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Larry G. Tyrues v. Eric K. Shinseki

February 11, 2011

LARRY G. TYRUES, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



Appeal from the United States Court of Appeals for Veterans Claims in Case No. 04-584, Judge William A. Moorman.

The opinion of the court was delivered by: Rader, Chief Judge.

Before RADER, Chief Judge, LINN and DYK, Circuit Judges.

The United States Court of Appeals for Veterans Claims ("Veterans Court") dismissed Larry J. Tyrues's appeal from the Board of Veterans Appeals ("Board") for lack of jurisdiction. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). Because the Veterans Court correctly interpreted 38 U.S.C. § 7266 to require an appeal within 120 days, this court affirms.

I

Appellant, Mr. Tyrues, served on active duty in the United States Army from September 1969 to April 1971, and from September 1990 to May 1991, including service in the Persian Gulf War.Mr. Tyrues was hospitalized with tonsillitis and refractory pneumonia in March 1994.

Mr. Tyrues pursued disability compensation for the same respiratory symptoms under two different statutes. In March 1995, Mr. Tyrues filed his initial claim with the United States Department of Veterans Affairs ("VA") seeking compensation for a direct service connection lung disorder under 38 U.S.C. § 1110. In December 1996, Mr. Tyrues added a second claim seeking compensation for "Persian Gulf Syndrome," arguing a presumptive service connection theory, under 38 U.S.C. § 1117.

In September 1998 ("September 1998 mixed decision"), the Board denied the § 1110 direct service claim ("September 1998 denied claim") and remanded the § 1117 claim for Persian Gulf Syndrome to a VA Regional Office ("1998 remanded claim").*fn1

The Board then mailed Mr. Tyrues a Notice of Appellate Rights. This notice stated, in relevant part:

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 . . . a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to [the Veterans Court] within 120 days from the date of mailing of notice of the decision . . . The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veteran's Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). (emphases added). Mr. Tyrues did not file a Notice of Appeal within 120 days from the date of mailing of notice of the Board's decision.

In April 2004, the Board again denied the remanded September 1998 claim ("2004 denied claim"). Mr. Tyrues thereafter appealed both the 2004 denied claim and the September 1998 denied claim to the Veterans Court. In October 2009, the Veterans Court affirmed the 2004 denied claim but dismissed the appeal of the September 1998 denied claim for lack of jurisdiction. This court vacated the Veterans Court's October 2009 judgment to dismiss and remanded the matter for reconsideration. Tyrues v. Peake, 273 Fed.Appx. 921 (Fed. Cir. 2008).

An en banc Veterans Court, in a split decision, again dismissed Mr. Tyrues's September 1998 denied claim for lack of jurisdiction. The Veterans Court held that the September 1998 denied claim was "finally decided" and not appealed within 120 days from the date of mailing of the Board's decision, as required by 38 U.S.C. § 7266(a). This court has jurisdiction under 38 U.S.C. § 7292(a).

II

In appeals from the Veterans Court, this court reviews questions of law, including interpretation of statutory and constitutional provisions, without deference. 38 U.S.C. ยง 7292(d)(1). Absent a constitutional issue, this court may not review a challenge to the ...


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