David Henderson served on active military duty from 1950 to 1952. He was discharged in 1952 after being diagnosed with paranoid schizophrenia, for which he has established service connection. In August of 2001, he filed a claim for monthly compensation with the Department of Veterans Affairs Regional Office, based on his need for in-home care. The regional office denied the claim, and he appealed to the Board. The appeal was denied on August 30, 2004. On January 12, 2005, Henderson filed a notice of appeal with the Veterans Court, fifteen days after the expiration of the 120-day appeal period.
The appeal has been dismissed on the basis of the missed deadline, but the US Supreme Court held that the deadline for filing a notice of appeal with the Veterans Court can be modified for good cause:
“…After the Department of Veterans Affairs denied David Henderson’s claim for supplemental disability benefits, he filed a notice of appeal in the Veterans Court, missing the 120-day filing deadline by 15 days. Henderson argued that his failure to timely file should be excused under equitable tolling principles. While his appeal was pending, this Court decided Bowles v. Russell, 551 U. S. 205, which held that the statutory limitation on the length of an extension of time to file a notice of appeal in an ordinary civil case is “jurisdictional,” so that a party’s failure to file within that period could not be excused. The Veterans Court concluded that Bowles compelled jurisdictional treatment of the 120-day deadline and dismissed Henderson’s untimely appeal. The Federal Circuit affirmed…
“…We hold that the deadline for filing a notice of appeal with the Veterans Court does not have jurisdictional attributes. The 120-day limit is nevertheless an important procedural rule. Whether this case falls within any exception to the rule is a question to be considered on remand. The judgment of the United States Court of Appeals for the Federal Circuit is reversed, and the case is remanded.
“The parties have not asked us to address whether the 120-day deadline in 38 U. S. C. §7266(a) is subject to equitable tolling, nor has the Government disputed that the deadline is subject to equitable tolling if it is not jurisdictional. Accordingly, we express no view on this question….”
Jimmie L. Foster, National Commander of the American Legion said:
“The court’s ruling will certainly make a difference in the outcomes of many veterans’ appeals. Our veterans sacrifice so very much serving in combat thousands of miles from home. They deserve every opportunity and consideration in applying for the benefits they earned through their service. The American Legion is proud to have been a friend of the court in this litigation.”