ptsd Vterans Court Of Appeals- I Don't Think I Did It Right

[KristinaMarie]

My PTSD case has been stricken down mainly because the service officer really screwed up and I didn't catch the errors in time. Well, I submitted to the VA that I wanted my case to goto the VA Court of Appeals and I faxed this twice..within the 120 days.

Well, I was going through websites and found one for this particular court. There was a series of forms to turn in to get your case to the court. I did NOT find this site till after the 120 days and when someone read the appeal rights on the back, she didn't say anything about contacting the court so I assumed I would put this in writing to the VA.

Did I screw up or will the VA get it to the Court of Appeals?

Kristina In Colorado :D

[Guest Jim S.]

If you have proof that the VARO received your Fax letting it be known that you wanted to appeal to COVA, then this may apply:

equitable tolling may apply where an appellant "has actively

pursued his judicial remedies by filing a defective pleading during the statutory period." Irwin, 498 U.S. at 96. The United States Court of Appeals for the Federal Circuit (Federal Circuit) applied this Irwin prong in, inter alia, Santana-Venegas v. Principi and concluded that, where an appellant, during the 120-day judicial-appeal period, misfiles his NOA with the same VA regional office (RO) from which his claim originated, he " 'satisfies the [due] diligence requirement [so as to preserve his legal rights].'" Santana-Venegas, 314 F.3d 1293, 1298 (Fed. Cir. 2002) (quoting Jaquay v. Principi, 304 F.3d 1276, 1288 (Fed. Cir. 2002) (en banc)). The Federal Circuit then held that such a misfiling of an NOA "at the same [RO] from which the claim originated" triggers equitable tolling of the 120-day

NOA-filing period. Santana-Venegas, 314 F.3d at 1298; see Jaquay, 304 F. 3d at 1280 (explaining that, in majority of situations, when veteran seeks to file claim for benefits or for reopening, he or she does so at RO and RO adjudicates claim). In so holding, the Federal Circuit referenced that the RO had

not notified Santana-Venegas, until 70 days (which was after the 120-day appeal period had expired) after having received his NOA, that he should have filed that NOA with this Court. See Santana-Venegas, 314 F.3d at 1295-98 (also noting that appellant had acted upon that advice almost immediately by refiling his NOA with this Court and that there were VA policies on timely assistance and timely response (within 10 days of receipt) to all correspondence received by VA). The Federal Circuit again applied this Irwin prong in Bailey (Edward) v. Principi and concluded that, where an appellant, during the 120-day judicial-appeal period, "attempts to file a[n NOA] by completing a document that is clearly intended to serve as a[n NOA] and . . . ha[ving] that document delivered to the [RO] from which [his] claim originated . . . [, he] is entitled to invoke the doctrine of equitable tolling." Bailey (Edward), 351 F.3d 1381, 1385 (Fed.

I would if I were you, make sure that your Fax had arrived and when and who may have signed it into your records and if it is their, then I would get a copy of it and send it in with your perfected claim to COVA making note that the VARO did not notify you of the proper way to submit your claim, whch caused the 120 days to laps. Good luck

Jim S. :D

[Guest Berta]

Dear Sir.

DID you send in to the court your appeal. If you did not fill out the right fourms that should not stop the appeal. But if you did not notify the court you wanted to appeal the decision and the 120 days passed by. Then you may have lost your right to appeal.

Terry Higgins

Kristina- did you get denied by the Board of Veterans Appeals? or the Regional Office-

Only BVA decisions can be appealed to the court- not VARO decisions-

Do you have proof that you sent those faxes-

Can you tell us the reasons and bases they denied on? Can you give us a BVA docket and Citation number for your claims?

They are public knowledge at the BVA site with no names etc- and maybe we could see more there in those decisions to help you with-

BUT if you are talking about a VARO level decision-that cannot bypass the BVA and go to the CAVC.