by
Goodman served in the U.S. Army, 1972-1992, with service in Southwest Asia during the Persian Gulf War. During his service and at his discharge, Goodman underwent medical examinations that returned negative for rheumatoid arthritis; he denied having pain in his joints or arthritis. In 2007, Goodman sought treatment at a VA medical center for hand stiffness and knee pain, which he said had begun during service. He sought VA benefits for rheumatoid arthritis. The Board sought an independent medical advisory opinion from the Veterans Health Administration, which was conducted by a VA medical center Director of Rheumatology in 2014 and concluded that “it is less likely than not” that Goodman’s rheumatoid arthritis can be characterized as a medically unexplained chronic multi-symptom illness (MUCMI) under 38 C.F.R. 3.317, and that it “is less likely than not that his rheumatoid arthritis is related to a specific exposure event experienced … during service. The Board concluded that Goodman was not entitled to a presumptive service connection for a MUCMI; the Federal Circuit affirmed. The VA adjudicator may consider evidence of medical expert opinions and all other facts of record to make the final determination of whether a claimant has proven, based on the claimant’s unique symptoms, the existence of a MUCMI. View "Goodman v. Shulkin" on Justia Law

by
Kisor served in the Marine Corps from 1962-1966. In 1982, he sought disability compensation benefits for PTSD with the Portland, Oregon VA Regional Office (RO), which received a letter from a Vet Center counselor, expressing concerns that Kisor had “depression, suicidal thoughts, and social withdraw[a]l.” In 1983, the RO obtained a psychiatric examination for Kisor, which noted that Kisor had served in Vietnam; that he had participated in “Operation Harvest Moon”; that he was on a search operation when his company came under attack; that he reported several contacts with snipers and occasional mortar rounds fired into his base of operation; and that he “was involved in one major ambush which resulted in 13 deaths in a large company.” The examiner expressed his “distinct impression” that Kisor suffered from “a personality disorder as opposed to PTSD,” which cannot be a basis for service connection. Kisor did not pursue an appeal. In 2006, Kisor submitted a request to reopen and presented a 2007 report of a psychiatric evaluation diagnosing PTSD. He was granted a 50% rating. The Veterans Court and Federal Circuit affirmed that Kisor was not entitled to an effective date earlier than June 2006 for the PTSD. Kisor’s remedy for the earlier denial would have been an appeal. View "Kisor v. Shulkin" on Justia Law

by
Lt. Harris has been an officer in the Navy since 2005. He was arrested by civilian authorities in 2013 for sexual offenses involving minors and was held in confinement until his 2015 conviction and sentencing. Between his arrest and conviction, the Navy withheld Harris’s pay pending the outcome of his criminal proceedings. Based on his conviction, the Navy determined that, under the Military Pay Act, 37 U.S.C. 204, and Department of Defense regulations, Harris’s absence was unexcused and he was not entitled to any pay for his absence during confinement. The Federal Circuit affirmed the Claims Court’s dismissal of his suit, in which he sought back pay, challenged the civilian court’s jurisdiction to convict him, and claimed due process violations. Harris failed to state a claim under the Military Pay Act because he was convicted of his crimes, and was not entitled to pay during his unexcused absence. Harris failed to state a due process claim because he was not statutorily eligible to receive pay during his detention; the Fifth and Fourteenth Amendments were not implicated. The Claims Court lacked jurisdiction to review the jurisdiction of civilian authorities to prosecute and convict him as a military service member. View "Harris v. United States" on Justia Law

by
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

by
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

by
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

by
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

by
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

by
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

by
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