In a case closely watched by many veterans service organizations, Henderson v. Shinseki, the Supreme Court has ruled (8-0) that a notice of appeal in the veterans law context is a claims-processing rule and not a jurisdictional one. This means that when the Department of Veterans Affairs (VA) has denied benefits, a veteran can, under some circumstances, still receive judicial review—even if he or she files an untimely notice of appeal.
“If for some reason, acceptable to the court, the veteran makes a mistake—sends a timely notice of appeal to the wrong address, perhaps—it allows a court to accept an appeal,” Bill Mailander, general counsel for Paralyzed Veterans of America, explained.
The decision is a win for veterans, but it could be some time before we know the circumstances under which a court might hear an otherwise late notice of appeal, he added.
Paralyzed Veterans was joined by AARP in the submission of an amicus brief (friend of the court) in the case to bring important concerns of older veterans and veterans with catastrophic disabilities to the Supreme Court’s attention. The Court unanimously rejected the rigid interpretation by lower courts that the filing deadline rules are inflexible.
Veterans with catastrophic disabilities and older veterans sometimes miss filing deadlines for a variety of reasons.
“It’s important to our membership because sometimes veterans with spinal cord injury, or other catastrophic injuries, are in hospitals for a long time and may not get their mail or be in a position health-wise to act,” Mailander said. “It is possible that the court may look at the individual facts and issue a very narrow decision in the Henderson case itself.”
Alternatively, the courts could opt to explore the issue more broadly.
“In any event, I hope the courts ask for some assistance in this area,” Mailander said.
“Maybe issue an order to the parties, and to veterans groups, such as Paralyzed Veterans of America, to provide information about the VA benefits adjudication process and the importance of adopting broad criteria to evaluate otherwise late notice of appeals.”
In general, Mailander said, veterans who are represented by qualified veterans service officers at the initial stage of filing a claim are less likely to encounter problems than those who aren’t.
Sherman Gillums Jr., Paralyzed Veterans’ associate executive director of Veterans Benefits, agrees.
“Appeals are often won or lost during the development of the claim,” Gillums said. “If a claimant wants to increase the likelihood of avoiding the appeals process in the first place, he our she should call one of our national service officers as early in the claims process as possible.”
Paralyzed Veterans has about 90 national service officers (NSOs), along with support staff, working in 69 offices throughout the United States and Puerto Rico. The service officers help tens of thousands of veterans file claims, and appeal denials, every year, regardless of membership status. Over the past decade, Paralyzed Veterans has helped veterans identify benefits and complete and file claims resulting in almost $1.5 billion in benefits.
Unfamiliar language in Veterans Benefits Administration forms causes many problems for veterans trying to file claims and appeals without representation.
“It’s a very esoteric system, which is why you don’t see a lot of attorneys practicing in veterans law,” Gillums said. He added that veterans service officers are accredited by VA.
“We achieve that accreditation by completing a program that provides us with the expertise to confront the complexities of the system.”
If a represented veteran is incapacitated from meeting an appeal filing deadline, as was the case in Henderson v. Shinseki, his or her national service officer would file the appeal, Gillums noted.
“It would have been my responsibility as an NSO to discuss such matters with the veteran and, in appropriate cases, file on the veteran’s behalf,” he explained. “If there was an understanding reached with the veteran regarding the preservation of his or her appeal rights, and I’d not heard from the veteran, I would have filed it, and withdrawn it later if needed.”
Mailander said there’s a long way to go before the effects of Henderson v. Shinseki are fully known.
“The message here is to stay tuned,” he said. “While this is a victory for veterans who may ultimately appeal their claims, it’s likely going to take some time for courts to develop the law in this area.”
Patrick McCallister is a reporter in Florida and frequent contributor to PN Magazine.