Updated June 17, 2024

Most Veterans are no strangers to the hurry-up-and-wait nature of the military, and the VA benefits appeals process is no different. Veterans are given strict deadlines for submitting claims, filing disagreements, appealing decisions, and more. However, the VA itself is on a much more lenient schedule. It’s common for appeals to take well over a year to be decided. During that time, a Veterans’ quality of life could be significantly diminished.

In the extreme case we’ll explore today, one Veteran had to wait nearly 20 years for a response from the VA. The optics of the case don’t look great for the VA, according to Judge Toth of the United States Court of Appeals for Veterans Claims.

“You have a Veteran who asks for a one-week extension of time, and then the [VA] takes 15 years to basically adjudicate that and says, ‘no, he can’t have a week, but it takes us 15 years,’” Judge Toth said during oral arguments.

To learn why this happened, how Michael D.J. Eisenberg fought for the Veteran’s rights at the United States Court of Appeals for Veterans Claims (USCAVC), and steps you can take to avoid this happening to you, keep reading.

The Fight for a Reasonable Deadline Extension

Gary Ferko, a Navy Veteran, was denied benefits for a heart disability on November 2, 2004. Like all Veterans, Mr. Ferko had one year to file his Notice of Disagreement (NOD). However, Mr. Ferko had undergone heart surgery and was recovering under the fog of medications and pain, and he didn’t file his NOD until November 14, 2005, about two weeks after the deadline for doing so. Mr. Ferko requested a deadline extension given his health circumstances, which had impacted his ability to file within the standard timeframe.

Instead of rejecting his Notice of Disagreement, the VA did nothing at all. Mr. Ferko received no decision from the VA for nearly 15 years. Finally, in 2020, the Board of Veterans’ Appeals (BVA) deemed Mr. Ferko’s NOD as untimely. They claimed that Mr. Ferko’s appeal’s lateness was a jurisdictional bar, thus preventing them from ruling on it. Thankfully, the Board of Veterans Appeals did consider the good-cause argument Mr. Ferko made in his request for a deadline extension.

On June 22, 2023, Mr. Eisenberg argued the case before a panel of judges from the United States Court of Appeals for Veterans Claims (USCAVC). Following that, the panel ordered the case to be heard en banc, or before the entire USCAVC.

On May 28, 2024, the USCAVC found that the one-year deadline to file a Notice of Disagreement is not a jurisdictional bar as the BVA had claimed. The USVAVC ultimately found that the BVA had made an error in treating the one-year deadline so strictly, and that they failed to acknowledge that the deadline can be extended when a Veteran has good cause.

Why Did the USCAVC Rule This Way?

Mr. Ferko and all other Veterans face a one-year filing deadline for their Notices of Disagreements. This deadline is meant to ensure that the VA is able to process claims in an orderly fashion. However, it’s not intended to absolutely prevent any Veteran from filing beyond that time period, particularly when they have good reason for their lateness.

Indeed, 38 CFR § 3.109(b) for deadlines to be extended when there’s good cause for doing so. And, as Judge Falvey noted, “if open-heart surgery is not good cause, it's hard to imagine what is.” The VA failed to follow this regulation in Mr. Ferko’s case.

Fortunately, nearly 20 years after filing his NOD, some sensibility has been shown in Mr. Ferko’s case. The USCAVC unanimously decided to overturn the prior BVA decision, and send the case back for further proceedings with the VA’s regulations relating to deadline extensions applied.

The Impact of Ferko v. McDonough

Mr. Ferko’s case is tragic. Veterans should not have to wait 15 years for a significant decision on their appeals or claims. For some Veterans whose livelihoods depend on their benefits, such delays can dramatically reduce their quality of life. Fortunately, Mr. Ferko’s case also draws attention to core issues facing Veterans and the VA more broadly.

PTSD, depression, anxiety, and physical disabilities stemming from military service can make it difficult for all Veterans to adhere to strict deadlines, even when given a year. While deadlines are important for the VA’s ability to process these same Veterans’ claims and appeals efficiently, the VA should be more accommodating when the circumstances, such as in Mr. Ferko’s case, make it reasonable to do so.

Likewise, Mr. Ferko’s case illustrates broader challenges facing the VA. Without the necessary funding, the VA is bound to make errors. This is not necessarily due to any ill will toward Veterans; rather, it’s simply an inevitability when an organization is dealing with such a high volume of people. Proper funding can prevent errors like this from happening, enable more efficient decisions, and allow the VA to invest the additional time in extraordinary cases like Mr. Ferko’s.

How to File Your NOD For a Timely Review

Under the Appeals Modernization Act, an NOD is typically referred to as a Board Appeal. When you file a Board Appeal, you can have your appeal reviewed in one of three ways:

• In a Direct Review, where you don’t submit additional evidence and your appeal is directly reviewed by a Veterans Law Judge (VLJ).

• With Evidence Submission, where you submit additional evidence to the board to be considered with your appeal.

• With a Hearing Request, where you have a hearing with a Veterans Law Judge and can then submit new evidence for consideration.

Properly filing a Notice of Disagreement is critical for your appeal being processed in a timely manner. When you appeal a denied claim, you need to file your appeal within one year after your decision letter is mailed.

Although you have a year to file your appeal, it’s best not to dawdle. You never know what will come up that could derail your plans. Additionally, the earlier you start, the more time you’ll have to consult with an attorney like Mr. Eisenberg, who can consult you on gathering evidence like buddy letters and a medical nexus letter.

Are You Appealing a Denied VA Disability Claim?

The best way to ensure that your appeal has a chance of success is to have help from the beginning. An attorney experienced with Veterans’ benefits matters can help you plan the most effective appeal. This includes determining the best route for your appeal, whether that be through a Board Appeal, a Supplemental Claim, or a Higher-Level Review. Additionally, a Veterans’ lawyer can help you determine what types of evidence you need and assist in the process of gathering that evidence.

Michael D.J. Eisenberg is a Veterans’ benefits attorney with over 17 years of experience. If you need to appeal a claim, Mr. Eisenberg may be able to help. (Mr. Eisenberg, like most VA-certified representatives, doesn’t or can’t assist with VA applications.) To schedule an initial consultation, contact the Law Office of Michael D.J. Eisenberg today.

Note: Consultations for Veterans’ Benefits Appeals Matters are free; however, consultations for Military Records Issues and Medical/Physical Evaluation Boards are paid.