Understanding Equitable Tolling When And How It Applies in VA Disability Cases

28 Sep 2017

1) What is Equitable Tolling?

Equitable tolling is a legal principle allowing a litigant, under certain circumstances, to extend (or toll) a mandatory filing deadline. Broadly stated, equitable tolling applies when an extraordinary and unforeseeable event occurs - e.g., mental or physical incapacity or a natural disaster (earthquake, fire) - preventing a person, exercising reasonable diligence, from filing a document (usually an appeal) within a mandatory time period.

The key to equitable tolling is that the event must be extraordinary and unforeseeable. By extraordinary, the law means a disruptive event, rendering a person incapable of making a timely filing. A car accident, one resulting in a period of hospitalization, is an example of an extraordinary event.

Unforeseeability is another element of equitable tolling. If a person could have anticipated a potentially disastrous event, then he or she is required to take reasonable precautions to avoid it. For example, if a person has a known mental disorder with severe symptoms, then he/she is expected to take medication to prevent or relieve the symptoms. A debilitating episode of psychiatric symptoms cannot be said to unforeseeable if a person could have avoided it by taking medication.

Similar to foreseeability is the requirement of due diligence. The issue of due diligence is usually discussed in terms of the length of extraordinary event or tolling period. Assuming an extraordinary event, say, the flooding of one's home due to a storm, the person must then exercise due diligence (i.e., take all reasonable measures) to recover from its effects. In short, an extraordinary event does not last forever; at some point a person is expected to have regained his/her ability to make the necessary filing.

As one can see, the requirements for equitable tolling are very stiff. Courts and agencies do not like to extend mandatory deadlines; a claimant will need to come forward with strong evidence of incapacity to obtain the benefit of equitable tolling.

2) Equitable Tolling in the VA System

Importantly, equitable tolling does not apply to all mandatory filing deadlines. In fact, as discussed below, equitable tolling does not apply to two of the three VA mandatory deadlines.

There are three important filing deadlines in the VA system: 1) the one-year filing period for the Notice of Disagreement (NOD) following a rating decision, 2) the 60-day filing period for a Substantive Appeal or Form 9 following a Statement of the Case (SOC) and 3) the 120-day filing period for a Notice of Appeal (NOA) to the Veterans Court following a final Board of Veterans' Appeals' decision.

In Bove v. Shinseki, 25 Vet.App. 136 (2011), the Veterans Court held that equitable tolling applied to the 120-day period for filing a NOA. Thus, the principles of equitable tolling - namely, the existence of an extraordinary event, with a showing of unforeseeability and due diligence - pertain to a late filing of a NOA.

However, in the VLG's opinion, equitable tolling does not apply to the one-year period for filing a NOD. (Upon request, the VLG will be happy to provide a legal analysis for this conclusion). As for the 60-day period for filing a Form 9, only a very diminished form of equitable tolling applies. Upon the claimant's written request, the regulation allows for an extension of this filing period with a showing of "good cause." However, the extension request must be made before the 60-day time period expires. 38 C.F.R. §20.303.


Practice Pointer

While equitable tolling has received a lot of attention as of late, it rarely applies in actual cases. In the VA system, equitable tolling only applies to the 120-day period for filing a Notice of Appeal to the Court of Appeals for Veterans Claims. In these late filing cases, VSOs and attorneys frequently argue for equitable tolling but are seldom successful. With respect to the one-year period for filing NODs, equitable tolling is simply not available. A "good cause" exception does apply to the 60-day filing period for substantive appeals, but this provision has little practical value, as it requires the extension request to be filed before the expiration of the 60-day period. If a claimant is capable of filing an extension request within the 60-day period, then he or she almost certainly will be able to file a substantive appeal within this period. If you have had different experiences we would love to hear about them!


VLG's Bulletin is an educational resource for VSOs. These Bulletins will discuss how court decisions, statutes & regulations can be applied to the advantage of your clients' claims.