VetsFirst believes that the 120-day filing period to appeal a Board of Veterans’ Appeals decision should not be used to deny veterans their appeal rights if their failure to meet the deadline is a result of a disability. An upcoming U.S. Supreme Court case will now decide whether a veteran’s notice of appeal can be late if there is sufficient reason.
In the case of Henderson v. Shinseki, the U.S. Supreme Court will determine whether the U.S. Court of Appeals for Veterans Claims should have applied a legal doctrine known as equitable tolling to determine whether an appeal of a Board of Veterans’ Appeals decision filed after the expiration of the 120-day filing period should be accepted.
The case involves Korean War veteran David Henderson. Mr. Henderson has a 100 percent service-connected disability rating due to severe mental illness. Prior to seeking review by the Supreme Court, the U.S. Court of Appeals for the Federal Circuit upheld the decision of the U.S. Court of Appeals for Veterans Claims to strictly apply the 120-day filing period and reject his appeal because he had missed the deadline by 15 days.
The claim Mr. Henderson was seeking to appeal would increase his level of compensation due to his need for additional services and supports. Mr. Henderson argues that he was unable to understand the appeals process and subsequently missed the appeal deadline because of his service-connected disability.
Mr. Henderson is not alone. Other veterans have been denied their appeal rights due to similar circumstances. Mr. Henderson’s case could potentially change that.
VetsFirst filed a legal brief in support of Mr. Henderson’s petition. VetsFirst believes that veterans such as Mr. Henderson should be able to appeal decisions by the Board of Veterans’ Appeals even if their appeal is filed after the 120-day filing period when they can show good cause as to why they were unable to meet the deadline. Deference should be given to veterans seeking assistance from the VA whenever possible, particularly when the impacts of service-connected disabilities lead to missed deadlines.
It is a widely-applied legal doctrine that an appeal deadline should be extended if it would be fundamentally unfair to strictly enforce the deadline in an individual case. VetsFirst believes that this doctrine should be invoked to help veterans like Mr. Henderson in filing appeals before the U.S. Court of Appeals for Veterans Claims.
VetsFirst hopes that the Supreme Court will rule that equitable tolling should apply in these cases to ensure that all veterans with meritorious claims are able to receive the benefits they have earned through their service to our nation.
Category: Health Care & Benefits