Paralyzed Veterans of America's Legal Eagles
Veterans judicial review and case law is, in many respects, still in its youth. The Veterans Legal Department of Paralyzed Veterans of America (Paralyzed Veterans) has been there from the start and has been involved in many important cases that have benefited individual appellants and the veterans community at large.
“I think one of our primary accomplishments is continuing to be one of the leading organization appearing before the U. S. Court of Appeals for Veterans Claims and other federal courts,” said Bill Mailander, general counsel.
The Court of Veterans Appeals was created on November 18, 1988. Before it was established by the Veterans Judicial Review Act of 1988, the Department of Veterans Affairs’ (VA) Board of Veterans’ Appeals was the final arbiter of veterans’ claims. Under that isolated system, veterans usually could not get legal representation, and there was no judicial recourse for those denied benefits.
Without a doubt, judicial review has had a positive effect on the system, with many veterans receiving benefits they otherwise would not have. Indeed, veterans can and have had their cases heard by the highest court in the land, the U. S. Supreme Court. Earlier this year that court decided an important case to veterans: Henderson v. Shinskei, ruling that a notice of appeal in the veterans law context is a claims-processing rule and not jurisdictional. This means that an untimely appeal filed by a veteran may still receive judicial review under some circumstances.
Paralyzed Veterans, joined by AARP, was an amici in the case and brought issues important to disabled and older veterans to the Supreme Court’s attention.
“We at Paralyzed Veterans of America are a little different from other veterans service organizations,” Mailander said. “We understand the significant impact that courts can have in the area of veterans benefits and, consequently, have always employed experienced lawyers to litigate in this area of the law.”
In 2010, Paralyzed Veterans felt that new VA regulations intended to ease the burden of proof on noncombat veterans who have post traumatic stress disorder were too narrow in describing what medical evidence would prove a claim. The legal team at Paralyzed Veterans challenged the new rules. This case is still pending before the court.
“Through our rulemaking litigation and representation of hundreds of individuals, we have, over the years, established various precedents that benefit veterans as a whole,” Mailander said. “We’ve also had several cases where people were able to obtain significant retroactive benefits.”
Recently, for example, in Hornick v. Shinseki, a case involving a matter of statutory interpretation, the Court of Appeals for Veterans Claims sided with Hornick, who had been injured in a VA facility and granted benefits under 38 U.S.C. 1151. More than a decade later, VA took away those benefits. Paralyzed Veterans’ deputy general counsel, Michael Horan, represented Hornick and argued there was no legal basis for this action, noting that benefits awarded under 1151 for more than 10 years are entitled to the same protected status as any other veteran receiving service-connected benefits.
While VA appealed to the U. S. Court of Appeals for the Federal Circuit, it later decided to withdraw the appeal, which left the favorable decision of the Veterans Court in place for Hornick and other similarly situated veterans.
Paralyzed Veterans’ lawyers are also involved in many educational initiatives and are passing on their expertise to a growing number of lawyers wanting to assist veterans. Recently, the legal team helped produce a free veterans law training DVD, A Primer on Veterans Administrative Law, Practice and Procedure, which is being distributed by the American Bar Assocation.
Paralyzed Veterans’ associate general counsel, Linda Blauhut, noted that veterans law is in many respects unlike others, and law schools generally don’t teach it extensively. Nevertheless, she said many lawyers want to get into it and need the training.
“We produced this DVD so attorneys could go to VA and say, ‘Hey, I’m ready, I want to represent veterans,’ and VA could say, ‘Have at it.’ ”
Patrick McCallister is a reporter in Florida and frequent contributor to PN Magazine.