Veteranclaims’s Blog

May 29, 2014

Single Judge Application, Checo v. Shinseki, ___ F.3d ___ , 2013-7059 (April 23, 2014); Waiver 120-day timeliness; Extraordinary Circumstances

Excerpt from decision below:

“If the petitioner appeals to the Board decision and then receives a negative determination regarding his employability, he will then have 120 days from the date of that Board of Veterans’ Appeals decision, not from the October 31, 2013, Nashville regional office decision to initiate his appeal to the Court. 38 U.S.C. § 7266(a); see In re Quigley, 1 Vet.App. 1 (1990). Should the appellant encounter extraordinary circumstances during the 120-day appeal period, the petitioner is correct in his petition that the Court may waive the timeliness requirement for an appeal. See Checo v. Shinseki, ___ F.3d ___ , 2013-7059 (April 23, 2014).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 14-618
RONALD G. WILCOX, PETITIONER,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before GREENBERG, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On October 31, 2013, the Nashville regional office issued a decision in
part denying the
appellant a total disability rating based on individual unemployability (
TDIU). On November 7,
2013, the Court received a petition from the petitioner asking the Court
for a waiver of the “120 day”
appeal period to “help with my situation in seeking the ruling for being
unemployable.” Upon
receipt of this petition, the Court forwarded the petition to the Board of
Veterans’ Appeals (Board).
However, the petitioner has notified the Court that he would like the
Court to act on his petition.
Unfortunately, the Court is without jurisdiction to address this appeal
because the petitioner
has not exhausted all of his administrative remedies. See Friscia v. Brown,
8 Vet.App. 90, 91 (1995)
(per curiam order) (petitioner not entitled to writ because he had not
exhausted administrative
remedies prior to filing petition). Stated simply, the appellant’s only
remedy available at this time
is to file a Notice of Disagreement with the October 31, 2013, decision
with the Nashville regional
office to institute an appeal of the regional office’s employability
determination. 38 U.S.C. § 7105.
The appellant must file this with VA within one year of the October 31, 2013, Nashville regional office decision, not 120 days as the petitioner appears to have been misinformed about the relevant appeals period. See 38 U.S.C. § 7105(c).
If the petitioner appeals to the Board decision and then receives a negative determination regarding his employability, he will then have 120 days from the date of that Board of Veterans’ Appeals decision, not from the October 31, 2013, Nashville regional office decision to initiate his appeal to the Court. 38 U.S.C. § 7266(a); see In re Quigley, 1 Vet.App. 1 (1990). Should the appellant encounter extraordinary circumstances during the 120-day appeal period, the petitioner is correct in his petition that the Court may waive the timeliness requirement for an appeal. See Checo v. Shinseki, ___ F.3d ___ , 2013-7059 (April 23, 2014).
Based on the foregoing, it is
ORDERED that the petitioner’s motion for extraordinary relief in the
nature of a writ of
mandamus is DENIED.
DATED: May 20, 2014
BY THE COURT:
WILLIAM S. GREENBERG
Judge
Copies to:
Ronald G. Wilcox
VA General Counsel (027)
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