In a decision that impacts thousands of veterans, the U.S. Court of Appeals for Veterans Claims has ruled that Lieutenant Colonel (LTC) Wilson J. Ausmer, Jr., a highly decorated veteran, should be able to file an appeal of his disability claim even though he had missed the 120-day deadline to do so.
The case was argued in October 2013 at Harvard Law School before the U.S. Court of Appeals for Veterans Claims as part of the Veterans Legal Clinic of the Legal Services Center of Harvard Law School, which is administered through a partnership of Harvard, the law firm of Chisholm Chisholm & Kilpatrick and DAV (Disabled American Veterans).
The precedent-setting decision paid particular note to the difficulties faced by those who served multiple deployments. LTC Ausmer was serving in Afghanistan on his second combat deployment in the Middle East when his disability claim was denied. The Court ruled the deadline should have been extended.
In its decision, the Court cited “the difficulties faced by service members returned from deployment to a combat zone” and noted that since “…the evidence establishes that the appellant had difficulty readjusting to civilian life, the Court finds that the appellant’s deployment and military service materially affected his ability to protect his legal rights under section 524.”
The Court stayed the appeal period for 90 days after LTC Ausmer’s military service was terminated so that his case can proceed.
The Veterans Court also decided that the Servicemembers Civil Relief Act (“SCRA”) applies to proceedings before the Court. The Court applied SCRA and first found that the 120-day period did not begin to run until LTC Ausmer was discharged from active duty.
CCK’s and the Clinic’s interpretation of the Court’s ruling is that it effectively allows recently discharged veterans whose ability to file an appeal is “materially affected” by their service a full 210 days from the date of discharge to appeal adverse BVA decisions. This is a huge win for veterans’ rights, as the Court’s holding would logically extend to appeals filed at the VA as well. In Fiscal Year 2013, over a 100,000 appeals were filed at the VA.