IT’S THE LAW - March 2006
Tuesday, March 14th, 2006IT’S THE LAW
by Richard Cohen, Esq.
©2006 Richard Cohen
Cohen, Abate & Cohen, L.C.
Attorneys at Law
P.O. Box 846
Morgantown, WV 26507-0846
(304)-292-1911
wvajustice@netscape.net
wvajustice.com
March 2006
In past columns I discussed late filings and the law on extending the time to file using “equitable tolling”
Some recent cases demonstrate traps for the unwary veteran.
Last March I discussed the case of Mr. McPhail, reported at 19 Vet. App. 30 (2005) ,who was unsuccessful in the Veterans’ Court in convincing the Court that equitable tolling should apply and should result in back benefits for his mental disorder to 1985 when his wife first filed a claim for him which was denied. He argued that he should be excused from not challenging the denial of his service connection in 1986 because of his mental impairment. After the Veterans’ Court rejected his arguments he appealed to the United States Court of Appeals for the Federal Circuit.
On February 27, 2006 the Federal Circuit agreed and refused to consider Mr. McPhail’s equitable tolling argument, observing that the veteran had never actually filed a notice of disagreement (NOD) objecting to the 1986 , denial of this claim. The Federal Circuit also said it was now too late for the veteran to claim that statements which he and his representative made should be considered a NOD.
The lesson to be learned is that if you miss a deadline you can’t count on equitable tolling to save you especially if you never file. You must have actually filed in order to claim the benefits of equitable tolling.
In addition, in the recent case of AF v. Nicholson, decided February 8, 2006 the Federal Circuit agreed with the Veteran’s Court that equitable tolling cannot be used to excuse the failure to file a claim. AF argued that he was misled by the VA into not filing this PTSD claim based on an assault during service back in 1971 and 1981 when he filed his claim for a heart condition. His PTSD claim , which was filed in 1992 was finally granted in 2001. The Federal Circuit relied upon its earlier decision in McKay V. Brown 106 F,3d1577, 1579 (Fed. Cir. 1997), in which it denied the theory of equitable estoppel in a case where a veteran waited to file an application for benefits because in 1986, when he developed cancer, the VA’s position was that there was no connection between the type of soft tissue cancer he had and Agent Orange. Mr. McCay waited to file his claim from 1986 when his cancer was discovered until 1990 when the VA admitted that there was a connection between Agent Orange and soft tissue sarcoma. His request for an effective date back to 1986 was denied because the Court decided that equitable estoppel does not excuse the late filing of a claim.
The lesson to be learned is that if you have a condition which you believe is related to service, whether it is because of exposure to radiation or radio waves during WWII or Korea, Agent Orange during the Vietnam War, or to depleted uranium and other chemicals during the Gulf and Iraq Wars, do not wait for the VA to recognize a connection. Veterans should file immediately to preserve the filing date , and then should obtain medical opinions , to attempt to connect the exposure to the disease which veteran has.
In order to get a medical opinion that a veteran’s disability is related to exposure, injury or illness veterans should remember that the law now requires treating VA doctors to provide opinions whether the disability is likely related to what happened in service. In fact, one of the judges of the Veteran’s Court recently reminded the VA that Va doctors are not free to refuse to assist veterans, see Crutcher v. Nicholson, decided January 24,2006.