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If I Could Turn Back Time: Making the Case for More Retroactive VA Disability Benefits

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Arellano v. McDonough,

No. 21-432,

1 F.4th 1059 (Fed. Cir. 2021),

cert. granted, 142 S. Ct. 1106 (2022).

Oral argument scheduled for October 4, 2022.

Issues: (1) Whether the rebuttable presumption that plaintiffs can bring a lawsuit against the government even after the expiration of the statute of limitations under certain circumstances applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive veterans disability benefits; (2) if it applies, whether the government has successfully rebutted the presumption that the deadline can be flexible by showing Congress did not intend to allow for any flexibility; and (3) if the government has not rebutted the presumption, whether this case should be sent back to the U.S. Veterans Administration (“VA”) so it can consider whether Arellano’s particular circumstances justify an extension of the deadline.

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Each year, millions of veterans experience the severe, lasting impacts of service-related injuries. Since 1990, the number of veterans with a service-related disability has increased by 117%. In recognition of their sacrifice, the VA makes disability benefits available to veterans with a service-related disability. However, many disabled veterans struggle to navigate the complex, time-consuming process of applying for these benefits.

Adolfo Arellano served in the United States Navy honorably and was discharged in 1981. Arellano v. McDonough, 1 F.4th 1059, 1063 (Fed. Cir. 2021) (Chen, J., concurring). In the year prior to leaving the military, Arellano developed schizoaffective disorder bipolar type with PTSD. Id. However, Arellano did not apply for VA disability benefits until June 3, 2011, nearly 30 years after he left the military. Id. When he applied, the VA gave him a 100% disability rating. Id.

Veterans who apply for VA disability benefits within one year of discharge can receive benefits retroactively to their date of discharge. 38 U.S.C. § 5110(b)(1). However, the benefits of veterans who do not file an application within that first year are effective no earlier than the day the VA received the application. 38 U.S.C. § 5110(a)(1). In 2017, the VA concluded that Arellano was eligible for VA disability benefits but denied him retroactive benefits because he had not applied within one year of discharge. Arellano v. Wilkie, No. 18-3908, 2019 WL 3294899, at *1 (Vet. App. July 23, 2019), aff’d sub nom., Arellano v. McDonough, 1 F.4th 1059 (Fed. Cir. 2021). The Board of Veterans’ Appeals (the “Board”) rejected Arellano’s appeal for retroactive benefits. Id.

Arellano appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (the “Court of Appeals”). Id. In his appeal, Arellano argued that the one-year deadline in Section 5110 should be subject to “equitable tolling,” which would allow veterans who file after the deadline to receive retroactive benefits if they could show an extraordinary circumstance delayed their application. Arellano v. Wilkie, 2019 WL 3294899, at *1; Arellano, 1 F.4th at 1062. Arellano contends that — like many veterans with significant mental health conditions — his schizoaffective disorder and PTSD prevented him from applying for benefits for years after he left the military. Arellano v. Wilkie, 2019 WL 3294899, at *2.

In 2019, the Court of Appeals affirmed the Board’s decision denying Arellano retroactive benefits. Id. at *3. The court concluded that it was bound by a Federal Circuit opinion holding that “[p]rinciples of equitable tolling . . . are not applicable to the time period in § 5110(b)(1).” Id. at *2 (omission in original) (quoting Andrews v. Principi, 351 F.3d 1134, 1137 (Fed. Cir. 2003)). Though the court felt that, absent precedent, Arellano’s arguments “would be worth exploring[,]” it held that “[a]s the law stands today . . . section 5110 is not subject to equitable tolling.” Id.

Arellano appealed this decision to the Federal Circuit, which in 2021 unanimously concluded that equitable tolling of the Section 5110 deadline was not available in Arellano’s case. Arellano, 1 F.4th at 1060. However, the court was deeply divided “as to the reasons for its decision.” Id. In a concurring opinion authored by Judge Chen, six judges found that equitable tolling of the type Arellano sought only applied to statute of limitations deadlines. Id. at 1065 (Chen, J., concurring). On the other hand, in a separate concurring opinion authored by Judge Dyk, six other judges wrote that, while equitable tolling should be available for veterans under Section 5110, Arellano’s specific circumstances did not warrant equitable tolling of the deadline in his case. Id. at 1086 (Dyk, J., concurring).

The Supreme Court will now consider whether the equitable tolling Arellano seeks is available. AARP and AARP Foundation filed an amicus brief in support of Arellano, arguing that equitable tolling should extend to veterans applying for disability benefits.

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In 2020, the VA received more than a million applications for disability benefits and spent around $88.5 billion providing benefits to injured veterans. When soldiers agree to risk life and limb to serve their country, they do so with the understanding that the federal government will support them if they have lasting injuries. The VA disability benefits program is a crucial lifeline for these veterans. However, some veterans with disabilities face a jarring catch-22: the very disabilities that qualify them for benefits also prevent them from realizing they are entitled to government assistance and successfully navigating the burdensome application process within the one-year deadline for retroactive benefits. By holding that equitable tolling is available under Section 5110, the Supreme Court could ensure that veterans are given a fair shot at obtaining the benefits they have earned.


Sébastien Monzón Rueda


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AARP Foundation Supreme Court Preview

The Supreme Court often hears cases affecting the lives of people over 50. Read our review of key cases coming before the Court this year and likely to come in the future.