Posts Tagged ‘equitable tolling’

Court Issues Stay, Pending Result of Henderson

by Kristina Derro
Veteran Disability Lawyer

A recent order by the U.S. Court of Appeals for Veterans Claims put a stay on all cases in which the VA alleged that the Veteran did not appeal a denied Board of Veterans’ Appeals decision within the 120-day deadline. A recent ruling by the U.S. Supreme Court, Henderson v. Shinseki, 131 S. Ct. 1197 (2011), held that the 120-day deadline which the Veteran has to appeal a denied Board decision is not jurisdictional. Therefore, the Supreme Court found that the 120-day deadline is subject to equitable tolling.

What this means, is that if the Veteran had a legitimate reason for not being able to appeal the decision within the 120-day period, the Court will have to consider it. Right now, the Court put all the cases on hold while the judges confer and issue a decision in Henderson about what facts will constitute a “good excuse” for equitable tolling.

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

Rare US Supreme Court Case

by Jim Fausone
Veteran Disability Lawyer

It is rare for the US Supreme Court to take up a case involving veteran issues. 

In a recent decision known as Henderson, Justice Samuel Alito said, “The (Department of Veterans Affairs) is charged with the responsibility of assisting veterans in developing evidence that supports their claims, and in evaluating that evidence, the VA must give the veteran the benefit of any doubt. Rigid jurisdictional treatment of the 120-day period for filing a notice of appeal in the Veterans Court would clash sharply with this scheme.” 

Alito said Congress, in writing the veterans’ judicial-review law, had not prevented judges from looking at individual situations to see whether a deadline exception was warranted.  VA has been strict in using deadlines to kill off a veterans claim. 

Veteran disability lawyers have argued for years the Court must look at the circumstances and apply legal concepts like equitable tolling.  Now the US Supreme Court has indicated agreement. This should help veterans and tell VA to be more flexible in claim review. See the following article for more information.

http://www.armytimes.com/news/2011/03/ap-high-court-allows-flexibility-for-ill-veterans-030111/

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com