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Two recent decisions deal with equitable tolling where the veteran’s PTSD symptoms may have prevented him from filing an appeal either in the Regional Office (“RO”) or for an appeal to the Court on time.

In the case decided in the Federal Circuit, in August, the Court determined it was not necessary to decide the tolling issue because the appeal could be resolved by dealing with finality of Regional Office (RO) decisions.

In AG v. Peake 2007-7217, the veteran had claimed that the Veterans Court was wrong in denying him the benefit of equitable tolling. Specifically he argued that because of his PTSD he his failure to timely appeal the RO’s 1983 decision denying his claim for a nervous condition should have been excused.

Rather than decide the equitable tolling issue the Federal Circuit remanded the appeal back to the Veterans Court deciding that because the RO failed to inform the veteran about his right to appeal the disputed question of whether he had earlier filed an appeal , the 1983 denial never became final. As a result the 1983 proceedings were determined to be ongoing because they had not been concluded.

In the other case, this time involving a request for relief for failure a notice of appeal to the Veterans Court within 120 days from the BVA decision, the decision was against the veteran.

In Henderson v. Peake, No. 05-0090, the Veterans Court, in a split decision, decided that even though the veteran submitted a letter from his psychiatrist describing the effect of his disability, he was not entitled to the benefit of equitable tolling because filing a notice of appeal in the CAVC is a jurisdictional requirement which cannot be equitably tolled. One Judge on that three Judge panel disagreed concluding that equitable tolling is applicable.

Obviously, the Henderson case will now be appealed to the Federal Circuit

The National Organization of Veterans’ Advocates, Inc, NOVA, is conducting a seminar September 26-28th in San Francisco providing three days of training for those who do now or want to learn how to represent veterans.

To register go to this link

http://www.vetadvocates.com/index.html

The United States Court of Appeals for Veterans Claims, the Veterans Court, will be holding an oral argument at the seminar. Admission to the oral argument is free but advance registration by calling Rich at (304) 413-0838 is required because of the need to coordinate seating for the observers and seminar participants.