After over two decades of hide and seek, we finally have an equitable tolling doctrine in place. Now that we’d found out it’s not jurisdictional, all manner of former misfeasance by those unmentionable souls at the RO and BVA can no longer be perpetrated on unwitting VA claimants. After finally swallowing the “nonadversarial” pill yet again, the OGC (Office of General Counsel) has to acknowledge that if they keep hiding (or misconstruing) NOAs (Notice Of Appeal) at ROs or wherever they get mismailed to, that it is a valid reason for tolling the time limit.

This has long been a bone of contention for address-challenged Vets. Some of you who populate this site have more than a passing knowledge of how the system works. For the novitiate, this can be daunting. If you had not read up on it, wanted to do it the old fashioned way with pen and paper, eschew a computer and write it out, you might be confused. If you lose at the RO and are appealing to the BVA, wouldn’t it seem logical to mail it to the BVA in the first place to speed things up? Likewise, if you file an appeal to the next higher court (BVA) at the RO, wouldn’t that imply you’d file a Notice of Appeal to the CAVC at the BVA where you lost?

Miz Joyce Ratliff  accidentally filed a NOA with the North Little Rock, Arkansas Regional office on  August 29th, 2008 from a July 24th, 2008 BVA denial for DIC and accrued benefits. Seems like an honest mistake. She was probably bumbling along on pro se speed working in a wonderful veteran friendly, non adversarial environment where every benefit due is paid. This is where the story goes awry–every time.

The RO guys knew her NOA was time sensitive. Hell, the suspense date was 120 days so October 24, 2008 was Bingo day. It’s already August 29th or say after Labor day and this thing is in the wrong  mail room. All they had to do was what they and their compadres have been doing since the inception of the Court of Veterans Appeals (COVA) in 1988. That is, bury it until October 25th and the claim would die for failure to appeal in a timely manner. Much rending of clothing and rubbing of ashes on the head would ensue afterwards as the RO personnel apologized profusely to the widow woman and allowed as how, if they had only known what it was she was seeking, they could have mailed it to the CAVC themselves and saved her the postage. But for this untimely and unforeseen complication, the NOA was set aside until someone in authority could rule on it. By then, alas, time had expired. Tempus fugit as they were wont to say in Rome.

Anyway, the action picked up again on October 29th, 2011 when Joyce refiled her misplaced NOA with the Court (properly this time). The Secretary moved to dismiss as it was untimely filed-here-almost exactly three years and some change after the Bingo day. This is where the “Be careful what you wish for” moment happens any time after they fundamentally change the ground rules. The first thing that happened was the Court’s V-8 kicked in the rear two barrels on the carburetor. They took it up a notch to a panel to create some precedence. Ruh-oh, Eric.

Whereas before this was going to be a simple “Get lost, lady” scenario, it suddenly became a case where the Court was asking the Secretary if he thought it was okay to hold Miz Ratliff’s NOA (if it indeed was one) hostage until it was moot. Will Gunn and the Eskinazi gang immediately retreated and filed to withdraw their Motion to Dismiss and, in fact, also filed a Joint Motion to Stay proceedings to investigate just exactly what the poor word-challenged widow woman was trying to convey on that day long ago in 2008.

Like a 3 lb. bass who just swallowed your #2 Mepps into the depths of his mouth,  Kasold, Davis and Meg  had this treble hook equally buried and were not about to get rolled out of a decision. Motion to stay proceedings my ass.

[t]he Court granted the Secretary’s motion to withdraw his motion to dismiss, and denied the joint motion to stay. The Court further noted that “‘the 120-day time period in which to file an NOA is not a matter subject to waiver or forfeiture by the Secretary,‘” and ordered that the parties file additional briefing in accordance with its March 27, 2013, order.

Smooth move, Will. Now what. Start up the Adobe X acrobat and start moon-dancing. They came up with the plausible denial that “well, shoot – let’s flesh this out for the Court. Maybe what Miz Joyce was trying to say was she wanted a Motion for Reconsideration? Surely anyone could see that a plea for help in the night could be misunderstood. The only problem with all these mock up scenarios was that they required the RO bozos to notify her post haste or send it back to her with instructions on the correct place to file. Or, in the alternative, to quickly pass it on to some responsible individual at the BVA who would know what to do (or where to hide it). The bozos did nothing of the sort. In fact, they did nothing at all. That’s not an option.

As they say at the corner pizza parlor “It’ll cost ya. ”

Although the Secretary’s policy concerning possible motions for reconsideration is not statutory and was not promulgated as a regulation, it is the Secretary’s self-imposed policy governing the processing of his internal mail, and we do not find it inconsistent with statute and regulation; indeed, given the lack of clarity in many pro se filings, we appreciate the basis for this policy. We additionally note that the Secretary’s policy has been extant for many years but has not been addressed until now due to its inclusion for the first time in the Secretary’s response to our March 2013 order.

Ah here we have the lovely Senator Alan Cranston moment where he said in 1988 ” The VA has been living in splendid isolation for over a hundred years”. This was during the debate over the VJRA and the creation of the CAVC.  Since this is an Order rather than an Opinion, the authorship is per curium- meaning it is the dictum of all three judges with no identified author. As such the “we” of the panel seems to have the heavy imprimatur of Meghan Bartley. The following, paraphrased, could read ” Okay. Fine. Since you continue to cling to your myopic interpretations of what constitutes a Motion for Reconsideration and will give no thought to a misfiled NOA at a RO, we are forced to change what we will accept as legitimate NOAs. From now on, if a Vet accidentally files an appeal at the RO, we get to decide if it will be equitably tolled or not and whether it is a Motion for Reconsideration of a BVA decision or if it is, indeed, a valid NOA. Questions?”

As a practical matter, and because the Secretary has formulated and has the authority to formulate guidelines as to what constitutes a motion for Board reconsideration, see 38 C.F.R.
§ 20.1001(a), we find that the Secretary’s policy of treating every expression of disagreement with a Board decision as a possible motion for Board reconsideration should have the same effect – as to the running of the time in which to file an appeal with this Court – as the filing of a document that is undisputedly a motion for Board reconsideration. Accordingly, given the Secretary’s policy, we hold that when a written expression of disagreement with a Board decision is filed at the RO during the 120-day period to file an NOA, the filing abates finality of the Board decision for purposes of appealing to the Court until one of the following actions is taken: (1) The Secretary determines the written disagreement is an NOA and returns it to the claimant with information concerning the proper location to file an appeal or forwards it to the Court and so notifies the claimant; (2) the Board Chairman determines the status of the document, that is, whether it is a motion for Board reconsideration, and notifies the claimant of his determination; or (3) the claimant files an NOA with the Court and, assuming the Court becomes aware that before the NOA was filed a written disagreement was filed with the RO within the Court’s appeal period, the Court determines that the written disagreement was a misfiled NOA and not a motion for Board reconsideration. Cf. Posey and Boone, both supra; cf. Wachter v. Brown, 7 Vet.App. 396, 397 (1995) (per curiam order)(holding that a premature NOA became effective upon the Chairman’s denial of a motion for Board reconsideration).

And finally, the bitchslap.

As noted above, we do not read the Secretary’s policy as preventing the RO from promptly forwarding to the Court or returning to the claimant, with proper notice as outlined above, a misfiled yet clearly marked or identified NOA. Moreover, nothing prevents a claimant from filing an NOA with the Court at any time; and, whenever a purported NOA is filed with the Court, the Court has jurisdiction to determine its own jurisdiction. See Smith (Irma) v. Brown, 10 Vet.App. 3330, 332 (1997). This is the situation we face here. There is no dispute that Mrs. Ratliff’s August 29, 2008, letter reflects disagreement with the July 24, 2008, Board decision, or that it was filed with the RO within the 120-day appeal period. Thus, per our holding today, the filing of the letter at the RO abated the finality of the Board decision for purposes of appealing to the Court until one of the actions noted above is taken.

Gone are the good old days. No more hide and seek. No more “We were confused. We didn’t understand.” No more “The M21 was unclear on that so we have instituted remedial training and will be holding briefings to be sure to keep a look out for these kinds of things should they pop up in VA mailrooms.”  Nope.  The Court has said you can do whatever you want, gentlemen. However, if you sit on it, they’ll still call it a Notice of Appeal. The jig’s up.