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IT’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

November 2006

A recently decided case is important both because it impacts the law with regard to equitable tolling (excusing late filing) and with regard to the VA’s duty to assist.

This is the followup of the case (reported in this column in March 2005) of the Vietnam War veteran, with PTSD, who filed his appeal to the Veterans Court 8 days late and claimed that he was prevented from filing a timely notice of appeal because of his mental illness.

In the first Court case the Veterans Court dismissed his appeal and said that mental illness can never be an excuse for filing a late notice of appeal, but the United States Court of Appeals for the Federal Circuit disagreed and sent the case back to the Veteran’s Court to determine whether “equitable tolling” should apply.

Once the case was back at the Veterans Court, the Court denied the veteran’s request that the case be remanded to the VA to allow the VA to assist the veteran in developing the medical evidence concerning his mental disability, finding that the VA does not have a duty to assist the veteran in developing the record for an equitable tolling motion. In addition the Veterans Court determined that the veteran had not met his burden to prove that his illness caused the late filing.

Following the veteran’s 2nd appeal to the United States Court of Appeals for the Federal Circuit, in Barrett v. Nicholson, 05-7113, October 11,2006, known as Barrett IV, the Federal Circuit reiterated that the Veterans Court is wrong and that the VA which “is uniquely qualified to facilitate the diagnosis of troubled claimants should such allegations arise” has the duty to assist the Court to decide jurisdictional issues by providing relevant records and developing new facts.

The Federal Circuit stated that the duty of the government to come forward with evidence in its possession and to develop additional facts uniquely within its competence is consistent with the general rule that where evidence required to prove a fact is particularly within the knowledge and competence of one of the parties, fairness requires that party to bear the burden of coming forward.

In addition the Federal Circuit recognized that the veteran is at an “informational disadvantage” at the jurisdictional stage of his case which justifies requiring the government to provide to the Court and the veteran all records in its possession relevant to the contested jurisdictional issue. Moreover, the VA is in a unique position to know precisely what further medical evidence will clarify the jurisdictional issue and to obtain declarations, doctor’s opinions, new medical examinations and other forms of evidence.

Accordingly, the Federal Circuit directed the VA to provide the medical examination by VA doctors to clarify the nature of the veteran’s mental incapacity during the appeals period, which had been requested by the veteran, in addition to “any other assistance deemed reasonably necessary by the Veterans Court”.

The Federal Circuit further made it clear that this obligation of the VA to assist is not founded on the 38 U.S.C. § 5103A obligation to assist a veteran support his claim. Rather, this obligation is to clarify a contested legal issue and is part of the government’s assistance during the judicial review process.

We now have a clear statement that even though Court proceedings are adversarial the VA has a duty to assist veterans even during Court proceedings. This may mean that the VA must get evidence of periods of service which are absent from the file instead of merely saying that the veteran failed to prove service during a crucial period.