Friday, April 16, 2010

"Tough Luck" If You Miss A VA Deadline

 Susan M. Graham,  Accredited VA Attorney and Certified Elder Law Attorney, Boise, Idaho  

        David L. Henderson was discharged from the military in 1952, after serving on the front lines in the Korean War and was diagnosed of paranoid schizophrenia.  He petitioned the VA for help with his service-connected condition in 2001.  He represented himself, and his request was denied because he had 120 days to appeal, and he took 135 days.  His request for reconsideration, or waiver of the 120-day deadline was denied by the United States Court of Appeals for the Federal Circuit in Washington.  Why?  Because the US Supreme Court ruled three years ago in Bowles V. Russell, [an appeal about filing deadlines related to a murder case], that filing deadlines are rigid and there are no excuses.

         Even though it may take years for the VA to process a service connected claim, the VA is taking the position that there is no give in the filing deadlines no matter that Mr. Henderson’s psychiatrist said that he was “incapable of rational thought or deliberate decision- making and ...[is] incapable of understanding and meeting deadlines.” 

         This matter has been appealed to the US Supreme Court and hopefully before the Court leaves for the summer break, they will decide to hear this appeal. 

         Of course the legal system is not always fair, but this inflexible approach is more than disappointing as a way for dealing with Veterans with a disability that was caused by their military service and that disability makes it difficult to obtain the benefits to which they are entitled.

 Source:  “Strict Deadlines, Disabled Veterans and Dismissed Cases, by Adam Liptax, published April 5, 2010, The New York Times.