Veteranclaims’s Blog

July 14, 2010

Filing Protective Appeal with Veterans Court, Fithian v. Shinseki, No. 08-3077

It is most importance that Veterans appealing a BVA[Board] decision file an appeal with the U.S. Court of Appeals for Veterans Claims[Veterans Court] within 120days of the Board decision. This is true even if you are wanting a reconsideration of the Board decision and file such a reconsideration motion. File a protective NOA with the Veterans Court, you can always withdraw it later if you need to, without penalty.

Why this is important is as the Secretary made clear in oral argument in Fithian, No. 08-3077 July 13, 2010 that a reconsideration motion filed with the BoardDOES NOT toll the 120 days within which an appeal must be filed, despite the fact that information [notices] sent with Board decisions are not clear on this matter.

The court expressed a great deal of concern over this Secretary’s position but has yet to issue a ruling and the Secretary is seeking a full court hearing on this issue.

This also appears to be one of the issues being considered by the Supreme Court in Henderson v. Shinseki, No.2009-7006.

So, bottom line file a appeal [NOA] with the Veterans Court after you receive a Board Decision, you can always withdraw it if the Board grants a reconsideration, Better to be safe than Lose Out.

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