What to Do When You Miss Your Appeal Deadline

The VA issues different forms to grant or deny disability claims, and each form has its own appeal window.  For a rating decision, a Veteran has within one year to appeal the denial.  For a statement of the case (SOC), a Veteran has 60 days to appeal that decision to the Board of Veterans’ Appeals (BVA). And for a decision issued by the Board, a Veteran has 120 days to appeal to the Court of Appeals for Veterans’ Claims (CAVC).

However, in some cases the appeal deadline may be missed.  In these instances, what are the options to keep your claims going?

Showing Good Cause to Miss Your Appeal Deadline

At the regional office or at the Board, the Veteran will have to request an extension, and he will have to show “good cause” for why the appeal was not timely filed.  “Good cause” taken from other areas of VA law include: hospitalization of the claimant or death of an immediate family member. Good cause is a factual determination, so what actually constitutes “good cause” will differ depending on the facts of each case.

In order to argue that the Veteran did not receive a copy of the decision, however, generally the Veteran will have to provide “clear evidence” that the VA did not mail the decision. Allegations of nonreceipt are typically not sufficient.  On the other hand, when a Veteran has inquired about the status of his claim after the date of mailing of the decision, if the VA does not provide evidence of the mailing, this may rebut the presumption that the VA mailed the decision in a timely manner.

Filing a Late Claim at the CAVC

The Veteran has more options for filing a late claim at the CAVC, and the rules there are surprisingly lenient.

First, if the 120 day appeal period has been missed but the appeal is filed within 30 days of the deadline, the Court may accept the filing if the Veteran shows good cause or excusable neglect.

Excusable Neglect

“Excusable neglect” is even broader than good cause.  It is defined in other areas of federal law to include lost mail, plausible misinterpretations of ambiguous rules, or an attempt to learn when the decision date was, but with no attempt to follow-up before the appeal date passed.  Inadvertence, mistakes, or carelessness may also count as excusable neglect, depending on the facts. Basically, excusable neglect is not limited to circumstances beyond the control of the Veteran.

Equitable Tolling

Second, however, if more than 30 days have passed, the Court may still accept the filing if the Veteran argues equitable tolling.  In order to succeed on an equitable tolling argument, the Veteran has to show an extraordinary circumstance that prevented filing in a timely manner; and the exercise of reasonable due diligence in attempting to file.

The circumstances that allow for equitable tolling will depend on the facts of the case.  Scenarios that have not counted for equitable tolling purposes include:

  • A change in residence
  • General neglect or procrastination
  • A medical diagnosis alone
  • Vague assertions of medical or physical problems
  • Misplaced paperwork following a hurricane
  • Ordinary attorney neglect. However, egregious attorney misconduct may allow for equitable tolling.

Additionally, to successfully blame mental health for a late filing, the Veteran must show that he was incapable of handling his own affairs.

Third, no matter when a Veteran files his appeal to the Court, if the VA’s attorneys do not object to the untimely filing within 45 days of the filing, the filing is treated as timely, regardless of the day it was received.  So, even if a Veteran does not timely file his appeal to the Court and he does not have any excuse, if the VA does not catch the mistake within 45 days, the Court may still accept the filing.

Reopening a Claim

Finally, whether a deadline was missed at the regional office, the Board, or the Court, the Veteran can still reopen the claim if he/she presents “new and relevant evidence” in support of the claim.  The Veteran can also reopen a claim on a “clear and unmistakable error” (CUE) basis if they can show that an error was clearly made in the original decision.  However, CUE claims are rarely granted.

How We Can Help

If you need assistance crafting an effective appeal for your decision, we can help. Our VA appeals attorneys have helped thousands of fellow Veterans in their fight for disability benefits. We understand the appeals process and we are dedicated to ensuring Veterans receive the compensation they are entitled to. If you have received an unfavorable decision or your claim has been denied, contact Berry Law today for a free case evaluation.