Prior to a recent Supreme Court deci­sion, dis­abled vet­er­ans’ appeals were usu­ally not con­sid­ered after the 120-day fil­ing dead­line passed. In Hen­der­son v. Shinseki, decided March 2, 2011, the Supreme Court con­cluded that the 120-day limit was not intended to carry the harsh con­se­quences of the “juris­dic­tional tag.” For vet­er­ans, this means dead­lines related to fil­ing appeals and other claims have increased flex­i­bil­ity, in cer­tain sit­u­a­tions.

Before the deci­sion, fil­ing exten­sions for appeals were not com­monly allowed (referred to as “tolling”). Once the fil­ing dead­line passed, 120 days after an adverse deci­sion for Mr. Hen­der­son, the appeal option was no longer avail­able for that claim. With the new deci­sion, vet­er­ans will be allowed more flexibility with fil­ing dead­lines, espe­cially when the vet­eran is too sick to file in time. Vet­er­ans with Trau­matic Brain Injuries or psy­cho­log­i­cal dis­or­ders who miss fil­ing deadlines may be allowed exten­sions. Pre­vi­ously, the VA con­sid­ered the major­ity of these claims to be “expired” because the time limit of the rule had passed. In other words, fil­ing dead­lines are no longer con­sid­ered absolute dead­lines.

In this case, Mr. Hen­der­son missed the appeal dead­line by 15 days because he was sick. How­ever, the VA con­cluded that his ill­ness did not keep him from appeal­ing in a timely man­ner. For that rea­son, they denied his appeal, which was later upheld by the US Court of Appeals for Vet­er­ans Claims and the Fed­eral Cir­cuit. Hen­der­son died last Octo­ber, prior to this deci­sion. For­tu­nately for his widow, the Supreme Court decided the VA’s appli­ca­tion of a fil­ing dead­line con­tra­dicted Con­gres­sional intent. Con­gres­sional intent for disability claims holds that vet­er­ans’ claims are to be treated in a non-adversarial manner. As such, a non-adversarial sys­tem would allow a sick vet­eran to miss a dead­line by 15 days. This same sys­tem would allow other excep­tions to the rules estab­lish­ing time lim­its for jus­ti­fi­able rea­sons. Thus, any dead­line for vet­er­ans’ claims is no longer absolute, depend­ing on the sit­u­a­tion. Accord­ingly, the Court reversed the ear­lier deci­sions that con­tra­dicted this analy­sis.

Vet­er­ans’ claims for dis­abil­ity com­pen­sa­tion are unique to other admin­is­tra­tive and judicial claims processes, because the VA process is sup­posed to be a “pro-veteran adminis­tra­tive scheme.” There­fore, when there is a “tie” relat­ing to weighted evi­dence (ie two doc­tors say oppos­ing things about a veteran’s con­di­tion, one for the vet­eran and the other against), the deci­sion is sup­posed to fall in favor of the vet­eran. Fur­ther, Con­gress never intended for pro­ce­dural dead­lines to be absolute, con­trary to other areas of law. Veter­ans, depend­ing on the specifics of their claim’s sta­tus, can now push for exten­sions that were oth­er­wise pre­vented. While the VA rep­u­ta­tion, “Delay, deny, hope that I die,” strat­egy worked here, Henderson’s widow will hope­fully see a just end to her husband’s fight, which started in 2001.

The les­son? Never give up.

14 COMMENTS

  1. I have filed claims with the VA and keep getting denied. I showed up at Frank Tejada and the woman DR. I don’t remember her name was too busy looking up Pat Tillman and did not listen to any thing I said. I also suffer from chronic pain and was sent to Waco,Texas the DR. said he was not comfortable giving me the pain meds I was taking so I signed out. Now I called the VA and asked for a hearing just before I went to Maine for Xmas the woman said make sure I leave her my phone number so they would be able to contact me . When I called to see when they were going to contact me she said it could take up to a year. This is bullshit, that adjudicator just wants us to die so he can get his performance bonus. I can not understand how they can live with themselves. He is one sorry son of a bitch!

  2. I applied for my disability comp. in Dec 2007. In Sept 2008 I was DENIED. In Sept 2009 I appealed. I have frontaltemporal dementia, Picks disease. This disease is terminal. In Sept 2010 even though the VA knows of my disease, I sent in a letter from my doctor stating that my disease is terminal. The VFW is my group helping me and they were the ones suggesting that I send the letter. The disease is rare,even though it has been around over 100 years. They don’t know what causes it or how to cure it. It is hard to prove service related. I have leaned heavily on toxic waste especially since I was stationed in the PI for my last 3 years. I even have a letter from my commanding officer from then who is now a retired vice admiral. Now I also have nueropathy badly, which i believe ties right in with the FTD. My problem is the VFW said that after sending my doctors letter in Sept 2010 that I would probably be resolved by Dec. no later than Jan.. Here we are and I’m looking for help. My wife and I don’t get very much from social security and things are rough, especially since I am on limited time. Please reply. sorry about mistakes it took alot to type this.

  3. I filed for disability in Dec 2010. Asbestosis in L lung.This occured in 1949 &just showed up, in a needle biopsy in 6/2006, 57 years after unwrapping a steam valve. They want proof. Iwould suggest to all military to start a log or diary ASAP. Keep records of names, addresses occurances ,eye witness, location and anything else pertinent to what may pop up later in your lives. I can’t prove what they want but I have a complete history of before service and after service of all my jobs and prior addresses and employers and NONE are Asbestos related except the Military.Hope this helps future vets. Encourage everyone to keep RECORDS. I’m still waiting for affirmative action on my quest for disability.

  4. Brother John Schmucker, First of all my brother, it took me (41) yrs. to get my Compensation & Disability, what the VA wants one to do, is to give-up, get disgusted, & forget about it. I have the same as you, its tied up with Agent Orange especially, I have Acute & Subacute neuropathy periheral disease, I used to handle the 55 gallon barrels that the Agent Orange came in, tell the VA you want to be tested for this. if you were stationed in the Phillippines, thats the dumping ground for the Agent orange, for the government, the test is ( 3 hrs. ) long, but it will definetly get you right. The VA is glad to test you for this now & is starting to pay out claims for this deadly disease, don’t give up & God-Bless you & your family ! Tim

  5. ,I filed in March of 2010 with the primary cause being women’s sexual trauma. There are many of us out here who never reported their rape, and although I went to sick bay with a groin injury,repeating yeast and urinary infections, there is no actual record that I WAS RAPED.I am currently an outpatient at the Perry Point facility in Maryland and am in groups for nightmares, women’s trauma,and see a therapist weekly and a psychiatrist every two weeks. When I call the regional VBA in Baltimore, all I get is a run around. Who can help me? I didn’t asked to be ruined for my emotional and relationship “health”by a fellow Marine

  6. My husband finally received 100% disability for his CLL from Agent Orange. The leukemia killed him in October 2010…..it is the cause of death on his death certificate. I have applied for DIC and have only had 3 form letters. It has now been over 7 months since I filed. Is this a normal amount of delay….denial….whatever?

  7. I was put out of the army after 51/2 of duty on a medical discharge. I have been fighting with VA for over eleven years now. Two years ago they award me with 10% (123 a month). For bad legs and hearing loss. I have two kids I can only work about 18-20 hours a week. I get social securty disableity for the same condictions that I have been fighting the VA for for the past 11 years. Now I never saw one day of combat but was there for it if needed I did my contract why can’t they keep theirs. I know why they give over 24million dollars out to emploies every year why we the vets are hurting and fighting and dieing out here. Not one VA worker has lost their loved one, their car, their home, or their job. Like some of vets have.

    • If you are receiving social security disability , then apply for va pension. You don’t have to prove service conection just that you are disabled.

  8. To John Schmucker – FTD has been found to be related to ALS (Lou Gehrig’s Disease) – same spectrum, it is thought. Get evaluated for ALS as ALS is service connected (not from Agent Orange).

  9. In 2008 the Diabled Veterans were assured there is enough budget set aside for Agent Orange. Was it over the last four year just trickled away.
    This is not about the redicoulas Education Bill made by Retired Vietnam General and some how managed to get in the Senate. His own Virginia home state sent him away. Elected to Senate very evel who else would give 6 billion for education Bill he wrote! Are the older Era Veterans not worthy of their due. Why is Ms. saying about it is time to ask the Veterans Disabled all again for the services for budget?

  10. This is some of the saddest correspondence I have ever read concerning the treatment of our nations military members. I ask, ‘What will it take to get these people the treatment and compensation they have earned BEFORE they die?’ I know the VA’s workload has grown greatly over the past few years and I am curious why the VA workforce has not grown to meet this higher need? The blame for this overall situation lies in the office of the White House and our member of the Congress and the Senate. That being said, the VA still is responsible to give the best treatment they are capable of without attitude and argument.

  11. The Veterans Administration official policy is deny deny until the sob disabled vet dies,, and if they say that’s not true they are lying sacks of B.S…

  12. I served in Desert Storm. I was put out of work by VA doctor in Sept 2011 .I am on home oxygen up to 18 hrs a day. Been fighting VA for over 20 years on my disabilities. Was granted 50% in Jun 2012 and the VA suspended all my pay in Jul 2012.Still listed as 50% disabled though. Did get 100% Social Security disability after filing earlier this year-only took 7 weeks. Got S.S. disability after they received my VA medical file. Says a lot about the VA!

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