Equitable Tolling CAVC case

[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)

 

 

 

 

 

 

[Lemuel]

Thanks Berta,

Question of tolling a 3.154 medical injury.  This will be helpful.

I'm going to raise the question of if a failure to do a 4.42 compliant injury examination is a 3.154 claim.  Still trying to get my temporal lobe epilepsy (TLE) service connected to my TBI.  Had indications of complex partial seizure twice in the nursing notes during my 30 day injury Navy hospitalization after I was transferred from a civilian hospital where I was observe unconscious for at least more than 30 hours with an additional 30 hours of amnesia.  TLE can present itself as just being drifty.  Since it is often unconscious, the victim can be unaware and has to be informed by friends or family who knew him before the injury.  That didn't happen for me until 20 years later.  Others just write it off as that is the way you are.  It was more noticeable in improvement with proper treatment than by the difference after the long absence.

Edited August 1, 2020 by Lemuel
left out important part (see edit history)

[Berta]

I am glad Tbird has been posting here US CAVC decisions.

They contain a wealth of information.

The US CAVC, even during the Covid situation,  is whipping out their decisions every week.

I have been  perusing their decisions , for as particular case, and found out today it was denied.

It is on their current list of decisions: ( #  25 of 47 decisions)

http://www.uscourts.cavc.gov/recent_decisions.php

That is what I expected. Some of these CAVC cases can never succeed at the CAVC.

 

[Lemuel]

Occasionally they don't directly succeed.  My BVA remand on an unadjudicated claim dragged until I submitted the Rule 21 petition.  The unadjudicated claim quickly got processed and I was awarded TDIU back to September 16, 1985, the last day of my full time employment.  Signed off on by the Executive Director, Compensation Services, Beth Murphy.  So I consider it successful whether or not the Rule 21 Petitions are dismissed or not.

My Petitions, Bray v Wilkie, Vet. App. 20-1323 and 20-1415 are still open fighting the FOIA/Privacy Act withholding of documentation of my visits to a seizure clinic for over 5 months and Back Clinic for over 8 months at West Los Angeles VAMC&RC.  Also have an appeal on Bray v Wilkie, 20-1675 at the CAFC on Bray v Wilkie, Vet. App. 17-2990 at the CAVC. 

All three cases will be relevant for study either as precedent or to see what errors I may have made on the FOIA/Privacy Act withholding and delay of probative documents. 

The BVA doesn't have Subpoena power.  The Secretary does.  The question is how to get the Secretary to use it against himself to get records out of the Medical Division or a report as to which researcher is supposed to keep the research record they were put in as originals instead of copies.

I'm hoping to get some results soon.  My personal demand for action seems to be winding down so I'll have more time to spend on this board.  The last filing on the two cases at the CAVC and the CAFC case were last week.  Now the wait to see if I made it past the jurisdiction hurdles.  The VA GC ask for dismissals of course and I filed my objections to the same.

Looks like Mr. Latham in Latham v Wilkie needs some assistance in writing his petition.  The Court was confused.  That is the only one I looked at because it was connected to this subject line.

I'll keep the board posted.