Click To Ask Your VA Claims Question
Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
- 0
Equitable Tolling CAVC case
Rate this question
Click To Ask Your VA Claims Question
Read Disability Claims Articles
View All Forums | Chats and Other Events | Donate | Blogs | New Users | Search | Rules
Rate this question
Question
Berta
https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=18-6819&incOrigDkt=Y&incDktEnt
This recent decision by the CAVC can help anyone with an issue of Equitable Tolling.
The VA had considered the NOA was filed too late.(120 days in which to appeal a BVA decision to the CAVC)
The court made this unusual statement:
"Although the appellant was evicted from her home on January 21, 2018, she still managed to file her initial motion for reconsideration by February 1, 2018, missing the deadline to file by only 8 days. See Appellant's Aug. 12, 2019, Response at 1. The Court will therefore toll the 120-day deadline to file a motion for reconsideration. "
( there are many factors to this appeal)
"The Court will therefore deny the Secretary's motion to dismiss and accept the appellant's November 6, 2018, NOA as timely filed. Upon consideration of the foregoing, it is ORDERED that the Secretary's January 31, 2019, motion to dismiss the appeal is denied. It is further ORDERED that the appellant's November 6, 2018, NOA is accepted as timely filed. And it is further ORDERED that within 60 days from the date of this order, the Secretary shall serve a copy of the record before the agency on the appellant and shall file notice of such with the Court. DATED: June 4, 2020 PER CURIAM. GREENBERG, Judge, concurring: I join this unanimous opinion because it is beneficial to the claimant. I maintain that I disagree with the Court's current framework for an equitable tolling analysis."
(I am sure all advocates would disagree as well.... maybe those regulations might change...?)
Unfortunately that still leaves the claimant with problems.The US CAVC cannot accept new evidence, and the BVA reconsideration request she had filed was denied.
This situation could affect any veteran who appeals to the CAVC.
The basis of her appeal was that the RO would not accept her as the legal widow of the veteran., regarding her DIC claim.
The BVA reconsideration denial decision is not identified but maybe I can find it.
The important thing here is how the CAVC handles an untimely NOA.(Notice of Appeal CAVC)
Link to comment
Share on other sites
Top Posters For This Question
2
2
Popular Days
Aug 1
3
Jul 27
1
Top Posters For This Question
Berta 2 posts
Lemuel 2 posts
Popular Days
Aug 1 2020
3 posts
Jul 27 2020
1 post
3 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now