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.
For general guidance with your disability compensation claim, check out DISABLEDVETERANS.ORG for filing questions and strategies. Otherwise, contact your preferred Veteran Service Organization for help with your specific claim.