New VA Disability Deadline Rules
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.
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!
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…
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.
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?
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).
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.
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?
,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
AAPTSD in Lakewood, WA an accredited organization full of skilled Veterans Service Officer (253) 589-0766.
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
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.
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.
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!