Checo v. Shinseki, No. 13-7059 (Fed. Cir. 2014)
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Checo sought an increased disability rating for lumbosacral spinal stenosis, including disk bulges, which was rated at a 20% disability. On July 6, 2011, the Board of Veterans’ Appeals denied her request. Checo was homeless, residing in shelters and temporary housing without the ability to receive mail. On September 27, 2011, she contacted the VA to provide a new address, and received a copy of the adverse decision on October 6, 2011; 91 days of the 120-day filing period under 38 U.S.C. 7266 had passed. On December 7, 2011, Checo filed a Notice of Appeal, 33 days late. She wrote: “Due to economic hardship, I’ve been homeless for extensive periods of time since July 2009 … and did not learn about the hearing and subsequent decision until” October 2011. The Clerk of the Veterans Court ordered the Secretary to file a response discussing whether the circumstances warranted equitable tolling of the judicial appeal period. In its response, the Secretary noted that “it appears that [Ms. Checo’s] homelessness was due to circumstances beyond her control” and that homelessness “would have delayed her filing of her NOA.” After the Veterans Court accepted the Secretary’s concession that Checo’s homelessness qualified as an extraordinary circumstance, it dismissed, finding that Checo failed to prove two other necessary elements, due diligence and direct causation,—to warrant equitable tolling. The Federal Circuit vacated. The Veterans Court used an inappropriate due diligence standard and erred in determining that homelessness did not cause the delay.
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