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Gazelle served in the U.S. Army, 1962-1965, and incurred service-connected disabilities. He receives compensation for: degenerative disc disease and joint disease of the cervical spine rated at 20 percent; degenerative disc disease and spondylosis of the thoracolumbar spine rated at 20 percent; left upper extremity radiculopathy rated at 10 percent; left lower extremity radiculopathy rated at percent; and post-traumatic stress disorder. In 2009, the VA increased Gazelle’s disability rating for his service-connected PTSD to 100 percent. Gazelle filed a Notice of Disagreement, alleging the VA failed to award him additional special monthly compensation under 38 U.S.C. 1114(s)(1). In 2011, Gazelle was denied entitlement to special monthly compensation because he did not have additional service-connected “disabilities . . . independently ratable as [60 percent] or more disabling.” Instead of adding together Gazelle’s additional service-connected disabilities at their respective amounts, the VA calculated the independent additional rating via the combined ratings table pursuant to 38 C.F.R. 4.25 (2010), which resulted in a combined rating of 50 percent. In 2014, the Board affirmed. The Veterans Court and Federal Circuit affirmed, holding that consistent with the plain meaning of subsection 1114(s), the Board appropriately applied the combined ratings table to determine eligibility for special monthly compensation benefits. View "Gazelle v. Shulkin" on Justia Law

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Petitioner, a detainee at Guantanamo Bay, sought a writ of mandamus directing that the Hon. Scott L. Silliman of the United States Court of Military Commission Review (CMCR) recuse himself from serving as a judge in petitioner's case on the basis of public statements made by Judge Silliman prior to and during his service on that court. Petitioner also sought to vacate a prior opinion by a panel of the CMCR that included Judge Silliman. Petitioner identified more than a dozen statements that he says indicate Judge Silliman was biased against him. The DC Circuit granted the writ of mandate and held that petitioner satisfied all three conditions for the issuance of the writ. In this case, petitioner had no other adequate means to attain the relief he desired, he satisfied the burden of showing that his right to issuance of the writ was clear and indisputable, and the court was satisfied that the writ was appropriate under the circumstances. View "In re: Khalid Shaikh Mohammad" on Justia Law

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Manzanares served on active duty, 1986-1991. In 1992, she was awarded service connection for a history of stress fractures in both legs, with a non-compensable rating. In 2006, she sought an increased rating. The VA assigned a 10-percent rating for each ankle, with a February 2006 effective date. Manzanares filed a notice of disagreement and claimed: “[e]ntitlement to service connection for degenerative disc disease lumbar spine as secondary to bilateral ankle disabilities.” The VA granted secondary service connection for “degenerative arthritis and disc disease, lumbar spine” with a rating of 20 percent and an April 2007 effective date. Manzanares argued that the VA should have awarded a February 2006 effective date for the secondary service-connected condition, citing 38 C.F.R. 3.156(b), which provides that, for a pending claim, “[n]ew and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” The Board of Veterans’ Appeals, Veterans Court, and Federal Circuit rejected her argument. The effective date for service connection is the later of the date the VA receives the claim or the date that entitlement arose; Manzanares’s secondary service claim was not filed until April 2007 and was not part of the ankle claim. View "Manzanares v. Shulkin" on Justia Law

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Plaintiff filed suit against Wells Fargo, alleging that the foreclosure sale of his house was invalid under the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. 3953(a), 3953(c), which requires a lender to obtain a court order before foreclosing on or selling property owned by a current or recent servicemember where the mortgage obligation "originated before the period of the servicemember's military service." The Fourth Circuit affirmed the district court's grant of summary judgment to Wells Fargo, holding that plaintiff's mortgage obligation originated when he was in the Navy, it was not a protected obligation under section 3953(a), and his later enlistment in the Army did not change that status to afford protection retroactively. View "Sibert v. Wells Fargo Bank, N.A." on Justia Law

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Johnson served in the Army, 1970-1971. In 2008, the VA granted Johnson a 30% rating for posttraumatic stress disorder (PTSD), and a 10% rating for tinea corporis, a skin condition which Johnson described as jungle rot under Diagnostic Code (DC) 7806. The Board of Veterans Appeals increased his PTSD rating to 70% and remanded with respect to his skin condition. After several rounds of review, the Board denied Johnson’s request for an increased rating for tinea corporis in 2014, finding that Johnson’s skin condition affected only a limited area of his body, and his topical corticosteroid treatment of that area did not qualify as a “systemic therapy” under DC 7806. The Veterans Court held that DC 7806 unambiguously defines a topical corticosteroid treatment as “systemic therapy” rather than “topical therapy.” The Federal Circuit reversed, holding that the Veterans Court gave an overly broad reading of the term “systemic therapy” in DC 7806 that encompasses any and all forms of topical corticosteroid treatment. The court noted that Johnson did not challenge factual findings that his use of topical corticosteroids affected only the area to which he applied treatment and did not affect his body as a whole, and reinstated the Board’s findings. View "Johnson v. Shulkin" on Justia Law

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After their three-year-old adopted son died, U.S. Army Major John Jackson and his wife, Carolyn, were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child. The New Jersey law offenses were “assimilated” into federal law under the Assimilative Crimes Act, 18 U.S.C. 13(a), which “borrows” state laws to fill gaps in federal law for crimes committed on federal enclaves. The Jacksons’ crimes occurred within the special maritime and territorial jurisdiction of the U.S. (Picatinny Arsenal Installation). Using the offense guidelines for assault, U.S.S.G. 2A2.3, and aggravated assault, U.S.S.G. 2A2.2, the Probation Office calculated both defendants’ Guidelines range as 210-262 months. The government calculated a range of 292-365 months. The court declined to calculate the applicable sentencing ranges under the U.S.S.G., reasoning that there was no “sufficiently analogous” offense guideline, sentenced Carolyn to 24 months of imprisonment plus supervised release, and sentenced John to three years of probation plus community service and a fine. The Third Circuit vacated the sentences, adopting an “elements-based” approach, but concluding that the assault guideline is “sufficiently analogous” to the Jacksons’ offenses. The district court failed to make the requisite findings with respect to the Guidelines calculation and the statutory sentencing factors. While the court could consider what would happen if the Jacksons had been prosecuted in state court, it focused on state sentencing practices to the exclusion of federal sentencing principles. The sentences were substantively unreasonable. View "United States v. Jackson" on Justia Law

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Plaintiffs sought a declaratory judgment stating that their family members were killed in the course of a U.S. drone attack in violation of international law governing the use of force, the Torture Victim Protection Act (TVPA), and the Alien Tort Statute (ATS). The district court dismissed the claims primarily based on political question grounds. The DC Circuit affirmed and held that it was not the role of the Judiciary to second-guess the determination of the Executive, in coordination with the Legislature, that the interests of the U.S. called for a particular military action in the ongoing War on Terror. In this case, El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010), controlled the court's analysis and compelled dismissal of plaintiffs' claims. View "Bin Ali Jaber v. United States" on Justia Law

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Ground Zero filed suit challenging the Navy's expansion of a TRIDENT nuclear submarine operating center pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. The Ninth Circuit held that the Navy violated NEPA's public disclosure requirement by not revealing that the Safety Board withheld approval of its plan for the construction of a second Explosives Handling Wharf (EHW-2), and by withholding the now-disclosed portions of the appendices to the environmental impact statement (EIS). However, such errors were harmless. In all other respects, the Navy satisfied NEPA's requirements. Therefore, the panel affirmed summary judgment for the Navy. The panel narrowly construed the district court's order restricting Ground Zero's use of portions of the record. Even with this reading, it was not clear that the district court's order comports with the First Amendment. Therefore, the court remanded for further proceedings. View "Ground Zero Center for Nonviolent Action v. US Department of the Navy" on Justia Law

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Presumptive service connection exists for veterans who served in the Persian Gulf War and have chronic: undiagnosed illness; medically unexplained chronic multisymptom illness (MUCMI); or any diagnosed illness as determined by the Secretary, 38 U.S.C. 1117(a)(2). VA regulations define MUCMI as “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.”. Both the statute and regulation identify sleep disturbances and signs or symptoms involving the respiratory system as possible MUCMI manifestations. The VA revised its M21-1 Manual, changing the definition of MUCMI to require “both an inconclusive pathology, and an inconclusive etiology.” Under the subsection “Signs and Symptoms of Undiagnosed Illnesses or MUCMIs,” the VA added, “Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 C.F.R. 3.317 since it is a diagnosable condition.” The Federal Circuit dismissed a veterans’ group’s petition for review for lack of jurisdiction, reasoning that the revisions are not binding and not reviewable under 38 U.S.C. 502. View "Disabled American Veterans v. Secretary of Veterans Affairs" on Justia Law

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Plaintiff began his military career in 1983, serving in the Indiana National Guard, the Army, and the Army Reserve. He was a Captain and served in combat in Iraq. In 2007-2011 he sustained several injuries and was diagnosed with Type 2 diabetes. He was placed on reserve status while a Physical Evaluation Board evaluated his fitness for continued military service. When retired from the army on grounds of physical disability in 2014, Futrell became eligible for a monthly government pension. Had paperwork been processed, he would have also received incapacitation payments during the gap between his release from duty and his retirement; he received no government payments between December 2011 and January 2013, causing him severe financial and emotional distress. In 2013, the government paid him an amount that covered the incapacitation payments that he should have received, but did not compensate for his distress. He filed suit against under the Federal Tort Claims Act, 28 U.S.C. 2674. The Seventh Circuit affirmed dismissal of the suit as barred by a Supreme Court holding that the Act is unavailable to a member of the armed forces who “while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces.” The alleged harms all relate to military benefits and were committed by military base staff. That he was on reserve status is irrelevant. View "Futrell v. United States" on Justia Law