Motions for Reconsideration at the Board and Their Effects on an Appeal to the CAVC
Once the Board issues a final decision denying a claim, a Veteran has several options. First, he can file a motion for reconsideration with the Board at any time. However, in our experience the Board rarely grants motions for reconsideration and this option does not often result in a favorable outcome. Second, the Veteran can file within 120 days of the date of the Board decision a Notice of Appeal with the U.S. Court of Appeals for Veterans Claims. In reviewing the statistics from the Board over the course of the last 10 years or so, the Court rules in favor of Veterans on the merits at a rate that exceeds 50 percent. Some statistics suggest a successful rate approaching 60 or 70 percent. Therefore, an appeal of the U.S. Court of Appeals for Veterans Claims is likely to have a greater chance at success than a motion for reconsideration with the Board.
Now there are some unique rules that effect your appeal to the U.S. Court of Appeals for Veterans Claims when you file a motion for reconsideration. If you file a motion for reconsideration within 120 days after the Board decision, the time period to file an appeal at the U.S. Court of Appeals is “tolled”, which means that it sort of held in limbo pending the outcome of the Boards response to your motion for reconsideration. Therefore, once the Board issues a decision on the motion for reconsideration, assuming the motion for reconsideration was followed within 120 days of the Board decision, then you would have an additional 120 days from the date of that Board response to file your Notice to Appeal with the U.S. Court of Appeals for Veterans Claims.
However, if you file a motion for reconsideration after the expiration of the 120 day period with the U.S. Court of Appeals for Veterans Claims, and you do not file a Notice of Appeals with the U.S. Court of Appeals for Veterans Claims, then you will be barred from later filing an appeal with the Court because once the 120 days period elapses with no Notice of Appeal being filed, your ability to appeal with the U.S. Court of Appeals for Veterans Claims dies.
In some, the best course of action is to file your Notice of Appeal within 120 days of the date of the Board decision. If you legitimately believe that you have a chance at winning your reconsideration motion, then please file such a motion within 120 days after the Board decision so that your right to later appeal to the U.S. Court of Appeals to Veterans Claims can be preserved.