Veterans Law Prof Blog

New, Clinic-Focused Veterans Law Textbook Published by Two Long-Standing Members of the NLSVCC By National Law School Veterans Clinic Consortium

After roughly five years of intensive research and writing, Professor Stacey-Rae Simcox, Stetson University College of Law, and retired William & Mary Law School Professor David E. Boelzner have published Veterans Benefits: Law, Theory, and Practice, a unique book that could benefit countless veterans.

The book, published by Carolina Academic Press, aims to serve as “a useful and complete resource for teachers of veterans law, particularly in the practical context of preparing student advocates in law clinics to assist veterans with their claims for benefits.”

It concisely maps out the incredibly complex VA claims system and shows students how to navigate it.

A practical focus

A few features make the book particularly useful to students working in veterans law clinics at law schools across the country.  First, it provides straightforward explanations of the veteran claim system and how it works.  Another useful attribute is that the most important cases in this area of law are summarized so students spend less time dissecting and analyzing each case and more time working on behalf of their clients.

This presentation allows students and instructors to move more quickly through understanding complicated material toward applying what they have learned.  Perhaps most importantly, the book gives them concrete examples that invite students to apply what they are learning to real-world client situations.

“A clinical course requires practical application of statute, regulation, case law, and analysis to a real-life client’s legal issues,” Simcox, who is director of Stetson Law’s Veterans Law Institute, said. “This book is unique because it provides students with a number of client vignettes to allow the student to apply what they are learning to a practical client scenario, just as they would in practice.”

Bridging a legal gap

Part of what makes veterans law clinics at law schools such a critical resource for veterans going through the VA claims process is a federal policy effectively barring them from hiring an attorney until the agency has examined evidence and issued a decision affirming or denying the claim. This often leaves veterans without an advocate during a critical part of the disability claims process.

Since their work is unpaid, students working through veterans law clinics at their law schools are uniquely positioned to assist – provided they have a solid grasp of the system’s nuances.

“Our hope is that this book will help law students and other advocates gain a deeper understanding of veterans law and help achieve better results for our veterans and their families,” Simcox said. “And on a personal note, as a veteran myself, I consider it a great privilege to give back to my fellow veterans in this small way.”

National Law School Veterans Clinic Consortium

Both Stetson Law and William & Mary Law have been supporters of the NLSVCC since its inception.  These were two of the law schools (including John Marshall Law School now University of Illinois Law School) that founded the NLSVCC in 2016.  Since its beginning, the NLSVCC has grown dramatically and encourages the creation of veterans clinics at other law schools through information sharing and support.  The NLSVCC also advocates policy changes and changes in the law that will benefit veterans through testimony before Congress, amici briefs to the federal courts, and advocacy.  In support of the NLSVCC, Professor Simcox is donating her 2023 royalties to the NLSVCC.

SCOTUS Squashes Equitable Tolling for Disability Compensation Claims (by Augusten Lupianez, Intern at Delaware Law School Veterans Law Clinic)

Adolfo Arellano’s journey to the Supreme Court finally ended on January 23, 2023. After years of trying to obtain retroactive benefits from the Department of Veterans Affairs based on his disability, Arellano was denied at the highest court in the land.

Arellano served in the Navy from 1977 to 1981 and was honorably discharged. About 30 years later, Arellano applied for disability compensation based on psychiatric disorders resulting from his time in the Navy. Eventually he was awarded compensation with an effective date of June 3, 2011, the day he submitted his application. Arellano disagreed with the decision, believing his effective date should be 1981, the year he was discharged from service. He asserted that his disability had rendered him incapable of making such a claim for 30 years. Arellano then worked his way through the Veterans Affairs appeal process and found himself at the Supreme Court, fighting for an earlier effective date.

In determining an effective date for an award, the default rule found in 38 U.S.C. §5110(a)(1) typically applies. It states, “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof.” The statute then lists sixteen exceptions to the rule. Arellano argued that one of these exceptions, §5110(b)(1), the provision stating that the effective date for “disability compensation to a veteran shall be the day following the day of the veteran’s discharge or release if the application therefor is received within one year from such date of discharge or release,” allows for equitable tolling. Because he was unable to file for benefits due to his disability, he asserts section (b)(1) applies. Equitable tolling could then allow the effective date of the award to date back to 1981, despite the general rule. If the Supreme Court had sided with him, he would have been able to recover decades worth of disability compensation. Unfortunately, this was not the case.

A unanimous Court decided that Congress did not intend for §5110(b)(1) to allow for equitable tolling. An opinion delivered by Justice Barrett reasoned that though equitable tolling is presumed to be present in statutes written by Congress, it can be rebutted and has been here. In the case of §5110(b)(1), the Court believed allowing equitable tolling to apply here would be “at odds with the statutory text and structure[.]” Arellano v. McDonough, 143 U.S. 543 at 548 (2023).

Congress created an exhaustive list of exceptions to the default rule §5110(a)(1) offers. The Court believed that if Congress had intended for equitable tolling to apply, it would have added it among the sixteen exceptions it lays out. The Court looked at the language of the statute, concluding that statutes containing “‘not only procedural limitations, but also substantive limitations on the amount of recovery’ strongly indicate[s] that ‘Congress did not intend courts to read other unmentioned, open-ended “equitable” exceptions into the statute that it wrote.’” Id. at 549 (quoting U.S. v. Brockamp, 519 U.S. 347, 352). The Court pointed out that §5110(b)(4), the exception allowing for equitable tolling for disability pensions when the disability prevented a veteran from applying for benefits, shows that Congress was thinking about the possibility that disability could create an exception. Since Congress did not expressly include similar language in §5110(b)(1), it must not have intended for equitable tolling to apply to this exception. Id. at 550.

This was an unfortunate decision for Arellano and for all veterans who struggle with debilitating disabilities, and creates a situation where a veteran under these circumstances seeking pension is treated more favorably than one seeking compensation. Veterans in this position are not missing deadlines because they wanted to; they simply could not do so due to circumstances outside of their control. Nonetheless, the holding prevents the application of equitable tolling to §5110(b)(1).