## Facts

- Larry G. Tyrues, a U.S. Army veteran, sought VA disability compensation for respiratory problems under two theories: direct service connection for a lung disorder and presumptive Persian Gulf War-related service connection (“Persian Gulf Syndrome”).
- He was hospitalized in 1994 with tonsillitis and refractory pneumonia.
- In 1995, he filed a direct service-connection claim; in 1996, he added a Persian Gulf presumptive claim.
- In 1998, the Board of Veterans’ Appeals issued a mixed decision: it denied the direct service-connection claim and remanded the Persian Gulf presumptive claim for further action.
- The Board’s notice stated that an appeal to the Court of Appeals for Veterans Claims had to be filed within 120 days of mailing of the Board decision.
- Tyrues did not appeal the 1998 denial within 120 days; he later appealed only after proceedings on the remanded claim concluded.
- The Veterans Court dismissed the challenge to the 1998 denial as untimely; Tyrues appealed to the Federal Circuit.

## Issues

1. Whether the denied (non-remanded) portion of a mixed Board decision is a final decision immediately appealable to the Veterans Court under 38 U.S.C. § 7266.
2. Whether, after the Supreme Court held § 7266’s 120-day deadline is nonjurisdictional, an untimely appeal of the final portion of a mixed Board decision must still be dismissed absent equitable tolling.

## Decision

- The en banc Federal Circuit affirmed the Veterans Court’s dismissal of Tyrues’s challenge to the 1998 denial as untimely.
- The court held that the non-remanded portion of a mixed Board decision can be final and immediately appealable.
- The court held that § 7266’s 120-day deadline remains enforceable as a claim-processing rule, even though it is not jurisdictional and may be equitably tolled.
- Because Tyrues did not appeal within 120 days and did not establish a basis for equitable tolling sufficient to excuse the delay, the 1998 denial remained final and unreviewable.

## Legal Principles

- A Board decision that denies some claims while remanding others may be final as to the denied claims, triggering immediate appellate rights and obligations for that portion.
- Under 38 U.S.C. § 7266(a), a notice of appeal to the Veterans Court must be filed within 120 days of the mailing of the Board’s final decision as to the claims being appealed.
- The 120-day deadline is a nonjurisdictional claim-processing rule subject to equitable tolling, but it still bars late appeals when tolling is not warranted.
- A claimant may not postpone appellate review of a final denial in a mixed Board decision until completion of remand proceedings on other claims.

## Conclusion

The Federal Circuit held that a mixed Board decision is final and immediately appealable as to the denied claims, requiring a notice of appeal within 120 days; although the deadline is nonjurisdictional and may be equitably tolled, Tyrues’s late appeal of the 1998 denial was properly dismissed.


Tyrues v. Shinseki, 732 F.3d 1351 (Fed. Cir. 2013) (en banc)