Donald A. DIXON, Claimant-Appellant,
Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
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Sterling Leboeuf, Arnold & Porter, LLP, of Denver, Colorado, argued for claimant-appellant. With him on the brief was Thomas W. Stoever, Jr.
Allison Kidd-Miller, Senior Trial Counsel, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel were David J. Barrans, Deputy Assistant General Counsel, and Martie Adelman, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before DYK, MAYER, and CHEN, Circuit Judges.
MAYER, Circuit Judge.
Donald A. Dixon appeals the final judgment of the United States Court of Appeals for Veterans Claims (" Veterans Court" ) denying his motion to recall the mandate issued in a decision dismissing his appeal as untimely filed. See Dixon v. Shinseki, No. 08-1475, 2012 WL 3291861 (Vet.App. Aug. 14, 2012) (" Equitable Tolling Decision " ). We reverse and remand.
Dixon served in the United States Army from July 1979 until July 1992. He worked as a chemical operations specialist and served in the Persian Gulf, where he was exposed to pyridostigmine, a medication administered to troops to protect them from nerve agents. J.A. 115. Dixon also " encountered smoke from oil fires, diesel, and burning trash," and had " cutaneous exposure [to] diesel and petrochemical fuel." J.A. 115.
In April 2003, Dixon was diagnosed with sarcoid lungs and transverse myelitis, which left him temporarily paralyzed from the waist down. Four months later, he filed a claim with the Department of Veterans Affairs (" VA" ) seeking service-connected disability benefits for sarcoidosis. He alleged that his " exposure to oil fires and chemicals in Kuwait [was] a major factor" in the development of his illness. J.A. 117.
In a September 2004 rating decision, a VA regional office denied Dixon's claim. On appeal, the Board of Veterans' Appeals (" board" ) affirmed, concluding that there was " no medical evidence relating [Dixon's] postservice diagnosis of ... transverse myelitis and sarcoidosis to service." J.A. 121. Acting pro se, Dixon filed a notice of appeal with the Veterans Court on May 9, 2008, sixty days beyond the 120-day filing deadline specified in 38 U.S.C. § 7266(a). On August 29, 2008, the Veterans
Court dismissed Dixon's appeal, concluding that it was " without jurisdiction" to consider the appeal because it had not been filed within the 120-day filing period. J.A. 132.
In Henderson ex rel. Henderson v. Shinseki, the Supreme Court held that the 120-day filing deadline for appealing to the Veterans Court is not a jurisdictional requirement.
__ U.S. __, 131 S.Ct. 1197, 1203-06, 179 L.Ed.2d 159 (2011) (" Henderson II " ). Instead, section 7266(a)'s time limit is a " quintessential claim-processing rule[ ]," id. at 1203, 131 S.Ct. 1197, which was not intended by Congress " to carry the harsh consequences that accompany the jurisdiction tag," id. at 1206, 131 S.Ct. 1197.
In the wake of Henderson II, the Veterans Court issued an order allowing Dixon, and other similarly-situated veterans, to file motions to recall the mandates dismissing their appeals based on principles of equitable tolling. See Bove v. Shinseki, 25 Vet.App. 136, 139-45 (2011). Still acting pro se, Dixon filed a motion seeking equitable tolling and explaining that he suffered from physical and psychiatric disabilities which prevented him from filing his notice of appeal in a timely manner:
During the latter part of the year 2007 I missed my deadline due to illness and mental stress. I was having continued respiratory episodes, panic attacks, and secluding myself as much as possible due to PTSD. I was so consumed with being ill and believing I was [dying]. I could not concentrate on myself or issues that needed to be resolved. My records will show that I was having many PTSD, gastrointestinal, respiratory, and gout issues at the time.
On July 30, 2012, Dixon filed a supplemental motion stating that during the appeal period he believed that he was " on [his] death bed" and was having many panic attacks related to his " large lymph nodes" which in the next year proved to be a symptom of lymphoma, a form of cancer. J.A. 139. Dixon also submitted a letter from his VA psychiatrist, Gary L. Kielpikowski, M.D., which stated that he had been treating Dixon since 2001 and that Dixon " had severe problems with medical issues and Post Traumatic Stress Disorder during" the period when he was appealing the board's denial of his claim for sarcoidosis. J.A. 137. Kielpikowski explained that Dixon was " unable to attend [to] or focus on the appeal process during the [period from] November 2007 to August 2008." J.A. 137.
On August 14, 2012, the Veterans Court denied Dixon's motion seeking equitable tolling and dismissed his appeal. Although the court acknowledged that Kielpikowski had opined that Dixon could not attend to, or focus on, the appeal process due to his mental and physical infirmities, it determined that Dixon had failed to establish that his untimely filing was " the direct result of his ...