Good News for Disabled Vets

The court’s favorable ruling in this case expands significantly the government’s “duty to assist” mentally ill veterans.

I posted previously about the veterans’ case, “Disabled Veterans,” argued last spring by Mr. James R. Barney, of Finnegan Henderson, Washington DC, BARRETT v. DVA. According to Mr. Barney, as of 11 October 2006, the case has been decided and it is a very good result for the veteran. Perhaps it is not such a good result for the American taxpayers, and for that they can thank former President George H.W. Bush.

The United States Court of Appeals for the Federal Circuit has reversed and remanded the Veterans Court’s decision in Barrett v. DVA, which was handled pro bono by the Finnegan Henderson Law Firm at oral argument. This is an important veterans decision that significantly and positively affects the rights of veterans who are appealing adverse decisions from the Board of Veterans Appeals. In short, Mr. Barrett was seeking to establish equitable tolling based on mental incapacity in order to preserve his appeal, which had been dismissed for failure to timely file his NOA. He asked the Veterans Administration to provide a psychiatric examination to help him establish the strict criteria for proving equitable tolling. The VA refused to provide an examination, arguing that it had no duty to assist the veteran once his case was on appeal. The veteran appealed that decision to the United States Court of Appeals for the Federal Circuit.

The ruling of the U.S. Court of Appeals for the Federal Circuit, authored by Judge MAYER, is quite broad and will likely have an immediate and beneficial impact on mentally ill veterans, of whom there are many, who find themselves caught between the non-adversarial and adversarial systems of the appeals process. The following quote sums up the ruling:

“Here Barrett specifically requested a medical examination by DVA doctors to clarify the nature of his mental incapacity during the appeals period. Because such an exam will plainly assist in clarifying his entitlement to equitable tolling, is consistent with the kinds of evidence uniquely within the knowledge and competence of the government . . ., and ensure the reality and appearance of systemic fairness, the Secretary shall provide Barrett with his requested medical examination, as well as any other assistance deemed reasonably necessary by the Veterans Court.”

That is a good result for veterans.


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