Fed. Cir. Opinion in Tyrues v. Shinseki, Non-Remanded Must be Appealed Within 120 Days to the CAVC

The Department of Veterans Affairs (VA) adjudication process “‘is not meant to be a trap for the unwary . . . a stratagem to deny compensation [nor] a minefield” for claimants.  Percy v. Shinseki,  23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009).  For Veteran Larry Tyrues, the majority in Tyrues v. Shinseki did not believe this tenet had application to his case.

Tyrues has a long and complicated procedural history stemming from an original claim for compensation for a lung disability filed in 1995.  As the dissent, Judge Newman, documented “Veteran Tyrues’ ‘claim,’ [was] the subject of three Veterans Court decisions, two Federal Circuit decisions, and a ‘grant of certiori, vacate, and remand’ (GVR) from the Supreme Court.”  The essence of the United States Court of Appeals for the Federal Circuit (Fed. Cir.) majority opinion is relatively straightforward, a non-remanded portion of a “mixed decision from the Board is final for the purposes of [38 U.S.C.] § 7266(a) and must be appealed within 120 days [to the Court of Appeals for Veterans Claims] from the date of judgment.”

For Mr. Tyrues, this meant he was required to file a Notice of Appeal within 120 days of a September 1998 decision from the Board of Veterans’ Appeals [hereinafter “Board”] for the non-remanded portion of that decision.  That September 1998 Board decision had remanded his claim back to the VA Regional Office to discuss whether “Mr. Tyrues’s ‘chronic [lung] disorder manifested by shortness of breath, due to undiagnosed illness,’ was entitled to a presumptive of service connection” pursuant 38 U.S.C. § 1117 (Gulf War Illness).  However, the September 1998 Board decision also denied service connection under 38 U.S.C. § 1110 (direct service connection).   According to the majority, this denied portion of the September 1998 Board decision was a separate decision, Mr. Tyrues was informed concerning his right to appeal in September 1998, and he has not presented extraordinary circumstances that would provide a basis for equitable tolling.  See generally Henderson v. Shinseki, 131 S. Ct. 1197 (2011)(Supreme Court decision holding that  the 120-day rule to file a Notice of Appeal pursuant to 38 U.S.C. § 1117 was non-jurisdictional and, therefore, subject to equitable tolling).  Therefore, although Mr. Tyrues filed a timely Notice of Appeal to the CAVC in 2004 on the remanded issue of presumptive service connection pursuant 38 U.S.C. § 1117, he did not timely file a Notice of Appeal as to the non-remanded portion of the 1998 Board Decision denying service connection pursuant to 38 U.S.C. § 1110.

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Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

3 thoughts on “Fed. Cir. Opinion in Tyrues v. Shinseki, Non-Remanded Must be Appealed Within 120 Days to the CAVC

  1. Let me see if I can untwist this missive. Mr.Tyrues denial of presumptive service connection was partially remanded to the VA for discussion. Part was not remanded, and Mr. Tyrues had 120 days to appeal that portion. Please correct me if I am wrong, but appeal was not necessary for the remanded portion, as it was sent back by the court. So he had reasonable cause to believe the appeal he made was correct and timely for the non-remanded portion. (That is another can of worms only a lawyer could love.) So the ‘Board’ determined that even though the VA adjudication process is not meant to be a “stratagem to deny compensation”, it can and will be used in just that way. Not being an attorney, I could be wrong in my legal understanding and in my interpretation of the decision. Most of us are not attorneys and should not be bumfuzzled by the laws we are supposed to live by. But that’s another story. If I am correct in my view of the decision, please tell me no one in your firm handled this case.
    Steve Hoevelman

  2. Steve, negative on the representation end from our firm for Mr. Tyrues (I believe I was stationed in Korea when his case first got to the court). The important take-away is this (best provided by example): (1) Veteran has two issues pending before the Board of Veterans’ Appeal, increase in disability rating for IHD and denial of service connection for bilateral hearing loss; (2) Board issues decision erroneous denying the increase for IHD and remands the issue of bilateral hearing loss to the AMC/RO for further development . . . (3) veteran would need to file an Notice of Appeal within 120 days to the Court of Appeals for Veterans Claims on the IHD increase to further appeal, however, the issue of service connection for bilateral hearing loss would not be appealable to the CAVC, its jurisdiction lies with the AMC/RO pending compliance with the Board’s remand instructions. Seth

  3. Seth, sorry it took so long to get back to you. It seems this was less a matter of obfuscation, and more like me seeing what I thought I read. It still seems Mr. Tyrues lacked competent representation, or he wouldn’t appeal the wrong part of the decision. Thank you for your example. The old adage is true. I wouldn’t take out my own appendix.

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