The veteran received a Board decision denying an increased rating claim and, within about two weeks, filed a motion for reconsideration with the Board. The Board denied reconsideration after the original 120-day judicial appeal period had elapsed, and the veteran then filed a Notice of Appeal with the Court. The Secretary moved to dismiss as untimely. The Court rejected that position, relying on administrative tolling principles from ICC v. Brotherhood of Locomotive Engineers and related rehearing cases. It held that a timely motion for reconsideration filed during the 120-day period renders the underlying Board decision nonfinal, so the appeal period is abated and a new 120-day period begins when notice of the Board’s denial of reconsideration is mailed. Because the veteran filed his NOA within that new period, jurisdiction existed and the motion to dismiss was denied. The decision is an important jurisdictional rule for veterans who pursue Board reconsideration before or instead of filing a protective appeal.

A timely motion for reconsideration filed with the Board during the 120-day judicial appeal period abates the finality of the underlying Board decision and triggers a new 120-day appeal period from the date the Board mails notice denying reconsideration, unless the motion is withdrawn or reconsideration is granted.

A veteran does not lose Court review by first seeking timely Board reconsideration; the appeal clock restarts when the Board acts on that request.

Rosler is a foundational jurisdiction case on how Board reconsideration interacts with the Court appeal deadline. It gives practitioners a clear rule for calculating timeliness and helps avoid premature dismissals when a claimant sought reconsideration before appealing.

Dismissal of a Court appeal as untimely without accounting for a timely Board reconsideration motion filed within the original 120-day period.

A veteran receives a Board denial on January 1, files a motion for reconsideration on January 20, and the Board denies reconsideration on June 1. Under Rosler, the veteran has a new 120 days from the mailing of the denial notice to file a Notice of Appeal.

Use Rosler to oppose jurisdictional dismissal where the record shows a timely reconsideration motion was filed before the original appeal period expired. It is also useful to explain why a protective appeal is optional, not mandatory, when reconsideration is pursued first.

ICC v. Brotherhood of Locomotive Engineers, Outland v. C.A.B., United States v. Seatrain Lines, Browder v. Director, Dept. of Corrections of Ill., Missouri v. Jenkins