Gertrude McKinney v. ROBERT A. MCDONALD, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GERTRUDE MCKINNEY,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7104
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-561, Judge Alan G. Lance, Sr.
______________________
Decided: December 10, 2014
______________________
G ERTRUDE MCK INNEY , of Little Rock, Arkansas, pro
se.
SHELLEY D. WEGER , Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were J OYCE R. B RANDA, Acting
Assistant Attorney General, ROBERT E. K IRSCHMAN, J R.,
Director, and ALLISON K IDD-MILLER, Assistant Director.
Of counsel on the brief were Y. K EN L EE , Deputy Assis-

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MCKINNEY v. MCDONALD 2
tant General Counsel, and MEGHAN D. ALPHONSO, Attor-
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before L OURIE, CHEN, and HUGHES , Circuit Judges.
HUGHES , Circuit Judge
Gertrude McKinney filed an appeal at the U.S. Court
of Appeals for Veterans Claims after the 120-day statuto-
ry appeal period ended. The Veterans Court determined
Ms. McKinney failed to show any circumstance warrant-
ing equitable tolling of the appeal period and dismissed
her claim as untimely filed. Because Ms. McKinney has
not raised any question of law within our limited jurisdic-
tion, we must dismiss her appeal.
I
On October 28, 2013, the Board of Veterans’ Appeals
denied Ms. McKinney’s claim for service connection for a
back disorder. The Board mailed a notice of its decision
on the same day. The notice included a copy of
Ms. McKinney’s appeal rights, which explained that
Ms. McKinney had 120 days from the date the notice was
mailed to file a Notice of Appeal. On February 27, 2014,
more than 120 days later, Ms. McKinney filed a Notice of
Appeal at the U.S. Court of Appeals for Veterans Claims.
The Veterans Court ordered Ms. McKinney to explain
why her appeal should not be dismissed as untimely filed.
Ms. McKinney filed a response stating that she “was not
aware that the time had lapsed and that [she] was outside
its limitations.” S.A. 8. Ms. McKinney further explained
that “[w]ith her health challenges and trying to live from
day to day it is difficult to take care of life’s normal rou-
tine and additional requirements as well.” S.A. 8. She
asked the Veterans Court to allow her to continue pursu-
ing her claim.

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MCKINNEY v. MCDONALD 3
The Veterans Court considered whether
Ms. McKinney’s statements warranted equitable tolling of
the 120-day appeal period and concluded they did not.
S.A. 7 (citing Barrett v. Principi, 363 F.3d 1316, 1321
(Fed. Cir. 2004)). Accordingly, the Veterans Court dis-
missed Ms. McKinney’s appeal as untimely filed under
38 U.S.C. § 7266(a).
Ms. McKinney appeals.
II
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. We
may review “the validity of a decision of the [Veterans]
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the [Veter-
ans] Court in making the decision.” 38 U.S.C. § 7292(a),
(d)(1). But we “may not review (A) a challenge to a factu-
al determination, or (B) a challenge to a law or regulation
as applied to the facts of a particular case,” except to the
extent an appeal presents a constitutional issue.
38 U.S.C. § 7292(d)(2).
Ms. McKinney appears to argue the Veterans Court’s
decision not to apply equitable tolling was improper.
That challenge, however, is to the Veterans Court’s appli-
cation of the governing legal standard to the facts of her
case. We have previously held that we lack jurisdiction to
consider whether the Veterans Court properly applied the
doctrine of equitable tolling. See, e.g., Leonard v. Gober,
223 F.3d 1374, 1376 (Fed. Cir. 2000).
Ms. McKinney does not argue that the Veterans Court
erroneously interpreted a rule of law, statute, or regula-
tion. Indeed, the Veterans Court applied the correct legal
standard to determine whether Ms. McKinney’s health
challenges require equitable tolling of the appeals period.
To obtain the benefit of equitable tolling based on mental

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MCKINNEY v. MCDONALD 4
or physical illness, the veteran must demonstrate the
illness “prevented him from engaging in rational thought
or deliberate decision making” or “rendered him incapable
of handling [his] own affairs or unable to function [in]
society.” Abras v. Nicholson, 403 F.3d 1379, 1381 (Fed.
Cir. 2005) (quoting Barrett, 363 F.3d at 1321) (internal
quotation marks omitted). “A medical diagnosis alone or
mere assertions of mental problems will not suffice.”
Barrett, 363 F.3d at 1321.
Because Ms. McKinney has not raised any issue with-
in our limited jurisdiction, we must dismiss her appeal.
DISMISSED
No costs.

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