There was a time when a veteran who failed to file his Notice of Appeal at the Court of Appeals for Veterans Claims (Veterans’ Court) within 120 days of receiving his decision from the Board of Veterans Appeals had no chance of his case actually being reviewed by the Veterans Court. That is changing.
First, the U.S. Supreme Court held that the Veterans’ Court possessed the discretion to review appeals in which the veteran didn’t file his appeal within the 120-day time-frame. The Veterans Court then determined that it would review cases in which the appeal was untimely if
- extraordinary circumstances prevented the veteran from timely filing,
- the veteran exercised due diligence, and
- the extraordinary circumstances caused the untimely filing.
Now, the U.S. Court of Appeals for the Federal Circuit, the court that is responsible for reviewing decisions from the Veterans’ Court, has determined that the veteran only needs to show that he acted diligently during the period where extraordinary circumstances were present. This means that, if the veteran was homeless and unable to receive mail (thus preventing receipt of the Board’s decision) during part of the appeals period, he would only need to show that he acted diligently during the time he was homeless. This is critical because in some cases, the veteran doesn’t immediately file an appeal once the extraordinary circumstances period ends (for example, the period where the veteran’s homelessness ends and the veteran receives the Board’s decision in the mail), something that may be used against the veteran at court.
All of that said, I will leave you with the following warning: veterans need to be making every effort possible to timely file appeals at the Veterans’ Court. You have 120 days after the date of the Board’s decision to make your appeal. Never ever assume that this period will be extended, because in all likelihood it will not, and you don’t want to leave it up to the Veterans’ Court as to whether it will review your case. The deadline is still the deadline. But, in some rare cases, it is now clear that the Veterans’ Court might choose to accept an appeal that is untimely filed.