David J. Harms v. R. James Nicholson

As a preliminary matter, it is clear that the appeal of the underlying June 13, 2002, Board decision is untimely. The decision in Browne v. Principi, 16 Vet.App. 278 (2002), is a logical extension of the longstanding tolling principle articulated in Rosler v. Derwinski, 1 Vet.App. 241 (1991). Because the motion to vacate in this case was filed more than 120 days after the date of mailing of the underlying Board decision, the appeal of the underlying Board decision is untimely and must be dismissed. However, for the reasons stated below, I disagree with the holding that the Court lacks…