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Maine Veterans’ Disability Benefits Lawyer Says Fairness Is At Issue in U.S. Supreme Court Case

December 25, 2010

A case before the nation’s highest court involving a mentally ill veteran whose disability kept him from meeting a filing deadline raises questions of substantive due process and essential fairness, says Maine veterans’ disability benefits attorney Francis M. Jackson.

South Portland, Maine (PRWEB) December 23, 2010

Lawyers who assist physically and mentally disabled veterans in their efforts to secure disability benefits are closely watching a case before the U.S. Supreme Court, says Maine veterans’ disability benefits lawyer Francis M. Jackson.

The case, Henderson v. Shinseki (No. 09-1036), involves a veteran’s argument that his mental disability prevented him from meeting the deadline to appeal the denial of his veterans’ benefits claim. The high court heard oral arguments in the case on December 9.

“This case is significant because it raises issues of substantive due process and essential fairness,” says Jackson, a partner in the South Portland, Maine disability benefits law firm of Jackson & MacNichol who has represented disabled veterans in administrative hearings and in appeals before the Court of Appeals for Veterans’ Claims and the Court of Appeals for the Federal Circuit.

“In a case such as this, where a veteran is prevented from meeting a deadline by a service-connected disability, it is unfair to allow this circumstance to prevent them from appealing,” says Jackson, who is not representing a party in the case.

Veterans’ disability compensation is a tax-free financial benefit paid to a veteran who has suffered injuries or diseases that are connected to the veteran’s active-duty service or which have been made worse by the veteran’s active military service.

These service-connected disabilities can include post-traumatic stress disorder, traumatic brain injuries, injuries from exposure to chemicals such as Agent Orange, nerve gases, mustard gas, toxic chemicals and herbicides, and other disabling injuries and illnesses.

The veteran in this case, David Henderson, developed paranoid schizophrenia during his service in the Korean War. He was discharged due to this condition.

He applied for home care through the Veterans Administration, but he was turned down. The VA gave him 120 days to file notice of his intent to appeal ““ the time limit under Section 7266(a) of the Veterans Judicial Review Act ““ but his mental health prevented him from making this deadline, his lawyer has argued. He was 15 days late in filing.

Henderson requested that the Veterans Court “equitably toll” the statute of limitations, since he was unable to file notice during the appeals period due to the service-connected disability he was seeking assistance for ““ his mental illness.

Mr. Henderson’s attorney (now representing Mr. Henderson’s widow) has argued that the law was written so that a judge could make an exception that would extend the 120-day time limit in the interests of fairness. He has contended that this was Congress’s intention since they meant to create a pro-veteran process.

However, Eric K. Shinseki, Secretary of Veterans Affairs, has argued that the 120-day time limitation was created by Congress, and any change in the process must come from Congress.

The VA has contended that if the 120-day deadline is not jurisdictional, then the Court of Appeals for Veterans’ Claims would not function as a traditional appeals court, which is what Congress intended it to be. The VA also has argued that veterans have other avenues, like reopening with new and material evidence or clear and unmistakable error (CUE) claims.

Jackson says he agrees with an amicus brief filed by the Federal Circuit Bar Association, which argues that Congress intended to err on the side of over-rewarding rather than under-rewarding veterans.

“The purpose of the system, which is caring for disabled veterans, is stymied by a statute of limitations that effectively prevents veterans from accessing the benefits they are entitled to receive,” Jackson says.

About Jackson & MacNichol, Attorneys at Law

The law firm of Jackson & MacNichol, based in South Portland, Maine, handles veterans’ benefits claims from across the nation. Additionally, the firm offers experienced, knowledgeable, and caring representation for Social Security disability claimants in all parts of Maine, including Portland, South Portland, Auburn, Augusta, Bangor, Biddeford, Saco, Lewiston, Rockland, Waterville and throughout New England. The firm also represents Maine accident and injury victims. For more information, contact the firm at (800) 524-3339 or through its online contact form.

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For the original version on PRWeb visit: http://www.prweb.com/releases/prwebmaine-veterans-disability/veterans-claims-lawyer/prweb4920874.htm


Source: prweb



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