Joseph L. Calderon v. Douglas A. Collins, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH L. CALDERON,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1837
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-6177, Judge Scott Laurer.
______________________
Decided: January 28, 2026
______________________
SHYAM SHANKER , Dechert LLP, Charlotte, NC, argued
for claimant-appellant. Also represented by K ATHERINE A.
H ELM, New York, NY.
NATHANAEL Y ALE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by BRIAN M. BOYNTON , ERIC P. BRUSKIN , PATRICIA M.
M CCARTHY, BRETT SHUMATE ; CARLING K AY BENNETT,
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CALDERON v. COLLINS 2
D EREK SCADDEN , Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
Before REYNA, WALLACH , and H UGHES , Circuit Judges.
WALLACH , Circuit Judge.
Claimant-Appellant, Joseph L. Calderon, (“Appellant”
or “Mr. Calderon”) appeals the Order of the Court of Ap-
peals for Veterans Claims (“CAVC” or “Veterans Court”).
The CAVC dismissed Mr. Calderon’s appeal for untimeli-
ness because his Notice of Appeal (“NOA”) was filed after
the deadline. In doing so, the CAVC denied Mr. Calderon
equitable tolling relief.1 This court has jurisdiction pursu-
ant to 38 U.S.C. § 7292. We hold that the CAVC did not
legally err in determining that equitable tolling does not
apply in Mr. Calderon’s appeal, and the CAVC correctly
granted the Respondent-Appellee’s (“the Secretary’s”) Mo-
tion to Dismiss. Accordingly, we affirm.
I. FACTS
A.
Mr. Calderon deployed with the U.S. Army Reserves to
Panama in 1990. While deployed to Panama, Mr. Calderon
was stopped at a checkpoint by armed members of the Pan-
amanian Civil Forces, who detained and assaulted him,
causing him to lose consciousness. Mr. Calderon alleges
his mental health conditions stem from this trauma. Mr.
Calderon sought service connection for his mental illness
due to these events.
On March 27, 2023, the Board of Veterans’ Appeals
(“Board”) denied Mr. Calderon’s request for service
1 The CAVC Order is in the record at Appx2–5 and re-
ported as Calderon v. McDonough, No. 23-6177, 2024 WL
396644 (Vet. App. Feb. 2, 2024).
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CALDERON v. COLLINS 3
connection for an acquired psychiatric disorder, including
posttraumatic stress disorder (“PTSD”), depression, and
anxiety. On October 2, 2023, Mr. Calderon filed an NOA of
the Board’s decision with the CAVC. His appeal was filed
69 days after the applicable, 120-day deadline. Accord-
ingly, the Secretary filed a motion to dismiss the case due
to an untimely NOA. The CAVC dismissed Mr. Calderon’s
appeal. Mr. Calderon’s appeal to this Court followed.2
B.
Between the Board’s denial and Mr. Calderon filing his
NOA, Mr. Calderon experienced numerous challenging
events in his life that he alleges were “extraordinary cir-
cumstances.” These include that: from March 22 to April
4, 2023, he traveled to Mexico to care for his ailing father.
From April 4 to May 30, 2023, he cared for his father at
home until his father was accepted into a medical care fa-
cility. From May 1 to May 3, Mr. Calderon’s wife was in
the hospital for surgery. Later that month, she had a post-
operative infection requiring treatment through May 30.
His wife contracted COVID-19 on August 15, 2023, suf-
fered from a cellulitis infection two days after that, and had
an allergic reaction to medication later that month. His
father passed away on August 30, 2023. Shortly thereafter,
in early September, Mr. Calderon and his wife contracted
COVID-19. Mr. Calderon also stated that he had been car-
ing for his mother since May 2018, but that his mother’s
health began declining around June 2023 and that she
passed away on December 1, 2023. Mr. Calderon indicated
that he was unable to recall the exact date that he realized
2 There were several, additional intervening events on
the docket of the CAVC case that occurred between when
Calderon’s NOA was filed, and the instant appeal was
docketed—such as show-cause-for-untimeliness briefing,
and Calderon’s motion-for-reconsideration briefing—that
are unnecessary to discuss at length.
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CALDERON v. COLLINS 4
he had missed his filing deadline. He filed his notice of ap-
peal on October 2, 2023.
II. LEGAL STANDARDS
A.
We have jurisdiction pursuant to 38 U.S.C. § 7292 to
review “the validity of a decision of the [CAVC] 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 [CAVC] in making the decision.”
38 U.S.C. § 7292(a). The availability of equitable tolling is
a question of law that we are authorized by statute to ad-
dress. James v. Wilkie, 917 F.3d 1368, 1372 (Fed. Cir.
2019). This Court “may not review (A) a challenge to a fac-
tual determination, or (B) a challenge to a law or regulation
as applied to the facts of a particular case.” 38 U.S.C.
§ 7292(d)(2).
B.
Equitable tolling due to extraordinary circumstances is
warranted where the claimant demonstrates “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks and citation omitted). In other
words, the claimant must demonstrate: “(1) extraordinary
circumstance; (2) due diligence; and (3) causation.” Checo
v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014).
To obtain the benefit of equitable tolling for mental ill-
ness, “a veteran must show that the failure to file was the
direct result of a mental illness that rendered him incapa-
ble of rational thought or deliberate decision making, or in-
capable of handling [his] own affairs or unable to function
[in] society.” Barrett v. Principi, 363 F.3d 1316, 1321
(Fed. Cir. 2004) (Barrett I) (alteration in original) (internal
quotation marks and citations omitted).
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CALDERON v. COLLINS 5
III. DISCUSSION
Mr. Calderon challenges, on four grounds, the CAVC’s
determination that the criteria for equitable tolling had not
been satisfied. As we explain below, we disagree with Mr.
Calderon on each contested ground.
A.
In the first ground on which Mr. Calderon challenges
the CAVC Order, Mr. Calderon argues the CAVC failed in
its analysis of “extraordinary circumstances” for equitable
tolling, by allegedly improperly adopting a categorical rule
barring the application of equitable tolling to Mr. Calderon,
and allegedly failing to consider all of the bases he raised
for “extraordinary circumstances.” The Secretary responds
that the CAVC evaluated the facts presented in the record
and did not improperly limit its extraordinary circum-
stance analysis. We disagree with Mr. Calderon.
Mr. Calderon’s first argument, that the CAVC alleg-
edly improperly adopted a categorical rule, is based on lan-
guage, which Mr. Calderon quotes, from the CAVC Order:
Appellant has explained that he made an im-
mediate effort to file his NOA once he discov-
ered it was late, but he doesn’t account for the
time period after he stopped providing in-
home care for his father. And the Court is un-
convinced that appellant’s caring for his sick
parent is an extraordinary circumstance war-
ranting equitable tolling.
Appx4 (emphasis added) (footnote omitted) (cited in Grey
Br. 4). Mr. Calderon argues the CAVC created a categori-
cal rule because allegedly the CAVC lacked a “rationale”
other than that it was “unconvinced,” Grey Br. 4, and the
CAVC “never addressed whether Mr. Calderon’s in-home
care for his mother from June to December 2023 was an
extraordinary circumstance,” Grey Br. 5.
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CALDERON v. COLLINS 6
The Secretary disagrees. First, the Secretary cites to
the text of the CAVC Order itself. The CAVC “simply found
that in this case ‘appellant’s caring for his sick parent’ did
not prevent him from timely filing his notice of appeal.”
Red Br. 13 (emphasis in original) (citing Appx4). As to the
argument that the CAVC did not consider Calderon’s care
for his mother, the Secretary responds that there is no stat-
ute or rule that requires the CAVC to provide an exhaus-
tive written discussion as to each issue. “[T]his Court can
presume that the [CAVC] considered and rejected” any of
Mr. Calderon’s specific arguments regarding which it did
not go into detail. Red Br. 13–14.
We cannot reject the CAVC’s determination of the
facts. While the language of the Order could have been
clearer, we agree with the Secretary that the CAVC did not
apply an improperly categorical rule. Mr. Calderon has no
concrete basis for his allegation. The plain language of the
Order applies to only Mr. Calderon’s facts, referring to “ap-
pellant’s caring for his sick parent.” Appx4 (emphasis
added). Linguistically, this is distinct from the James case
cited by Mr. Calderon, where this Court reversed the CAVC
for applying a categorical rule. Cf. James v. Wilkie,
917 F.3d at 1373 (reversing CAVC for having categorically
“held ‘that a fallen mailbox flag is not an extraordinary cir-
cumstance beyond [Mr. James]’s control that warrants eq-
uitable tolling.’” (citation omitted)). See generally Blue Br.
23; Oral Arg. at 14:17–28 (available at
https://www.cafc.uscourts.gov/oral-arguments/24-
1837_01062026.mp3). Furthermore, that the CAVC cited
correct legal principles for individualized analyses rein-
forces that the CAVC was aware of, and complied with, the
rule to use an individualized approach. Furthermore, else-
where in its Order, the CAVC cited specific facts of Mr. Cal-
deron’s situation, including those pertaining to the
conditions of his father and mother, which further but-
tresses that the CAVC took an individualized approach.
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CALDERON v. COLLINS 7
Appx2. We lack jurisdiction to disturb the CAVC’s find-
ings.
B.
Next, Mr. Calderon argues the CAVC’s determination
that, on Mr. Calderon’s facts, the criteria for equitable toll-
ing had not been satisfied, was erroneous because it con-
sidered his diligence at inapplicable time periods. Blue Br.
26–29.
We need not reach Mr. Calderon’s argument about dil-
igence in light of our conclusion that the CAVC did not err
in finding a lack of extraordinary circumstance throughout
the pendency of the NOA-filing deadline while Mr. Calde-
ron was in the United States. Mr. Calderon’s failure to es-
tablish an extraordinary circumstance that prevented him
from timely filing his appeal (beyond being out of the coun-
try for the first nine days) is a failure to satisfy an element
of equitable tolling; thus, it is dispositive. See Menominee
Tribe v. United States, 577 U.S. 250, 255–56 (2016) (ex-
pressly characterizing equitable tolling’s two compo-
nents—diligence and extraordinary circumstances—as
“‘elements,’ not merely factors[.]”).
C.
In the third ground on which he challenges the CAVC
Order, Mr. Calderon argues the CAVC failed in its analysis
of mental illness for equitable tolling, by only applying one
part of the two-part test for mental illness under Barrett I.
363 F.3d 1316.
The Barrett I test for whether mental illness may jus-
tify equitable tolling is whether the mental illness renders
the veteran incapable of: (1) “rational thought or deliberate
decision making” or (2) “handling [his] own affairs or una-
ble to function [in] society.” Id. at 1321 (alteration in orig-
inal) (citations omitted). Mr. Calderon alleges the CAVC
only considered the latter prong. Specifically, Mr. Calde-
ron quotes the CAVC’s articulation of his burden as:
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CALDERON v. COLLINS 8
“appellant has the burden of proving that the ‘particular
infirmity’ caused him to be ‘incapable of handling [his] own
affairs or unable to function [in] society,’” Appx4, and made
a finding that his set of PTSD symptoms (lack of sleep and
forgetfulness) “doesn’t rise to the level of showing that he
couldn’t handle his own affairs,” Appx4. Mr. Calderon al-
leges this shows the legal test was “partially applied.” Grey
Br. 17.
We disagree with Mr. Calderon and conclude that the
CAVC did not misapply Barrett I’s test. The CAVC is not
required to provide a complete written discussion as to
each issue. Additionally, Mr. Calderon’s undisputed provi-
sion of constant home-care to his ill parents, and travel out
of the United States, during the period foreclose any fur-
ther inquiry into tolling based on an inability to engage in
rational thought.
D.
Finally, Mr. Calderon argues that the Secretary should
have provided to the CAVC Mr. Calderon’s Health records
from the Department of Veterans Affairs (“VA”) that the
Board relied upon in its dismissal order. Specifically, Mr.
Calderon identifies records that the Board decision cited,
but which were not provided by the Secretary to Mr. Cal-
deron or the CAVC—namely, as the Board referred to
them: “March 2014 VA treatment record”; “June 2014 VA
examination report”; “June 2014 PTSD DBQ,” indicating a
“long history of depression since 1986”; “June 2017 VA
treatment record”; “May 2020 medical opinion”; “June 2014
VA examination”; “December 2020 medical opinion” (sin-
gular); “December 2020 medical opinions” (plural); and
“December 2020 private medical opinions.” See generally
Blue Br. 9 (listing records); Blue Br. 40 (same). Mr. Calde-
ron argues that failing to provide those records, and the
CAVC ruling on the appeal without them, was reversible
error.
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CALDERON v. COLLINS 9
Mr. Calderon relies on this Court’s holdings in Bar-
rett II and cases extending Barrett II that “the government
must provide the Veterans Court (and the veteran) all rec-
ords in its possession relevant to” a veteran’s entitlement
to equitable tolling. Grey Br. 18; see Barrett v. Nicholson,
466 F.3d 1038, 1043–44 (Fed. Cir. 2006) (“Barrett II”); see
also, e.g., Dixon v. Shinseki, 741 F.3d 1367, 1373 (Fed. Cir.
2014); see generally Oral Arg. at 1:39–2:45. Mr. Calderon
adds that it is unfair for him to have had the burden to
produce evidence necessary to support tolling when defend-
ing against the motion to dismiss, but not to be informed
that he was entitled to, or to be given, documents in the
VA’s possession that he says are relevant to the dispute.
Mr. Calderon argues that this Court should consider his
Barrett II argument on appeal in the interest of justice,
even though he did not request the records or make this
argument at the CAVC itself. Grey Br. 21–24.
The Secretary offers multiple arguments in response to
the Barrett II-records argument. First, the Secretary ar-
gues that Mr. Calderon’s Barrett II argument was “for-
feited” because he did not raise it with the CAVC. Further,
the VA’s duty to provide records was not triggered because
the CAVC did not request or determine that it needed ad-
ditional records when it ruled on Mr. Calderon’s appeal;
nor did Mr. Calderon request his VA medical records at any
time.
Mr. Calderon argues that one of the reasons this Court
should consider the records issue now is because he was
“pro se before the Veterans Court.” However, as Mr. Cal-
deron also acknowledges, he had counsel for a reconsidera-
tion motion at CAVC, but he did not raise the issue there.
Even if properly presented, Mr. Calderon’s argument
merely disputes the CAVC’s exercise of its discretion to de-
cide the case based on the parties’ submitted pleadings and
submitted evidence (as opposed to ordering additional
briefing or evidentiary submissions). Thus, Mr. Calderon
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CALDERON v. COLLINS 10
challenges the application of law to the facts of the case and
raises no issue within this Court’s jurisdiction. Addition-
ally, it is worth repeating that Mr. Calderon did not request
the documents, despite their listing in the Board Decision.
Appx18–22.
IV. CONCLUSION
We have considered Mr. Calderon’s remaining argu-
ments, and do not find them persuasive or do not need to
reach them. Therefore, for the foregoing reasons, the deci-
sion of the CAVC is:
AFFIRMED.
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