Ferko: An Untimely NOD and 38 CFR 3.109(b)

Ferko v. McDonough, Case Number 21-3467, decided May 28, 2024 concerns whether a NOD was timely.

Typically a NOD must be submitted within one year from the date of mailing of notice of the decision.  The veteran missed the date by 2 weeks after he had had emergency open heart surgery.  At the time he requested an extension based on good cause citing his surgery.

The VA determined the NOD was untimely but never addressed the extension request.  It then found it did not have jurisdiction.

The Court determined:

“The one-year deadline in section 7105(b) to file an NOD in the legacy system is not a jurisdictional bar to Board review. It is an important and mandatory claim-processing rule, but it does not deprive the Board of the authority to consider the merits of an appeal simply because the NOD is received late. As a nonjurisdictional claim processing rule, section 7105(b)'s one-year period is amenable to an appropriate exception. Indeed, this is exactly what a current VA regulation allows, as our caselaw has long held that 38 C.F.R. § 3.109(b) applies to NODs. That regulation permits extensions to VA's internal deadlines for good cause. It is under this governing regulatory standard that the Board should have considered and adjudicated Mr. Ferko's extension request. But despite the lengthy passage of time, VA has still not issued a decision evincing a proper understanding of § 3.109(b)'s role in permitting it to accept the veteran's untimely NOD.”

Id. at *2. 

Critically, the Court found 38 CFR Section 3.109(b) applies to NODs and states:

“Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues.”

Thus, the Court sidestepped the issue of equitable tolling and simply relied on Section 3.109.

A concurrence also wrote: “The evidence makes a viable case for reversal: Mr. Ferko submitted treatment notes attesting to his open-heart surgery and convalescence that seem sufficient to excuse a 12-day delay in filing his NOD.  Let's face it, if open-heart surgery is not good cause, it's hard to imagine what is. That said, the Board looked at the case through the lens of equitable tolling. R. at 9. It did not grapple with this question as it is framed by the requirements of the regulation. See 38 C.F.R. § 3.109(b) (requiring the claimant to show good cause "as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was"). Stinson and Tadlock counsel that it would be impermissible factfinding for this Court to conclude that Mr. Ferko met the good cause requirement of § 3.109(b). Therefore, mindful of limiting precedent, this case returns to the Board for it to consider the matter of good cause under § 3.109(b).”  Id. at *11.

Another concurrence wrote that it would have decided the case on the basis of equitable tolling because the veteran specifically disclaimed the statutory argument and instead sought to rely on equitable tolling.

This was a full panel decision with the opinion by Judge Toth and several concurring opinions. 

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