Tyrues v. Shinseki
2013 U.S. App. LEXIS 20615
| Fed. Cir. | 2013Background
- Tyrues, a Persian Gulf War veteran, sought disability benefits under §1110, denied by the Board in 1998 for direct service connection, and remanded to consider Persian Gulf Syndrome under §1117.
- The Board’s 1998 decision separated the claim into direct §1110 and presumptive §1117 grounds, denying §1110 and remanding for §1117 development.
- In 2004, the Board denied benefits under §1117; Tyrues sought Veterans Court review of both the 1998 §1110 denial and the 2004 §1117 denial.
- The Veterans Court dismissed the §1110 portion as untimely under §7266(a) and declined equitable tolling following Henderson v. Shinseki.
- This court later vacated and remanded in light of Henderson to consider whether §7266(a)’s non-jurisdictional, tolling-based approach applied to a mixed Board decision.
- Tyrues petitioned for review in this court, raising whether a mixed Board decision may be appealed immediately and, if not, whether equitable tolling could excuse the 120-day deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a mixed Board decision allowing an immediate appeal of the denial portion is appealable before remand completes. | Tyrues argued the denial on direct §1110 should be immediately appealable. | The government contends the 120-day deadline governs unless tolling applies. | Yes, final denial portions are appealable immediately; tolling may apply under Henderson. |
| Whether the 120-day appeal deadline in §7266(a) applies to mixed decisions, given Henderson v. Shinseki. | Tyrues urged equitable tolling should excuse timing; the deadline is non-jurisdictional but must be interpreted flexibly. | The government defends the 120-day requirement as strict, with tolling limited to case-specific circumstances. | The 120-day rule is non-jurisdictional and subject to equitable tolling; in this case no basis found for tolling. |
| Whether the Roebuck framework determines when the 120-day period accrues for two theories of entitlement to the same disability. | Tyrues argued Roebuck controls that time accrues after all theories are denied. | The government disputes Roebuck’s applicability here. | Roebuck is distinguishable; the Court affirms the rule that the 120-day period runs for a final denial within a mixed decision. |
Key Cases Cited
- Henderson v. Shinseki, 131 S. Ct. 1197 (U.S. 2011) (non-jurisdictional, tolling-based interpretation of §7266(a))
- Elkins v. Gober, 229 F.3d 1369 (Fed.Cir. 2000) (finality and review in mixed Board decisions within VA scheme)
- Brownlee v. DynCorp., 349 F.3d 1343 (Fed.Cir. 2003) (interlocutory appeals not obligatory; distinctions from other contexts)
- Dickinson v. Petroleum Conversion Corp., 338 U.S. 507 (U.S. 1950) (final judgment rule and reviewability of agency action)
- Hill v. Chicago & E.R. Co., 140 U.S. 52 (U.S. 1891) (final judgment review principles applied to appeals)