A Shocking 15-Year Wait: A Veteran's Struggle for Justice
Most Veterans are no strangers to the hurry-up-and-wait nature of the military, and the VA benefits appeals process is no different. Veterans are given strict deadlines for submitting claims, filing disagreements, appealing decisions, and more. However, the VA itself is on a much more lenient schedule. It’s common for appeals to take well over a year to be decided. During that time, a Veterans’ quality of life could be significantly diminished.
In the extreme case we’ll explore today, one Veteran had to wait a shocking 15 years for a response from the VA. The optics of the case don’t look great for the VA, according to Judge Toth of the United States Court of Appeals for Veterans Claims.
“You have a Veteran who asks for a one-week extension of time, and then the [VA] takes 15 years to basically adjudicate that and says, ‘no, he can’t have a week, but it takes us 15 years,’” Judge Toth said during oral arguments.
To learn why this happened, how Michael D.J. Eisenberg fought for the Veteran’s rights at the United States Court of Appeals for Veterans Claims (USCAVC), and steps you can take to avoid this happening to you, keep reading.
The Fight for Justice and Equitable Tolling
Gary Ferko, an Air Force Veteran, was denied benefits and appealed the Board of Veterans’ Appeals’ rating decision. Like all Veterans, Mr. Ferko had a year to file his Notice of Disagreement (NOD). However, Mr. Ferko had undergone a heart surgery, and was recovering under the fog of medications and pain.
Michael D.J. Eisenberg, counsel for Mr. Ferko, argued that if a Veteran has a mental or physical condition that prevents them from participating in their appeal—such as recovering from a heart operation—they should be given extra time to file an appeal or have the stop clock paused or ‘tolled.’ This is broadly referred to as equitable tolling.
The VA contends that not only did Mr. Ferko fail to meet his deadline for appealing, but he also failed to demonstrate due diligence during his extraordinary circumstances, as is required for equitable tolling. However, as Mr. Eisenberg argued, Mr. Ferko couldn’t have reasonably been expected to exercise his diligence given the circumstances of his health and recovery.
Now, the USCAVC seeks to determine whether equitable tolling applies in Mr. Ferko’s instance and whether VA Secretary Denis McDonough can provide enough reason to deny the presumption of equitable tolling in cases such as Mr. Ferko’s.
“It’s the VA and the government’s responsibility to ensure the welfare of Veterans who’ve served our country, but too often, they fail to perform these duties. I’m proud to have the opportunity to represent Veterans like Mr. Ferko who deserve someone to serve them as faithfully as they served our country.” - Michael D.J. Eisenberg.
How to File Your NOD For a Timely Review
Under the Appeals Modernization Act, an NOD is typically referred to as a Board Appeal. When you file a Board Appeal, you can have your appeal reviewed in one of three ways:
In a Direct Review, where you don’t submit additional evidence and your appeal is directly reviewed by a Veterans Law Judge (VLJ).
With Evidence Submission, where you submit additional evidence to the board to be considered with your appeal.
With a Hearing Request, where you have a hearing with a Veterans Law Judge and can then submit new evidence for consideration.
Properly filing a Notice of Disagreement is critical for your appeal being processed in a timely manner. When you appeal a denied claim, you need to file your appeal within one year after your decision letter is mailed.
Although you have a year to file your appeal, it’s best not to dawdle. You never know what will come up that could derail your plans. Additionally, the earlier you start, the more time you’ll have to consult with an attorney like Mr. Eisenberg, who can consult you on gathering evidence like buddy letters and a medical nexus letter.
Do You Need to Appeal a Denied VA Disability Claim?
The best way to ensure that your appeal has a chance of success is to have help from the beginning. An attorney experienced with Veterans’ benefits matters can help you plan the most effective appeal. This includes determining the best route for your appeal, whether that be through a Board Appeal, a Supplemental Claim, or a Higher-Level Review. Additionally, a Veterans’ lawyer can help you determine what types of evidence you need and assist the process of gathering that evidence.
Michael D.J. Eisenberg is a Veterans’ benefits attorney with 16 years of experience. If you need to appeal a claim, Mr. Eisenberg may be able to help. To schedule an initial consultation, contact the Law Office of Michael D.J. Eisenberg today.
Note: Consultations for Veterans’ Benefits Appeals Matters are free; however, consultations for Military Records Issues and Medical/Physical Evaluation Boards are paid.