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.