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Lawyer: Ruling to have ‘huge impact’ on veterans’ claims

By: DOLAN MEDIA NEWSWIRES//January 13, 2014//

Lawyer: Ruling to have ‘huge impact’ on veterans’ claims

By: DOLAN MEDIA NEWSWIRES//January 13, 2014//

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By Julie McMahon
Dolan Media Newswires

The Veterans Clinic at Harvard Law School, in partnership with a Providence, R.I. law firm, recently earned its first victory: convincing the U.S. Court of Appeals for Veterans Claims to issue a precedent-setting decision that expands the appeals period for those returning from a war zone.

In the case of Lt. Col. Wilson Ausmer Jr., who claimed disability benefits for diseases and injuries incurred during his first two deployments to Afghanistan, the Veterans Affairs Board of Veterans’ Appeals denied his application because he failed to file a timely appeal.

But Ausmer argued that he didn’t receive notification because he was recalled to active duty, and upon his return, during which he suffered from acute anxiety, he failed to sort through accumulated mail.

Represented by Chisholm, Chisholm & Kilpatrick attorney Zachary Stolz and Harvard Law School students, Ausmer appealed the board’s decision to the U.S. Court of Appeals for Veterans Claims.

Before a panel convened at the law school, Ausmer’s counsel argued that the Servicemembers Civil Relief Act, which grants veterans returning from service “the temporary suspension of judicial and administrative proceedings,” should toll the statute of limitations.

The court agreed, remanding the case back to the Board of Veterans’ Appeals for consideration on the merits. According to Stolz, the ruling carves out an exception to the 120-day appeal period for veterans who experience difficulty adjusting to civilian life.

“We’re ecstatic about this decision,” says Stolz, who recently spoke to reporter Julie McMahon about the case.

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Q. What made you pursue this appeal, when Ausmer clearly had not acted within the given appeal period?

A. Just the pure facts of this and in talking to Colonel Ausmer, it did not seem fair. It didn’t seem right, so we wanted to investigate it further. Another thing was that the Supreme Court recently issued a decision in Henderson v. Shinseki, and they said that the VA needed to take a broader look at these cases. And because a lot of our work and our success representing veterans in the past have been veterans who may have missed a deadline, and we know the reasons veterans miss deadlines, we thought it may be something that the Court of Veterans Claims would take a look at.

Q. Do you think the court’s decision represents a trend in how veterans’ claims are being handled?

A. It represents, in my opinion, an expansion of what the veterans’ court is willing to look at. It represents the court saying that so many veterans are in so many special circumstances, especially in the way America has fought its recent wars, with multiple deployments. It’s the court saying they’re willing to look at this on a case by case basis. They won’t just say, “Sorry, you missed your 120 days.”

Q. Who will this decision apply to? Which veterans could it affect?

A. Certainly, anybody who is in a similarly situated position. Someone with multiple tours of duty. Certainly someone whose mail is piling up. But more than that, not necessarily in its holding but in the dicta of its decision, the court says it will look at anybody with a good excuse for missing that 120 days. As far as the holding goes, it’s a really big deal. I think it’s going to have a huge impact on people similarly situated.

Q. What did this case mean to you, personally?

A. On a personal level, it was enormously satisfying to work with the students and with Colonel Ausmer, someone who was very cooperative and just a nice person. It was great to have the opportunity to do something good for someone who deserves a shot.

Q. What advice about this court would you share with other attorneys who might practice there?

A. I was just in Washington a month or two ago for their 25th anniversary, so it is young. It’s an exciting place to practice because we’re still trying to hammer out a lot of law. I would recommend anyone taking on these cases to reach out to somebody like our firm to understand what it’s like there. It can be a little bit tough. Other than that, because it’s nationwide and based in Washington, D.C., they rely a lot on e-filings, so I think it’s safe to say that they were a pioneer in the e-filing field because they have such a heavy caseload and a national jurisdiction. What’s really interesting about the court, which is a little different than other appeals courts, is most of their decisions are done by a single justice. When the court wants to make precedent-setting decisions, they convene a panel.

Q. How were you able to get the panel in this case to come to New England?

A. Generally, it’s held in Washington, but because it recognizes the nationwide jurisdiction, the justices travel quite a bit. They want veterans to know they are out there, so they go to a lot of law schools. I’ve appeared before them in Texas and at Yale. I think the court would tell you that if you write them a letter, they’ll entertain any suggestion. [Harvard Law] clinical professor Daniel L. Nagin and Dean Martha L. Minow sent an invitation out to the court, and Chief Judge Bruce E. Kasold accepted the invitation.

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