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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
SHERRY C. BENSON, APPELLANT,
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge, and GREENBERG and TOTH, Judges.
O R D E R
On September 26, 2017, the Board of Veterans’ Appeals mailed a decision denying
appellant Sherry C. Benson’s application for recognition as the surviving spouse of veteran Charles
Ray Benson for the purpose of receiving VA Dependency and Indemnity Compensation (DIC).
The appellant filed a motion for reconsideration with the Board on February 1, 2018, 128 days
after the Board decision was issued. The Board Chairman denied reconsideration on July 6, 2018.
The appellant filed a Notice of Appeal (NOA) with the Court on November 6, 2018, 123 days after
reconsideration was denied. She admits that her late filing to the Court was based on a mistaken
belief that 120-day filing period meant she had a full 4 months—that is, from July 6 to November
6—to appeal. See Appellant’s Mar. 12, 2020, Response.
On January 31, 2019, the Secretary moved to dismiss the instant appeal for lack of
jurisdiction because the appellant failed to file a timely NOA. The Secretary argued that the
appellant’s NOA was untimely, that she had not asserted a compelling reason for her failure to
submit a timely NOA, and that there were no factors here that would permit equitable tolling of
the appeal period. Secretary’s Motion at 2-3 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
96 (1990)). The Secretary also argued that the appellant had not tolled the period for filing an NOA
by means of filing a timely
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Panel; equitable tolling NOA; 38 U.S.C. § 7266; Bove v. Shinseki, 25 Vet.App. 136, 138-43 (2011) (per curiam order); untimely Notice of Appeal will be treated as timely if . . . the Notice of Appeal is received within 30 days after the expiration of the filing deadline and the appellant demonstrates good cause or excusable neglect for failure to file the Notice of Appeal within the 120-day period." U.S. VET. APP. R. 4(b)(3)(B)(i);
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 18-6819SHERRY C. BENSON, APPELLANT,V.ROBERT L. WILKIE,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before BARTLEY, Chief Judge, and GREENBERG and TOTH, Judges.O R D E RI.On September 26, 2017, the Board of Veterans' Appeals mailed a decision denyingappellant Sherry C. Benson's application for recognition as the surviving spouse of veteran CharlesRay...