On January 4, 2012, the Court of Appeals for Veterans Claims (CAVC) published two new opinions/orders. One of the cases, Checo v. Shinseki, concerned an untimely Notice of Appeal before the CVAC. Earlier this month, we published a short article on appeals before the Department of Veterans Affairs (VA). The article, which can be accessed at Article on VA Appeals, provides an overview of the timelines for appealing at each stage of the VA claims adjudication process.
In Solze v. Shinseki, the CVAC denied the veteran’s petition for extraordinary relief when there was an active appeal ongoing before the Board of Veterans’ Appeals (BVA). The underlying issue involves a dispute over who the fiduciary will be to manage the veteran’s benefits. The case is extremely fact specific and, as both the majority and dissenting opinion note, can hopefully be resolved quickly in order to permit an elderly veteran access to benefits for which he is already entitled.
On the same day, the CAVC issued an opinion in Checo v. Shinseki regarding when homeless may be an extraordinary circumstance to warrant equitable tolling of the time in which to file a Notice of Appeal. The CAVC ruled that the veteran’s Notice of Appeal was untimely and “she has not carried her burden of demonstrating that equitable tolling is warranted. . . .” The CAVC noted that the VA conceded that “homelessness, in some cases, is an extraordinary circumstance that warrants consideration of equitable tolling.”