Arellano v. McDonough


Question(s) Presented

“Under 38 U.S.C. § 5110(b)(1), ‘[t]he effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.’ (emphasis added.) Veterans who miss this one-year statutory deadline—even if because of a service-connected physical or mental impairment— are barred from recovering retroactive disability benefits reaching back to their date of discharge. In Irwin, this Court held that ‘the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.’ Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Despite this, an ‘equally divided’ Federal Circuit held 6-6 that military veterans are categorically precluded from pursuing equitable tolling of § 5110(b)(1)’s one-year deadline, regardless of the facts and circumstances of their individual cases.”

“The questions presented are:”

  1. “Does Irwin’s rebuttable presumption of equitable tolling apply to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, has the Government rebutted that presumption?”
  2.  “If 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, should this case be remanded so the agency can consider the particular facts and circumstances in the first instance?”

Posts About this Case

Proceedings and Orders
October 4, 2021
Motion to extend the time to file a response is granted and the time is extended to and including November 22, 2021.
November 10, 2021
Motion to extend the time to file a response is granted and the time is further extended to and including December 22, 2021.
January 5, 2022
DISTRIBUTED for Conference of 1/21/2022.