Cerise Checo v. Eric K. Shinseki
26 Vet. App. 130
Vet. App.2013Background
- Checo appeals a July 2011 Board decision denying an increased rating for lumbosacral stenosis; she filed a Notice of Appeal on December 7, 2011, arguing homelessness caused delay.
- Notice of Appeal was untimely under 38 U.S.C. § 7266(a) (120-day period from mailing).
- Secretary conceded homelessness may be an extraordinary circumstance warranting tolling in some cases, but argues Checo did not prove causation or diligence under McCreary v. Nicholson.
- Checo provided a new address to VA on September 27, 2011; the Board re-sent the decision on October 6, 2011.
- Court presumes homelessness as an extraordinary circumstance for tolling purposes, but must assess whether due diligence and causation are shown.
- Court dismisses the appeal as untimely due to lack of proven equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether homelessness warrants equitable tolling of the 120-day period | Checo argues homelessness is extraordinary and tolling is warranted | Secretary concedes homelessness may warrant tolling in some cases but Checo failed to prove causation and diligence | No equitable tolling; untimely filing stands |
| Whether Checo directly caused the late filing due to homelessness | Checo asserts homelessness caused delay | Secretary contends no direct causation shown | Checo failed to establish direct causation |
| Whether Checo demonstrated due diligence in pursuing the appeal | Checo argues diligence during tolled period | Checo did not show any diligence or actions taken | No due diligence demonstrated; tolling not warranted |
| What time period must show diligence under McCreary | Stop-clock approach urged | Court has not decided timing; but Checo failed to demonstrate diligence | Court did not resolve timing; in this case, no diligence shown |
Key Cases Cited
- McCreary v. Nicholson, 19 Vet.App. 324 (2005) (three-part test for equitable tolling due to extraordinary circumstances)
- McCreary v. Nicholson (reconsideration), 20 Vet.App. 86 (2006) (reaffirmed case-by-case evaluation of tolling)
- Bove v. Shinseki, 25 Vet.App. 136 (2011) (120-day period subject to equitable tolling; case-by-case)
- Nelson v. Nicholson, 19 Vet.App. 548 (2006) (acknowledges no bright-line test; case-by-case)
- Harper v. Ercole, 648 F.3d 132 (2d Cir. 2011) (advances stop-clock concept for tolling period under extraordinary circumstances)