Tuesday, March 12, 2013

Rickett v. Shinseki

Rickett v. Shinseki, 26 Vet.App. 210 (Mar. 12, 2013) (per curiam order)
Equitable tolling is warranted when a veteran submits an NOA to VA’s Office of the General Counsel within the 120-day appeal period. The Court stated that “equitable tolling is predicated primarily on the due diligence of the prospective appellant as opposed to the particularity of the location at which the prospective appellant misfiles his or her NOA.” 26 Vet.App. at 218. The criteria for equitable tolling in cases of timely misfilings are (1) a timely misfiling (i.e., within the 120-day appeal period); (2) the intent to appeal as shown in the form and content of the NOA and the circumstances surrounding the filing of the NOA; (3) notice to VA of intent to appeal; and (4) relaxed due diligence for pro se appellant based on totality of the circumstances. Id. at 218-20.

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