It’s the Law March 2010
Friday, March 26th, 2010
by Richard Cohen, Esq.
©2010 Richard Cohen
Attorney at Law
235 High Street, Room 513
P.O. Box 771
Morgantown, WV 26507-0771
(304)-413-0838
vetlaw @wvajustice.com
http://www.wvajustice.com
MARCH 2010
IS EQUITABLE TOLLING DEAD?
In the January 2010 column I reported that equitable tolling is dead. Now I’m not so sure that the last words on this issue have been spoken.
First, the Federal Circuit’s decision in Henderson was recently appealed to the United States Supreme Court, docket 09-1036. While there is no guarantee that the Supreme Court will agree to hear the case, nor that the Supreme Court will allow equitable tolling if it does hear the case, there is a possibility of a favorable decision which would then make equitable tolling available.
Then, in the recent case of Rickett v. Shinseki, decided March 19th, one judge of the Veterans Court, in a solo dissent, would consider an appeal to the Veterans Court to have been timely filed, as an exception to the 120 day limitation period, where the appeal was misfiled with the VA General Counsel’s Office within 120 days. As we would expect, the GC sat on the filing and then sent it to the Regional Office, rather than to the Court. Although this is not the same as equitable tolling it shows an intent to flexibly apply the statutory rule requiring the appeal to be filed in 120 days.
Until the Supreme Court either declines to review Henderson or affirms it, many appeals which are misfiled or filed late will continue to be rejected. Also, the veterans who will have the greatest difficulty filing their appeals properly and timely are likely going to be the ones who are the ones with the greatest disabilities. But now there is a glimmer of hope.
In Jones v. Shinseki, decided by the Veterans Court on March 25, 2010, the issue was whether the VA complied with its duty to assist by not seeking additional medical examinations after the previous examiners said they could not decide whether there was a relationship between current conditions and military service, which is called medical nexus, “without resort to mere speculation”. The Court concluded it depends on what the examiner said in the rest of the report. If the examiner used that phrase as a short cut to avoid doing the necessary analysis and the report shows that the examiner has not fully considered all pertinent and available medical facts then a new examination is required. Also if the examiner says in the report that additional tests or information will make it possible to arrive at a conclusion then that information must be obtained as well as a new examination. But if the examiner has obviously considered all procurable and assembled data and tests and records and still cannot arrive at a conclusion then no additional examination is required. Applying that rule to the facts of the case the examiner’s opinion on service connection of erectile dysfunction was not found to be based on a well reasoned explanation where it merely recited test results and some facts without explaining why a conclusion could not be reached. With respect to tinnitus, the examiner raised an apparent contradiction in the appellant’s account but did not explain whether resolving that conflict might allow him to render a medical nexus opinion. Accordingly, another exam was required.
Jones, shows that if you receive a medical nexus opinion stating that rendering an opinion would be mere speculation you need to examine the rest of the opinion to determine whether there is a basis for that conclusion, whether the examiner said more information is required or whether the examiner is truthfully saying that with all the facts which are available it is still impossible to reach a conclusion. If the examiner was using the phrase speculation to get out of doing the necessary analysis you are entitled to another exam.