Henderson V. Shinseki And Cavc

[andyli32]

First, hello to TBird, Pete, et al. I knew you all from the old board before the late, great Alex Humphrey passed away. Thanks to you all I went from 10% to IU.

In the context of the recent Henderson v. Shinseki.

I missed a CAVA deadline, actually a "stay", to attain an attorney, in my 2009 appeal before the CAVA.

The CAVA letter, an "ORDER", also stated that I had 14 days to dispute this "ORDER" (RECORD BEFORE THE AGENCY (RBA)), I also missed that deadline.

In a nutshell, my appeal was about extra-schedular consideration for my depression, going back to an earlier effective date.

I fully understand the complexities and subjectivity of extra-schedular consideration by the VA.

My point before the CAVA was that there was too much subjectivity in granting extra-schedular consideration by the VA (yeah, I know thats the point "where the veterans disabilities are not addressed fully by the schedules") and that I should be granted an earlier effective date or at least have it explained to me, specifially in detail, why I didn't meet the criteria for extra-schedular consideration.

I failed to meet the above deadlines due to my service-connected depression. My question is does the recent Henderson v. Shinseki apply to missed deadlines only set by the VA or does this decision also apply to CAVA deadlines?

I've read as much as I could on this recent decision but I am still at a loss. Thanks to all for you help.

Andy

[Berta]

I thought Henderson was solely in regard to CAVC deadlines but I could be wrong.

This link is an assessment by attorneys of the Henderson decision. The attorneys give access to their email addys at the left of the narrative.Maybe they could verify if Henderson is applicable to your case:

http://lawprofessors.typepad.com/civpro/2011/03/scotus-decision-in-henderson-v-shinseki.html

[deltaj]

First, hello to TBird, Pete, et al. I knew you all from the old board before the late, great Alex Humphrey passed away. Thanks to you all I went from 10% to IU.

In the context of the recent Henderson v. Shinseki.

I missed a CAVA deadline, actually a "stay", to attain an attorney, in my 2009 appeal before the CAVA.

The CAVA letter, an "ORDER", also stated that I had 14 days to dispute this "ORDER" (RECORD BEFORE THE AGENCY (RBA)), I also missed that deadline.

In a nutshell, my appeal was about extra-schedular consideration for my depression, going back to an earlier effective date.

I fully understand the complexities and subjectivity of extra-schedular consideration by the VA.

My point before the CAVA was that there was too much subjectivity in granting extra-schedular consideration by the VA (yeah, I know thats the point "where the veterans disabilities are not addressed fully by the schedules") and that I should be granted an earlier effective date or at least have it explained to me, specifially in detail, why I didn't meet the criteria for extra-schedular consideration.

I failed to meet the above deadlines due to my service-connected depression. My question is does the recent Henderson v. Shinseki apply to missed deadlines only set by the VA or does this decision also apply to CAVA deadlines?

I've read as much as I could on this recent decision but I am still at a loss. Thanks to all for you help.

Andy

I think the case you are talking about was recently successfully appealed to the U.S. Supreme Court. I think I have previously found a link to it on the upper top right of the U.S. Supreme Court website.

[broncovet]

I agree with Delta

According to this law firms summary, the Supreme Court decision would appear to allow you to ask for an extenstion of time, and not automatically be denied:

http://www.faegre.com/12917

[Pete53]

Hi Andy long time.

As far as being one day late the VA has been more or less ordered by court to look at the circumstances and to be more lenient. You know the drill you need to look for info to help you.

Good luck

[Berta]

Yes. glad you are back here Andy

Have you accessed the discussions here under earch for Henderson and at VA WAtchdogToday and I think Mil.com discussed this iportant decision:

Was your tenative CAVC appeal for an EED or for 100% status to possibly allow SMC consideration?

[deltaj]

Andy, Please read the Supreme Court's decision in Henderson v. Shinseki. Please keep in mind that people who have depression are often diagnosed with other mental illnesses while in service and the service department makes line of duty determinations while the person is in service. When reviewing your V.A. claims folder and service records look for instances of where V.A. failed to notify you at the latest address of record in accordance with 38 CFR 3.1 and 38 CFR 3.103 of a decision. Also look for instances in which V.A. received new and material evidence during an appeal period of a decision pursuant to 38 CFR 3.400 (q). Read V.A. General Counsel Precedent Opinion 12-98 about obtaining earlier effective dates. Also look for instances where V.A. failed to meet statutorily mandated requirements.