the judicial-appeal period and

because equitable tolling is not warranted. Id. at 6.

The Federal Circuit, on December 15, 2003, issued its opinion in Bailey (Edward) v. Principi,

351 F.3d 1381 (Fed. Cir. 2003). Thereafter, the Court ordered the Secretary to file with the Court

any and all VA Form 119s (Report of Contact forms) in the appellant's claims file dated between

January 18, 2002, and June 5, 2002. The Secretary, on January 15, 2004, advised the Court that the

appellant's claims file contains no VA Form 119s dated between January 18, 2002, and June 5, 2002.

Subsequently, the appellant provided the Court citations to supplemental authority to include Bailey

(Edward), supra, and Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004). In support of the

arguments presented in his April 2003 pleading, the appellant contends, inter alia, that Barrett

"reinforces the Federal Circuit's findings that equitable tolling [is] available 'in a variety of

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circumstances'[] now to include cases where a veteran failed to meet a deadline due to mental

illness." Appellant's April 6, 2004, Corr. at 1-2 (internal citation not provided).

II. Analysis

The ultimate burden of establishing jurisdiction rests with the appellant. See

McNutt v. G.M.A.C., 298 U.S. 178, 189 (1936); Bethea v. Derwinski, 2 Vet.App. 252, 255 (1992).

Pursuant to 38 U.S.C. § 7266(a), in order for a claimant to obtain review of a BVA decision by this

Court, that decision must be final and the person adversely affected by that decision must file a

timely NOA with the Court. See Bailey (Harold), 160 F.3d at 1363. To have been timely filed under

38 U.S.C. § 7266(a) and Rule 4 of this Court's Rules of Practice and Procedure, an NOA generally

must have been received by the Court (or, in certain circumstances, be deemed received) within 120

days after notice of the underlying final BVA decision was mailed. See Cintron v. West, 13 Vet.App.

251, 254 (1999). The Court is authorized to make findings of fact in determining whether an NOA

was timely filed. See Stokes v. Derwinski, 1 Vet.App. 201, 203-04 (1991).

In the instant appeal, the signed and date-stamped copy of the Board decision filed by the

Secretary reflects that the appellant was fully advised of his appellate rights in accordance with 38

U.S.C. § 5104. See Cummings v. West, 136 F.3d 1468, 1470-74 (Fed. Cir. 1998). The Court

received the appellant's NOA on June 5, 2002, 138 days after the date on which the Board mailed

notice of its January 2002 decision. The Court notes that May 20, 2002, was the last day of the

judicial-appeal period. Although the appellant essentially asserts that in January 2002 he had

"mailed an appeal letter into [the Court]" (Appellant's June 2002 Resp. at 1) and, at some other point

of time, had sent correspondence to the Court requesting information regarding the filing of an

appeal (see Appellant's September 17, 2002, Corr. at 3), the Court notes that it did not receive any

such documents and that there is no evidence (other than his assertions) to suggest that these

documents were mailed. Cf. Appellant's July 8, 2002, Addendum, Ex. 1 (appellant's June 5, 2002,

e-mail to Mr. Padilla in which appellant provides USPS tracking numbers as to envelopes containing

his June 2002 NOA and Declaration of Financial Hardship form, which envelopes were sent certified

mail, return receipt requested). To the extent that the appellant may be arguing implicitly that the

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September 11, 2001, tragedy and/or the anthrax-contamination scare involving the USPS may have

prevented the Court from receiving "an appeal letter" (Appellant's June 2002 Resp. at 1) or any other

correspondence that he had allegedly mailed to the Court any time prior to the Court's receipt of the

June 2002 NOA, that argument is unavailing because there is no evidence that any such documents

were mailed to or received by the Court. See Reed v. Principi, 17 Vet.App. 380, 383 (2003) (per

curiam order) (rejecting that appellant's argument that anthrax-contamination scare delayed Court's

receipt of NOA because Court declined to speculate as to "how any anthrax-related mail-processing

delay . . . may have affected when the appellant's NOA may have been delivered to the Court").

Thus, because the appellant's NOA was not received within the 120-day judicial-appeal period (on

or before May 20, 2002), his appeal can proceed only if the Court applies equitable tolling to deem

the June 2002 NOA timely filed. See 38 U.S.C. § 7266; Santana-Venegas, 314 F.3d at 1298;

Jaquay, 304 F.3d at 1288; Bailey (Harold), 160 F.3d at 1364-68.

Under certain circumstances, equitable tolling of the judicial-appeal period may be

appropriate. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); Bailey (Harold), supra

(discussing equitable tolling in veterans benefits context); Evans v. West, 12 Vet.App. 396, 399

(1999). According to the Irwin court, equitable tolling has been allowed in the two situations

discussed below. Courts, however, "have generally been much less forgiving in receiving late filings

where the [appellant] failed to exercise due diligence in preserving his legal rights." Irwin, 498 U.S.

at 96.

Under the first prong in Irwin, equitable tolling may apply where an appellant "has actively

pursued his judicial remedies by filing a defective pleading during the statutory period." Id. The

Secretary contends that the appellant has not satisfied this Irwin prong. The Federal Circuit, in three

instructive opinions, has applied this Irwin prong.

In Jaquay, the Federal Circuit concluded that, where an appellant, during the 120-day

judicial-appeal period, misfiles his motion for Board reconsideration with the same RO from which

his claim originated, he "'exercise[s] due diligence in preserving his legal rights.'" Jaquay, 304 F.3d

at 1287-88 (quoting Irwin, 498 U.S. at 96); see Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991)

(setting forth requirements for Court to have jurisdiction over appeal when appellant has filed motion

for reconsideration of underlying Board decision before filing NOA with Court; such motion filed

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with BVA within 120-day judicial-appeal period generally tolls judicial-appeal period for appeal to

Court). The Federal Circuit held that, in such a situation, an appellant "trigger[s] equitable tolling"

of the 120-day period within which to file a reconsideration motion with the BVA. Jaquay, 304 F.3d

at 1289.

Subsequently, in Santana-Venegas, the Federal Circuit concluded that, where an appellant,

during the 120-day judicial-appeal period, misfiles his NOA with the same RO from which his claim

originated, he "'satisfies the [due] diligence requirement [so as to preserve his legal rights].'"

Santana-Venegas, 314 F.3d at1298 (quoting Jaquay, 304 F.3d at 1288). The Federal Circuit then

held that such a misfiling of an NOA triggers equitable tolling of the 120-day NOA-filing period.

Id. In so holding, however, the Federal Circuit stressed that the RO had not notified that claimant,

until 70 days (which was after the 120-day appeal period had expired) after having received his

NOA, that he should have filed that NOA with this Court. See Santana-Venegas, 314 F.3d at

1295-98 (also noting that appellant had acted upon that advice almost immediately by refiling his

NOA with this Court and that there were VA policies on timely assistance and timely response

(within 10 days of receipt) to all correspondence received by VA). The Federal Circuit again applied

this Irwin prong in Bailey (Edward) and concluded that, where an appellant, during the 120-day

judicial-appeal period, "attempts to file a[n NOA] by completing a document that is clearly intended

to serve as a[n NOA] and . . . ha[ving] that document delivered to the [RO] from which [his] claim

originated . . . [, he] is entitled to invoke the doctrine of equitable tolling." Bailey (Edward),

351 F.3d at 1385 (emphasis added). Similar to Santana-Venegas, supra, the Federal Circuit refer

to the fact that, although Bailey, within the 120-day appeal period (specifically, on the 107th day),

had misfiled his NOA with the RO from which his claim originated, the RO had taken "no action

with respect to that document until [nine months after receiving the document,]" and then only upon

inquiry from Bailey's representative. Id. at 1383.

Further, under the second prong of Irwin, equitable tolling may be available where an

appellant "has been induced or tricked by his adversary's misconduct into allowing the filing deadline

to pass." Irwin, 498 U.S. at 96. In applying this second Irwin prong, the Federal Circuit held in

Bailey (Harold) that, "[g]iven the particular relationship between veterans and the government,"

equitable tolling could apply where, "[a]lthough there is no suggestion of misconduct," VA's conduct

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misled a claimant "into allowing the filing deadline to pass." Bailey (Harold), 160 F.3d at 1365; see

Cintron, 13 Vet.App. at 257 ("cause and effect" relationship must exist, i.e, appellant relied to his

own detriment on action that VA took, or should have taken but did not, and equitable tolling is not

invoked if "the appellant's reliance on VA was not the cause of the late filing").

In addition, the Federal Circuit recently held that, in certain circumstances, "mental illness

may justify the tolling of [38 U.S.C. §] 7266(a)'s 120-day period for appeal." Barrett, 363 F.3d at

1320. However, the Court notes that, in his pleadings, the appellant has not asserted that "the failure

to file [an NOA] was the direct result of a mental illness that rendered him incapable of 'rational

thought or deliberate decision making[]'" or "'incapable of handling [his] own affairs or unable to

function [in] society." Id. at 1321 (internal citations omitted). Accordingly, the Court in this opinion

will not address further any potential applicability of Barrett, supra, to this matter. Nevertheless,

the appellant is free to raise any such argument in a motion for reconsideration that is supported by

appropriate evidence. See U.S. VET . APP . R. 35(a).

With respect to the Secretary's argument that Santana-Venegas and Jaquay are inapposite

because the instant matter does not involve a misfiled or defective pleading, the Court agrees. Those

opinions explicitly apply to instances where a claimant's misfiled or defective pleading satisfied the

first prong under Irwin, supra, of pursuing his judicial remedy. See Santana-Venegas, 314 F.3d at

1297-98; Jaquay, 304 F.3d at 1288. Here, there is no evidence that the appellant misfiled a pleading

within the 120-day judicial-appeal period; the only NOA that has been documented as being received

in this matter was received by the Court on June 5, 2002. See 38 U.S.C. § 7266(b) (appellant shall

file NOA with Court). Specifically, although the Court notes that the appellant has provided copies

of several telephone bills, dated between January and June 2002, and the e-mail exchange between

him and Mr. Padilla on June 5 and 6, 2002, none of these documents constitute a filing within the

judicial-appeal period. Thus, the appellant has not demonstrated that, prior to the expiration of the

judicial-appeal period, he was pursuing his judicial remedies as to the January 18, 2002, BVA

decision. See Bailey (Harold), 160 F.3d at 1364. Accordingly, the appellant has not satisfied the

first prong of Irwin. See Irwin, 498 U.S. at 96; Bailey (Harold), supra.

With respect to equitable tolling under the second prong of Irwin, although the appellant

argues that his past interactions with Mr. Padilla, as well as their communications between January

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and June 2002, misled the appellant into believing that Mr. Padilla had filed his appeal, these

arguments are unavailing because the Court cannot conclude that any documents in the materials

before it demonstrate by a preponderance of the evidence, see McNutt and Bethea, both supra, that

Mr. Padilla misled or induced the appellant into allowing the judicial-appeal period to expire. See

Brown v. West, 13 Vet.App. 88, 91 (1999) (holding that, where allegation that appellant was tricked

or induced by VA into allowing NOA-filing deadline to expire was not documented in materials

before Court and where appellant receives notice of his appellate rights, Bailey (Harold), 160 F.3d

at 1360, is inapposite). In this regard, the Court notes that in Bailey (Harold) the facts regarding

VA's misleading conduct were undisputed whereas, here, the Secretary, through Mr. Padilla's

Declaration, has provided evidence reflecting that no VA misconduct occurred and that the appellant

was informed, as early as January 2002, that VA would not file an appeal on his behalf. See Bailey

(Harold), 160 F.3d at 1361.

Moreover, the appellant's telephone bills dated from January to June 2002 do not reflect the

substance of any conversation that he may have had with Mr. Padilla and there are no Report of

Contact forms from that same time period; it does not appear that the appellant asserts that Mr.

Padilla had any duty to complete Report of Contact forms. In this regard, although the VA

Adjudication Procedure Manual, M21-1 (M21-1), Part III, paragraph 11.18(b), provides that "[a]ll

information received by telephone from a claimant must be completely documented on . . . [a]

Report of Contact[ form] or the equivalent," the Court cannot conclude that Mr. Padilla had any such

duty. Even assuming that M21-1, Part III, paragraph 11.18(b), may be considered a substantive rule,

see Hayes v. Brown, 5 Vet.App. 60, 67 (1993); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990),

there are at least three reasons why that provision does not demonstrate that Mr. Padilla, a

Management Analyst and Community Affairs Officer, had any duty to fill out a VA Form 119 after

his contacts with the appellant. First, paragraph 11.18 is applicable to VA employees authorized to

act under 38 C.F.R. § 3.100 (2003), which generally includes adjudicative personnel. See 38 C.F.R.

§ 3.100 (delegating to the Under Secretary for Benefits and supervisory or adjudicative personnel

within Veterans Benefits Administration designated by the Under Secretary to "make findings and

decisions under applicable laws, regulations, [and] precedents . . . as to entitlement of claimants to

benefits under all laws administered by . . . [VA]"). There is nothing in the materials before the

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Court to suggest that Mr. Padilla is an adjudicative personnel. Next, M21-1, Part III, Chapter 11,

Subchapter III, the subchapter which contains paragraph 11.18, deals with "Use of Telephone,

E-mail, and Fax for Claims Development." M21-1, Part III, SubCh. III. There is nothing in the

materials before the Court to suggest that Mr. Padilla takes part in any claims development. Last,

paragraph 11.18 appears to relate to instances where VA adjudicative personnel request information.

See M21-1, Part III, para. 11.18 (a)(1)-(3). There is no evidence before the Court that reflects that

Mr. Padilla requested information from the appellant. Thus, the Court cannot conclude that Mr.

Padilla had a duty to fill out VA Form 119s with respect to his contacts with the appellant.

Further, Mr. Padilla's June 6, 2002, e-mail, which may indicate his erroneous belief that June

16, 2002, was the last day of the appellant's judicial-appeal period, was transmitted more than two

weeks after the May 20, 2002, expiration of the judicial-appeal period. Thus, because the e-mail

exchange occurred after the expiration of the judicial-appeal period, the appellant has not

demonstrated that that June 2002 e-mail exchange misled or induced him into allowing the

judicial-appeal period to expire. See Cintron, 13 Vet.App. at 257; Brown, supra. Inasmuch as that

e-mail could have a bearing on Mr. Padilla's credibility on the ground that it documents his efforts

to assist the appellant in filing an appeal after Mr. Padilla purportedly had declined to file the appeal

(see Declaration at 1-2), the Court cannot conclude that the appellant's and his wife's statements are

more credible than Mr. Padilla's statements. See Stokes, supra. In this regard, the Court notes, with

respect to the appellant's credibility, that he has alleged that he sent to the Court "an appeal letter,"

Appellant's June 2002 Resp. at 1, but that the Court has not received any such filing. Similarly, the

appellant initially asserted that Mr. Padilla had "vowed to work on [the appellant's] appeal from a

different angle" but then asserted that Mr. Padilla had stated that he simply would send a letter on

the appellant's behalf after Mr. Padilla had related to the appellant that he never had processed an

appeal to the Court. Appellant's June 2002 Resp. at 1-3.

The dissenting Judge, in concluding that the appellant's statements are more credible than Mr.

Padilla's, fails to account for the above-mentioned concerns regarding the appellant's statements.

Instead, he relies on evidence of limited probative value to conclude that "the facts . . . weigh

significantly more in favor of [the appellant's] recollection of events[] than they weigh in favor of

Mr. Padilla's." Post at __. Specifically, although the appellant may have visited Mr. Padilla and

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made telephone calls to his office, the Court cannot conclude that the appellant's version of what

occurred during any visit or telephone call to Mr. Padilla is more credible than Mr. Padilla's version

of events. In this regard, the Court notes that, at best, the evidence as to what occurred is in

equipoise.

The equipoise standard of 38 U.S.C. § 5107(b), however, applies only to the Secretary's, not

the Court's, determinations; the applicable standard here is the preponderance of the evidence

standard under which it is the appellant's burden to demonstrate that he was misled or induced into

allowing the judicial-appeal period to expire. See 38 U.S.C. § 7266(a); McNutt and Bethea, both

supra. Consequently, the Court concludes that the appellant has not met this burden nor the burden

of demonstrating by a preponderance of the evidence that his NOA was timely filed. See id.

Therefore, the Court lacks jurisdiction to review this appeal.

III. Conclusion

Upon consideration of the foregoing and the parties' pleadings, this appeal is DISMISSED

for lack of jurisdiction.

KASOLD, J., dissenting: This case falls squarely within the equitable tolling parameters

established in Bailey v. West, 160 F3d 1360 (1998), which held that, even without a finding of any

misconduct on the part of an employee of the Department of Veterans Affairs, the time to file an

appeal is equitably tolled when the veteran has been "lulled . . . into accepting and relying upon the

advice and aid of the government" and thereby "misled . . . into allowing the filing deadline to pass."

Id at 1365. Mr. Tavares was so lulled in this case.

According to Mr. Tavares, Mr. Padilla had been helping him with his claim since July 2001.

Mr. Tavares submitted telephone records reflecting numerous calls from July 2001 through July

2002 to Mr. Padilla's telephone number at the San Diego Regional Office. He also submitted a copy

of a September 2001 letter to Mr. Padilla waiving his right to a Board hearing. On January 22 or 23,

2002, the day Mr. Tavares received the decision of the Board denying his claim, he and his wife

drove over 60 miles to meet with Mr. Padilla to discuss an appeal. During that meeting, Mr. Tavares

asserts that he was told by Mr. Padilla that he would "work on his appeal from a different angle," and

13

Mr. Tavares came away from that meeting with the understanding that Mr. Padilla "would see that

the claim went into the Court of Veteran's Appeal and [that Mr. Padilla] would send a letter of

support."1

Mr. Tavares states that in March 2002 he was advised by Mr. Padilla that his appeal had been

filed and assigned a docket number, and that Mr. Padilla agreed to "go digging" in the file for the

docket number and provide it to Mr. Tavares. Mr. Tavares further states that he continued to

maintain telephone contact with Mr. Padilla over the next several months trying to get his docket

number and information about his appeal; this included numerous voice messages. In a May

conversation with Mr. Padilla, Mr. Tavares states that he was told that it would take 8 to 9 months

before his case would be heard.

On June 5, 2002, when he was advised by Mr. Padilla that some documents needed to be

signed, Mr. Tavares and his wife undertook the 60-mile trip that same day to meet with Mr. Padilla

and complete another Notice of Appeal and Declaration of Financial Hardship, which were then

faxed to the Court by Mr. Padilla. Mrs. Tavares submitted an affidavit dated September 17, 2002,

supporting the statements of her husband.

In contrast to Mr. Tavares' statements, Mr. Padilla does not mention assisting Mr. Tavares

as early as July 2001, implying that he first met Mr. Tavares in January 2002. While Mr. Padilla

states that he told Mr. Tavares at the January meeting that he was not able to help him file his appeal,

he admits to helping him do exactly that in June, although no explanation is provided as to why such

assistance was permitted in June but not in January. Mr. Padilla also acknowledges talking to Mr.

Tavares a few weeks after the January meeting, although he states that he told Mr. Tavares that he

could neither provide nor obtain information about Court time frames; strangely, Mr. Padilla makes

1

The majority notes that Mr. Tavares asserted that he sent a copy of his appeal to the Court in January 2001,

and further notes that the letter was never received by this Court. This seems inapposite to the issue under consideration,

as lack of proof of mailing an appeal does not translate into lack of credibility of the veteran who says he mailed it.

Documents get lost in the mail and even lost at this Court. See e.g., Evans v. Principi, 17 Vet.App.41, 42 (2003) (lost

or misfiled document). At best, Mr. Tavares’ statement that he mailed a copy of an appeal to the Court is simply a

neutral fact given the nature of the issue before the Court; i.e., whether equitable tolling is applicable in this case because

Mr. Tavares was lulled by the government into letting the filing deadline pass. See Bailey, 160 F3d at 1365. I note that

the mailing of a copy of an appeal is not inconsistent with M r. Tavares’ repeated statements, and the indications of all

the hard facts in this case, that Mr. Padilla was assisting Mr. Tavares in filing his appeal.

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no mention of the numerous calls made to him by Mr. Tavares.2 Mr. Padilla states that he also told

Mr. Tavares on June 5, 2002, that he had no way of contacting the Court and that he was concerned

about the appeal because the claims file was still in the office. Mr. Padilla confirms that Mr. Tavares

came to his office that same day and that they sat down together and completed another set of forms,

and that Mr. Padilla faxed those forms to the Court.

Without ascribing bad faith to either party, the facts, in my opinion, weigh significantly more

in favor of Mr. Tavares' recollection of events, than they weigh in favor of Mr. Padilla's. See Stokes

v. Derwinski, 1 Vet.App. 201, 203-04 (1991) (authorizing the Court to find facts for jurisdictional

purposes). It is undisputed that Mr. Tavares drove over 60 miles to meet with Mr. Padilla

immediately upon receipt of his notice of the Board decision and again immediately upon learning

that an appeal had not been filed, and that numerous phone calls were made by Mr. Tavares to Mr.

Padilla's office phone number. These actions evidence Mr. Tavares' interest in appealing his claim

and his belief that he would receive assistance from Mr. Padilla. Indeed, Mr. Tavares made at least

19 phone calls to Mr. Padilla from the date he met with him on January 22 or 23, 2001, to discuss

the appeal through June 5, 2001, when the appeal was filed by Mr. Padilla on behalf of Mr. Tavares,3

and there is no reasonable, alternative explanation proffered by the Secretary or Mr. Padilla, or

consistent with the facts in this case, other than that Mr. Tavares believed Mr. Padilla "would see

that the claim went into the Court of Veteran's Appeal and [that Mr. Padilla] would send a letter of

support." It is also undisputed that Mr. Padilla helped Mr. Tavares complete the appeal forms and

that he faxed them to the Court. This confirms, at least in the end, Mr. Tavares' belief regarding

assistance from Mr. Padilla. The fact that Mr. Padilla helped complete the appeal forms and fax

them to the Court also weighs against the recollection of Mr. Padilla that he had repeatedly told Mr.

Tavares that he could not assist him and that he had no way of contacting the Court; indeed, it

2

Although not dispositive in my opinion, Mr. Padilla did not document any of his conversations with Mr.

Tavares even though apparently required to do so by the Veterans Benefits Administration's M21-1 Manual. Cf. Fugere

v. Derwinski, 1 Vet.App 103, 107 (1990) (provisions in the M 21-1 M anual that do not merely clarify or explain an

existing rule or statute have the force of law); McCormick v. Gober, 14 Vet.App 39, 46-47 (2000) (substantive provisions

in the M21-1 Manual are enforceable against the Secretary in this Court).

3

Phone records submitted by Mr. Tavares show that he also called Mr. Padilla numerous times before and after

these dates.

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weighs in support of Mr. Tavares' understanding that Mr. Padilla "would see that the claim went into

the Court of Veteran's Appeal [sic] and [that Mr. Padilla] would send a letter of support."

Mr. Tavares' behavior in relying on Mr. Padilla's assistance to file his claim also is consistent

with the documentation he produced and the statements he and his wife submitted to this Court,

whereas Mr. Padilla's behavior in actively filing the appeal in June 2001 is in direct contradiction

to the statements that he claims to have made to Mr. Tavares and the statement that he made to this

Court regarding his ability to provide assistance to Mr. Tavares. Mr. Padilla’s failure to address the

extended contact and working relationship he had with Mr. Tavares from June 2001 through June

2002 and beyond, and his failure to address the many phone calls made to him between January and

June 2002, also weigh against the accuracy of his recollection of events. In short, Mr. Padilla’s

statement to this Court is inherently inconsistent with his behavior, his previous assertions, his own

statement, and the documented facts.

Overall, the evidence supports a conclusion that Mr. Tavares has demonstrated by a

preponderance of evidence that he was "lulled . . . into accepting and relying upon the advice and

aid of the government" and thereby "misled . . . into allowing the filing deadline to pass." See Bailey

at 1365. Finally, the Secretary has not alleged, and I fail to perceive, any prejudice to the Secretary

by a finding that equitable tolling is applicable in this case. See Barrett v. Principi, 363 F.3d 1316,

1320 (2004).

For the reasons stated above, I respectfully dissent.

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