by Kristina Derro
Veteran Disability Lawyer
A recent order by the U.S. Court of Appeals for Veterans Claims put a stay on all cases in which the VA alleged that the Veteran did not appeal a denied Board of Veterans’ Appeals decision within the 120-day deadline. A recent ruling by the U.S. Supreme Court, Henderson v. Shinseki, 131 S. Ct. 1197 (2011), held that the 120-day deadline which the Veteran has to appeal a denied Board decision is not jurisdictional. Therefore, the Supreme Court found that the 120-day deadline is subject to equitable tolling.
What this means, is that if the Veteran had a legitimate reason for not being able to appeal the decision within the 120-day period, the Court will have to consider it. Right now, the Court put all the cases on hold while the judges confer and issue a decision in Henderson about what facts will constitute a “good excuse” for equitable tolling.