Supreme Court Case – Retroactive VA Disability Benefits

Arellano vs. McDonough,

No. 21-432,

1 F.4th 1059 (federal circ. 2021),

cert. granted, 142 S.Ct. 1106 (2022).

Pleading scheduled for October 4, 2022.

Problems: (1) Does the rebuttable presumption that plaintiffs can sue the government even after the statute of limitations has expired in certain circumstances apply to the statutory one-year limitation period in 38 USC § 5110(b)(1) to apply for retroactive veterans’ disability benefits; (2) if so, whether the government has successfully rebutted the presumption that the deadline can be flexible by showing that Congress did not intend to allow any flexibility; and (3) if the government has not rebutted the presumption, whether this case should be referred to the US Veterans Administration (“VA”) so that it can consider whether Arellano’s particular circumstances warrant an extension of time.

Every year, millions of veterans go through the severe and lasting impacts service-related injuries. Since 1990, the number of veterans with a service-related disability has increased by 117%. In recognition of their sacrifice, the VA makes disability benefits available to veterans with a service-related disability. However, many disabled veterans find it difficult to navigate the complex, long application process for these benefits.

Adolfo Arellano served honorably in the United States Navy and was discharged in 1981. Arellano vs. McDonough1 F.4th 1059, 1063 (Fed. Cir. 2021) (Chen, J., agrees). In the year before he left the military, Arellano developed bipolar-type schizoaffective disorder with PTSD. Identifier. However, Arellano did not apply for VA disability benefits until June 3, 2011, nearly 30 years after leaving the military. Identifier. When he applied, the VA gave him a 100% disability rating. Identifier.

Veterans who apply for VA disability benefits within one year of discharge may receive benefits retroactive to their discharge date. 38 USC § 5110(b)(1). However, benefits for veterans who do not file a claim in that first year become effective the earliest the day the VA receives the claim. 38 USC § 5110(a)(1). In 2017, the VA found that Arellano was eligible for VA disability benefits, but denied him retroactive benefits because he had not applied within a year of his discharge. Arellano v. Wilkien° 18-3908, 2019 WL 3294899, at *1 (veterinary request of July 23, 2019), aff’d sub nom., Arellano vs. McDonough, 1 F.4th 1059 (Fed. Cir. 2021). The Veterans Appeal Board (the “Committee”) denied Arellano’s appeal regarding retroactive benefits. Identifier.

Arellano appealed the Board’s decision to the United States Court of Appeals for Veterans’ Claims (the “Court of Appeals”). Identifier. In his appeal, Arellano argued that the one-year deadline in Section 5110 should be subject to a “fair toll,” which would allow veterans who file after the deadline to receive retroactive benefits. they could demonstrate that an extraordinary circumstance had delayed their application. Arellano v. Wilkie2019 WL 3294899, at *1; Arellano1 F.4th at 1062. Arellano argues that — like many veterans with significant mental health issues — his schizoaffective disorder and PTSD kept him from applying for benefits for years after leaving the military. Arellano v. Wilkie2019 WL 3294899, at *2.

In 2019, the Court of Appeal upheld the Board’s decision denying Arellano’s retroactive benefits. Identifier. at 3. The court found that it was bound by an opinion of the Federal Circuit that “[p]fair toll principles. . . do not apply to the period referred to in § 5110(b)(1). » Identifier. to *2 (omitted from original) (quoting Andrews vs Principi351 F.3d 1134, 1137 (Fed. Cir. 2003)). Although the court found that, in the absence of precedent, Arellano’s arguments “were worth exploring[,]”he judged that”[a]s the law is today. . . item 5110 is not subject to fair toll. Identifier.

Arellano appealed that decision to the Federal Circuit, which in 2021 unanimously concluded that the fair toll of Section 5110 delay was not available in Arellano’s case. Arellano1 F.4e at 1060. However, the court was deeply divided “as to the reasons for its decision”. Identifier. In a concurring opinion written by Judge Chen, six judges concluded that fair toll of the type sought by Arellano applied only to statutes of limitations. Identifier. to 1065 (Chen, J., concordant). On the other hand, in a separate concurring opinion written by Judge Dyk, six other judges wrote that while a fair toll should be available to veterans under Section 5110, Arellano’s specific circumstances do not did not justify a fair toll for the delay in his case. Identifier. at 1086 (Dyk, J., concordant).

The Supreme Court will now consider whether the fair toll sought by Arellano is available. AARP and the AARP Foundation filed an amicus brief in support of Arellano, arguing that the fair toll should extend to veterans applying for disability benefits.


In 2020, the VA received over a million disability benefit claims and spent approximately $88.5 billion to provide benefits to injured veterans. When soldiers agree to risk their lives to serve their country, they do so knowing that the federal government will support them if they suffer lasting injuries. The VA disability benefits program is a crucial lifeline for these veterans. However, some veterans with disabilities face a difficult situation: the very disabilities that qualify them for benefits also prevent them from realizing they are eligible for government assistance and successfully navigating the tedious application process. within one year for retroactive benefits. By ruling that a fair toll is available under Section 5110, the Supreme Court could ensure veterans have a fair chance to get the benefits they have earned.

Sebastien Monzon Rueda

[email protected]

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