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Can I file a lawsuit against the VA claims section for delaying my claim.

Eugene, OR |

They have had plenty of time (over 20 months) to complete my claim. I have 5 VA doctors supporting my claim and 11 VA social workers that also have documented my injuries.

Attorney Answers 5

Posted

You need to talk to an attorney who is a VA benefits specialist but my guess is the VA doesn't have to complete their processing by any set deadline. In order to sue someone you have to prove that they owed you a legal duty and they breached that duty. The many disability processes take years to complete - it's the same with SSD claims. I believe you will get retroactive benefits once the claim is approved. This is more in the area of elder law so I have changed the topic for you - among the elder law practitioners are some VA specialists. http://www.portlandlegalservices.com

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Posted

I agree - you need to contact and consult with an attorney. Go to the "find a lawyer" tab and look for a lawyer in your community.

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Posted

No, you will not be able to sue the VA for delaying your claim. I suppose that if you wanted to pay a lawyer hourly to try to find some novel theory in your case to make a legal court claim, there's a small chance you might be able to do so. But even then, the VA's own regulations prohibit vets from paying attorneys (other than on a strictly construed contingency fee basis for appeals) for assistance with processing their claims.

While 20 months is certainly a delay, it's by no means uncommon. VA benefits claims often take years to investigate and for an award or initial denial to be issued. It's not uncommon, in fact, for such the life of the claims process to last three, four years, or even longer, depending on the factual issues and the treatment of your case at the Regional Office level, along with subsequent treatment at the BVA and beyond, if necessary.

There's been much documented in the news, especially recently, about the significant backlog at the VA in handling the large amount of VA benefits claims, and the various initiatives to catch-up on this backlog. However, that doesn't presently change the pace of this process for many veterans.

It's incredibly frustrating and time consuming, no doubt, and many veterans face a process that, more often than not, seems like something out of Kafka's "The Trial."

There are numerous VSOs that assist vets with initially establishing their claims, and there are also some attorneys that, upon an initial VA denial of benefits, assist vets with appeals.

If you found this answer helpful, please click the "Mark as good answer" button, below. If you'd like to contact me regarding potentially representing you with regards to your legal matter, please click on my profile and give my office a call. My answer to your Avvo question, however, is informational only and is not intended to be legal advice, nor does it form the basis for any attorney-client relationship whatsoever, which can only be formed upon signing an Engagement Agreement and depositing a Retainer Fee into client trust. Further, I am only licensed in Oregon and laws vary from state to state. If you have an Oregon-related issue, feel free to contact me for a consultation. If you are outside of Oregon, please consult an attorney in your area for legal advice.

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Seth A Director

Seth A Director

Posted

The proper mechanism for invoking a court's jurisdiction for pending VA claims is a writ of mandamus (to compel the secretary to do something) or prohibition (not to do something) before the Court of Appeals for Veterans Claims (CAVC). A recent lawsuit in federal district court on behalf of a class of veterans, Veterans for Common Sense v. Shinseki, was dismissed on jurisdictional grounds, and that dismissal was affirmed by the 9th Cir. (en banc) and the writ for cert. before the US Supreme Court was denied. An attorney should not be charging you for anything related to a VA claim unless pending on appeal and within the statutory and regulatory limitations set forth in Title 38.

Posted

On April 19, 2013 the VA directed all Regional Offices to indentify all claims over two years old and issue either final or provisional rating decisions within 60 days. It is anticipated that the VA will direct next direct the Regional Offices to do the same for all claims over one year old shortly. The VA Office of Case Management can also assist veterans whose claims are pending for lengthy periods of time (over 18 months). Feel free to contact me at (732) 382-6070 or via email at sdirector@finkrosner.com for further information.

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Joanne Reisman

Joanne Reisman

Posted

Excellent news for many Vets! Thanks for posting.

Posted

While you cannot "sue" the VA for delaying on a decision in your claim, there are other options in expediting your VA claim that attorneys that routinely practice in this area can talk to you about:

1) There are procedures to expedite a decision due to financial hardship, deterioration of physical health, age, proximity to death, etc. (Use VA Form 21-4138 and VA Form 5655 to make this request). Depending on the nature of your claim - particularly if it is one for a need-based pension or benefit - you may want to discuss the impact of these forms on your claim with an attorney.

3) Some veterans have filed an Application for Writ of Mandamus in the Court of Appeals for Veterans Claims, although the legal grounds for this can be very complex and I would strongly recommend seeking assistance of legal counsel

I recommend that you talk to an attorney about your situation. Attorneys that assist Veterans in handling their VA claims are required, by Federal Law, to be accredited by the VA.

Veterans are often the victims of well-meaning guidance from folks that don't know the Veterans Disability Claims process, or that have not been accredited by the VA to do this kind of work.

Always be sure to verify that an attorney advising a Veteran or a Veteran's surviving spouse on their VA claims is accredited by the VA.

Here is the link to check out whether a particular attorney has been accredited by the VA: http://www.va.gov/ogc/apps/accreditation/

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Joanne Reisman

Joanne Reisman

Posted

Thanks for the excellent additional info. Very helpful.

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