Paralyzed Veterans of America's (Paralyzed Veterans) attorneys have litigated hundreds of cases on behalf of members and other veterans, helping them receive the benefits they have earned. When veterans are denied benefits by the Board of Veterans’ Appeals, they have a right to appeal to the U.S. Court of Appeals for Veterans Claims and then to the U.S. Court of Appeals for the Federal Circuit. Our professional staff represents claimants in these courts and tracks legal issues that matter to veterans.

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Court of Appeals for the Federal Circuit

The Court of Appeals for Veterans Claims decided the case of Henderson v. Peake in 2008. The question before the Court was whether it can have jurisdiction over cases where a veteran files his or her Notice of Appeal (NOA) late because of a mental or physical disability. Some courts have permitted late filing in these circumstances under a theory of equitable tolling, but a 2007 Supreme Court decision, Bowles v. Russell, made courts question whether such late filings may still be permitted. The Court of Appeals for Veterans Claims held that, based on the Supreme Court decision, Mr. Henderson’s appeal was not timely filed and therefore had to be dismissed. 

Mr. Henderson appealed to the Federal Circuit.  The Federal Circuit has decided to hear this important case en banc in September 2009.  Paralyzed Veterans has filed an amicus brief in support of Mr. Henderson.

Read the CAVC’s decision»

Read Paralyzed Veterans’ amicus brief in the Federal Circuit»

Veterans and Due Process

The Federal Circuit recently held in Cushman v. Shinseki that veterans benefits are “nondiscretionary, statutorily mandated benefits.  A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations. We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment of the United States Constitution.”

This is a ground-breaking decision for veterans, and it is a position that Paralyzed Veterans attorneys have taken before the courts for many years.  VA may still choose to appeal the case to the United States Supreme Court, but if the decision stands, it will likely mean greater court scrutiny of VA’s adjudication processes when those processes are challenged.

Read the Federal Circuit decision»

New PTSD Regulations Proposed

On August 24, 2009, VA published regulations with the stated purpose of easing the burden of proof on non-combat veterans who have PTSD and are trying to prove that they should be service connected.  VA is still accepting comments on the proposal, and Paralyzed Veterans of America applauds VA’s efforts to assist veterans in obtaining benefits to which they are entitled more quickly.

Read the proposed rule» 

Attorney Representation

In December 2006, a law was passed that allows veterans to retain counsel after they have filed a Notice of Disagreement. VA created regulations that govern attorney practice within the agency; these regulations require that attorneys be accredited by VA and attend a legal education course on VA claims and benefits.  Paralyzed Veterans believes all veterans should have quality representation and has been working to create training programs both to meet the VA’s requirements and to train attorneys who want to help veterans.  For example, Paralyzed Veterans has partnered with a major law firm, Howrey LLP, and in January we presented a qualified training program for Washington, DC, law firm attorneys who want to help veterans on a pro bono basis.  This program will soon be distributed by the American Bar Association to train pro bono attorneys nationwide.

Read VA’s regulations»

Paralyzed Veterans' Cases

Paralyzed Veterans’ attorneys are awaiting a decision from the Court of Appeals for Veterans Claims in the case of Harris v. Shinseki. In this case, a Paralyzed Veterans member was granted a benefit by VA, only to have VA surreptitiously refuse to give effect to the award. Paralyzed Veterans is arguing that VA’s action is not permitted under any law or regulation and that the benefit should be given effect.

Read the Harris brief»

Cases and other Issues of Interest

The Supreme Court

The Court of Appeals for Veterans Claims and the Federal Circuit have long struggled with how to determine when a VA error is prejudicial to a veteran. In the cases of Sanders v. Peake, M.D., and Simmons v. Peake, M.D., the Federal Circuit set the standard favorably to veterans. The VA appealed to the Supreme Court in 2008, and the Supreme Court decided that the Federal Circuit’s standard was incorrect and reversed the lower court’s decision.  While it remains to be seen how the lower courts will implement this decision, the Supreme Court case will likely make it more difficult for veterans to demonstrate that VA’s errors harmed them.

Read the Supreme Court decision»

Read the transcript of the oral argument at the Supreme Court»

Publications

SOAR, the Service Officers Appeals Report, is a quarterly newsletter providing information on cases at the Board of Veterans' Appeals, Veterans Court, and Court of Appeals for the Federal Circuit; opinions and rulemaking of the Department of Veterans Affairs; judicial review; and other issues of concern to Paralyzed Veterans service officers.

Read the latest issue of SOAR»