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AARP Asks the U.S. Supreme Court to Permit Korean War Veterans' Delayed Challenges of Denial Benefits

AARP's brief in Henderson v. Shinseki asks the U.S. Supreme Court to overturn a ruling that imposes rigid, inflexible rules that harm disabled veterans seeking to appeal the denial of their benefits. The issue is of particular importance to older veterans, since more than half of the veterans with service-related disabilities are older than 55.

The Situation

Henderson was on active military duty during the Korean War and discharged in 1952 on the basis of a service-connected mental disability. In 2004, he requested additional benefits to obtain in-home care and was denied. He appealed, but missed the 120 day appeal by 15 days.

Henderson argues that his failure to make a timely appeal was directly due to his service-related mental disability. He asked the court to apply the doctrine of "equitable tolling," a principal adopted by other circuit courts in a variety of contexts. The U.S. Court of Appeals for the Federal Circuit declined to do so, and Henderson appealed to the U.S. Supreme Court.

AARP's Brief

AARP joined the Paralyzed Veterans of America in filing a "friend of the court" brief on behalf of Henderson. The brief notes that more than half of the veterans who file claims with the Veterans Court are not represented by attorneys. Procedural rules and timelines — often difficult for even trained attorneys to navigate — are all the more difficult for those veterans without counsel and particularly for those with mental disabilities. The brief further notes that today there are approximately 17 million veterans who are 50 and older; it also points out that the number of veterans 85 and older is projected to increase 32 percent by 2018.

As one federal court found, "It would be both ironic and inhumane to rigidly implement [the law] because the condition preventing a veteran from timely filing is often the same illness for which compensation is sought." Noting that many veterans with severe disabilities could be hospitalized and rehabilitating for well more than 120 days without regular access to mail, AARP's brief notes that other courts have specifically found the 120-day period for an appeal to be short, especially considering that most claimants are unrepresented.

AARP's brief also points out that the lower court ruling has already resulted in the rejection of other veterans attempts to appeal the denial of benefits. The brief notes: "It is inconceivable that Congress would create a system in which disabled veterans could seek redress against VA when their benefits claims are denied, and then punish those same veterans for being disabled and unable to protect their rights."

What's at Stake

More than 3 million veterans receive disability compensation, and the Veterans Affairs' own Strategic Plan recognizes that increasing disability levels, the changing nature of service-related injuries and disabilities, and an aging veteran population are going to present unprecedented challenges.

The problem is particularly acute for older veterans, who suffer not only the lingering effects of lifelong service-related disabilities, but recurrences of some types of mental disabilities (post-traumatic stress syndrome, for example) and later-in-life complications arising from traumatic brain injury. Older veterans are also particularly susceptible to depression and similar conditions — a recent study of nearly 300,000 veterans 55 and older revealed that older vets with depression are more likely to develop dementia.

Contact Person: Barbara Jones