On March 12, 2013, the Court of Appeals for Veterans Claims (CAVC) issued an en banc order denying the Department of Veterans Affairs’ (VA) motion to dismiss after the veteran filed an “intent to appeal” at the incorrect address. The precedential order can be found at Rickett v. Shinseki.
The majority held that equitable tolling of the 120-day period to file a Notice of Appeal applied under the “totality of the circumstances” after the veteran timely filed a “notice to appeal,” however, mailed that notice to the incorrect address. Consequently, the VA’s motion to dismiss was denied. Two separate opinions from Judge Hagel (Judge Lance joining) and Judge Schoelen, concurred with the result, however, disagreed with the majority’s methodology.
Unfortunately, the CAVC will likely need to revisit the issues regarding equitable tolling in future cases. However, veterans can take affirmative steps to ensure that their appeal is timely filed with the correct office. Foremost, veterans need to file an appeal with the CAVC within 120 days after the mailing date of the Board of Veterans’ Appeals decision for which they are disagreeing. I strongly suggest that veterans use the Notice of Appeal form located at Notice of Appeal. Further, the Notice of Appeal should be filed at the following address: Clerk, US Court of Appeals for Veterans Claims, 625 Indiana Avenue, NW, Suite 900, Washington, DC 20004-2950.
I have simplified the appeal process at http://www.finkrosner.com/articles/va-appeal-process.html, so veterans can understand the the timelines necessary for appealing a decision at each stage of the VA adjudication process. If you have a question concerning your VA appeal, please do not hesitate to contact Fink Rosner Ershow-Levenberg for a free consultation at (732) 382-6070 or through our website at www.finkrosner.com.