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Justices asked to give disabled veterans more time to seek retroactive benefits

A Navy veteran argues he should have been given more than a year to apply for benefits dating back to his discharge date after he left the military.

WASHINGTON (CN) — On the Supreme Court's second day back in session Tuesday, the justices heard arguments in a case that could potentially open up new benefit opportunities for U.S. veterans who became disabled as a result of their service.

On July 29, 1980, in the midst of the Iranian hostage crisis, Adolfo Arellano was working on the flight deck of the Navy's USS Midway aircraft carrier in the Persian Gulf when a Panamanian freighter known as the Cactus collided into the American warship. Arellano was almost crushed and swept overboard, while several of his shipmates were injured or killed.

Thirty years after being honorably discharged from the Navy in October 1981, Arellano was deemed fully disabled by the Department of Veterans Affairs. He had been suffering from symptoms of schizoaffective disorder and bipolar disorder with post-traumatic stress disorder, which the department determined was linked to service-related trauma.

Because service-disabled veterans only have a one-year deadline for applying to receive disability benefits retroactive to their discharge date after leaving the service, Arellano was only awarded compensation from the time of his effective disability date, which was when he filed the application in 2011.

Arellano claims the one-year window for veterans to file such claims should be extended, or tolled, in his case because his disability prevented him from filing his claim earlier. He also argues the amount of his benefits should be based on when his disability occurred.

"Indeed, the sad irony is that the very illnesses the veterans’ benefits system is designed to address, such as PTSD, are often the ones that cause veterans to miss the one-year deadline...forfeiting retroactive benefits to which they would otherwise be entitled," according to Arellano's brief to the Supreme Court, written by attorney James R. Barney of Finnegan Henderson.

The Board of Veterans' Appeals rejected Arellano's argument per Andrews v. Principi, a Federal Circuit decision that the board said categorically barred equitable tolling from the one-year period in the relevant statute.

However, Arellano argues the retroactive benefits deadline is similar to other claim processing rules that have been found amenable to equitable tolling in claims against the government and in private litigation, and should be treated as a statute of limitations.

His argument revolves around Irwin v. Department of Veterans Affairs, in which Supreme Court said that statutes of limitations in actions against the government are subject to the same rebuttable presumption of equitable tolling applicable to suits against private defendants.

Sitting en banc, the Federal Circuit was evenly divided on the complex issue in Arellano's case and their per curiam decision left in place the Andrews precedent.

With the case now in the Supreme Court's hands, newcomer Justice Ketanji Brown Jackson told Arellano's counsel Tuesday that she doesn't understand how the deadline at issue operates like a statute of limitation.

According to Veteran Affairs Secretary Dean McDonough, there is no statue of limitations.

"A veteran who files an application for disability benefits years or even (like petitioner) decades after discharge is entitled to benefits if his disability is shown to be service-connected. At no point would the claim for compensation expire or become time-barred," Solicitor General Elizabeth Prelogar wrote in her brief for McDonough. "Instead, the one-year grace period is simply one factor the agency (or a court) must consider in determining the amount of compensation to which a veteran is entitled." (Parentheses in original.)

Justice Brett Kavanaugh expressed concern that there could be "immense practical problems," as the Department of Veteran Affairs argues, if the court rules in Arellano's favor.

"Most deadlines in civil litigation are tollable. And I'm not aware that there has been a floodgate problem in the nation's courts with people breaking down the doors seeking equitable tolling," said Burney, representing Arellano.

When questioned by the justices on how this would work if they ruled in his client's favor, Burney replied, "This court has a well-developed body of law that the veterans court and the VA can draw upon to determine when, given a certain set of circumstances, should equitable tolling apply. And this court has said that it should be applied sparingly. And we have no reason to believe that the veterans court won't follow that guidance."

Multiple veterans' organizations as well as the Federal Circuit Bar Association filed amicus briefts in support of Arellano's position. One was filed by two Vietnam-era Army veterans who were subjected to "cruel, inhumane, and unethical chemical testing" at Edgewood Arsenal in Maryland and were prevented from applying for disability benefits until 2006 when the government lifted its threat of criminal prosecution against them if they spoke of what happened.

"Would that be a circumstance in which there would be equitable tolling until the disclosure is made?" Justice Samuel Alito asked counsel for the Department of Veterans Affairs.

Sopan Joshi, assistant to the solicitor general, replied that is a special case and should be a question for Congress to solve.

"I'm not sort of, you know, sliding into the pro-veteran canons, but does it make any sense as an abstract matter to say the one area where we're not going to waive it, where we're going to insist on strict adherence, is service-connected disabilities?" Chief Justice John Roberts said.

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