suggesting that defective notice of appellant’s rights could extend NOA filing period
How later courts described this case
- suggesting that defective notice of appellant’s rights could extend NOA filing period
- suggesting that defective notice of appellate rights could extend NOA filing period
- BVA notice of appellate rights satisfies 38 U.S.C. § 5104(a) requirements
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
I concur in part LA. and B. and the result in part I.C. I disagree, however, with the majority’s analysis as to the latter which is predicated on the hypothesis that Butler v. Derwinski, 960 F.2d 139 (Fed.Cir.1992) which determined that this Court cannot extend the 120-day limit set forth in 38 U.S.C. § 7266 (a) upon a showing of good cause, mandated the Court’s decision in Jones v. *67 Derwinski, 2 Vet.App. 362 (1992). In Jones , the Court determined that the Butler decision overruled that part of the Court’s decision in Elsevier v. Derwinski, 1 Vet.App. 150, 154 (1991), which suggested that the doctrine of equitable tolling was “potentially applicable” to the 120-day statutory period for filing an appeal to this Court. Jones, 2 Vet.App. at 363 . However, the Butler opinion did not address Elsevier , equitable tolling, or equitable estoppel and, most significantly, did not address Irwin v. Department of Veterans Affairs, 498 U.S. 89 , 111 S.Ct. 453 , 112 L.Ed.2d 435 (1990) which made principles of equitable tolling applicable to suits against the government which involve time requirements. See Butler, supra; see also Dudley v. Derwinski, 2 Vet.App. 602, 605 (1992)(en banc) (Kramer, J. and Steinberg, J., dissenting). Nevertheless, Dudley and Jones are the law and therefore under the doctrine set forth in Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992), control the result to be reached by the three-judge panel in this case. Only the en banc Court can reverse the rule set forth in Dudley and Jones .