Justia Military Law Opinion Summaries

Cameron returned to Kentucky after serving as a Marine in Iraq and applied for VA Medical Benefits, but did not include verification of service (DD-214). Four months later, the VA verified his service, but its record did not reflect combat service or other eligibility; his status was “Rejected.” A week later, Cameron’s records were updated and he was retroactively enrolled. Cameron had been involved in killing a civilian family. His parents had contacted the Lexington VA mental health department and urged their son to seek help. Tiffany, his wife, told him that she and their baby would not continue to live with him unless he sought help. Days before his enrollment was corrected Cameron went to the Leestown VA. The intake clerk recognized that Cameron was in urgent need of help and talked to him for 40 minutes, despite not finding his enrollment. She concluded that Cameron was suicidal. No mental health professional was available at Leestown. She sent him to Cooper Drive VA. Cameron called his father later, stating that he had been turned away from Cooper Drive because he did not have his DD-214. Cameron drove home. He and Tiffany searched for the form. Cameron became frustrated and threatened Tiffany, who called 911. While on the phone, she heard a shot. Her husband had committed suicide. His family asserted claims under the Federal Tort Claims Act. The district court dismissed, holding that it did not have jurisdiction over a “benefits determination,” Veterans’ Judicial Review Act, 38 U.S.C. 511.The Sixth Circuit reversed. Whether the clinics had a duty to care for Cameron is an improper question for this stage. The government failed to show that the actions of the VA employees satisfied the test of the FTCA’s discretionary function exception. View "Anestis v. United States" on Justia Law

Bowers served in the Army National Guard 1972-1978, with a continuous period of active duty for training from August 1972 to February 1973. His records do not reflect that he incurred any injury or disease during service. In 2009, shortly after his diagnosis with Lou Gehrig’s disease (ALS), Bowers sought benefits for ALS and secondary conditions. A VA Regional Office denied the claim, finding that his ALS was not incurred or aggravated in service. The Board of Veterans’ Appeals rejected his argument that he was entitled to presumptive service connection for ALS under 38 C.F.R. 3.318, noting that reserve duty and active duty for training of the type Bowers performed does not generally entitle an individual to evidentiary presumptions. While his appeal to the Veterans Court was pending, Bowers died and his wife was substituted as the appellant. The Veterans Court affirmed, finding that Bowers did not achieve “veteran status,” and was not entitled to presumptive service connection. The Federal Circuit affirmed. View "Bowers v. Shinseki" on Justia Law

Stallworth served in the U.S. Army, 1974-1975, during which time he experienced a psychotic episode that was attributed to his illicit use of the drug LSD. He recovered with hospitalization, but relapsed following return to active duty and was diagnosed with acute paranoid schizophrenia. A treating physician noted that it was not clear whether Stallworth’s illness was caused by his drug use or by independent psychosis. An Army medical board found him unfit for further military duty. Weeks later, a VA Regional Office awarded Stallworth service connection for schizophrenia at a 50% disability rating. Thereafter, Stallworth was often admitted to inpatient psychiatric facilities where medical professionals repeatedly opined that he had “no mental disorder” and that Stallworth’s service connection diagnosis was in error. The VA severed Stallworth’s service connection on the basis of clear and unmistakable error (CUE) and declined to reopen his claim because of a lack of new evidence. In 1981, the Appeals Board affirmed. The Veterans Court and Federal Circuit affirmed. View "Stallworth v. Shinseki" on Justia Law

Dixon served in the Army, 1979-1992, including as a chemical operations specialist in the Persian Gulf, where he was exposed to pyridostigmine and “encountered smoke from oil fires, diesel, and burning trash,” and had “cutaneous exposure [to] diesel and petrochemical fuel.” In 2003, Dixon was diagnosed with sarcoid lungs and transverse myelitis, which left him temporarily paralyzed from the waist down. He sought service-connected disability benefits. In 2004 a VA regional office denied Dixon’s claim. The Board of Veterans’ Appeals affirmed, Dixon filed a pro se notice of appeal, 60 days after the 120-day filing deadline, 38 U.S.C. 7266(a). The Veterans Court dismissed, concluding that it was “without jurisdiction.” In 2011 the Supreme Court held that the filing deadline is not jurisdictional. The Veterans Court issued an order allowing Dixon and others to move to recall the dismissals. Still acting pro se, Dixon sought equitable tolling, explaining that he suffered from physical and psychiatric disabilities that prevented him from filing in a timely manner, accompanied by a statement from his psychiatrist. The Veterans Court denied Dixon’s motion. Attorneys subsequently agreed to represent Dixon. The Veterans Court allowed until October 4, 2012 to move for reconsideration. The VA refused to provide a copy of the file and the earliest available appointment for reviewing the file was October 1. On that dated, VA staff monitored the review and declined requests for copies of documents. The Federal Circuit reversed the denial of an extension, stating that the disability compensation system is not meant as a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim.View "Dixon v. Shinseki" on Justia Law

Prinkey served in the Army, 1969 to 1970, including time in Vietnam. He was diagnosed with diabetes in 1996. Diabetes mellitus type II is presumed to be service connected if the veteran was exposed to Agent Orange, 38 U.S.C. 1116(a)(2)(H) (2002). In 2003, the VA received Prinkey’s claim for benefits on account of his diabetes, asserting exposure to Agent Orange. The VA Regional Office grantedservice connection for diabetes, evaluated at 20%, and lesser rated service connection for other disabilities secondary to diabetes. Prinkey sought to reopen his claim. During reexamination, the VA concluded that his diabetes more likely than not resulted from the surgery that removed most of his pancreas following years of alcohol abuse, not from his exposure to Agent Orange. Ultimately the Board of Veterans’ Appeals sustained severance of service connection for diabetes and related disabilities and denied entitlement to a total disability rating based on individual unemployability. The Veterans Court affirmed. The Federal Circuit affirmed. Under 38 C.F.R. 3.105(d) “service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous; the VA may consider medical evidence and diagnoses that postdate the original award of service connection. View "Prinkey v. Shinseki" on Justia Law

Parks served in Vietnam 1964-1966. Along with 6,000 other soldiers, Parks volunteered for “Project 112” and was intentionally exposed to chemical warfare agents. In 2000 and in 2002, Parks sought service connection for diabetes type II with peripheral neuropathy and heart disability. The Regional Office denied the claims. While appeal was pending, the government declassified details about chemicals used in Project 112. The Department of Defense reported that it did not know of any long-term effects caused by exposure to the chemicals, but the Veterans Health Administration required the VA to provide to Project 112 veterans “a thorough clinical evaluation,” enhanced access to the VA health care system, and free care for any illness possibly related to their participation” and 38 U.S.C. 1710(e)(1)(E) provides specific services for veterans who participated in Project 112. The VA sent Parks a letter identifying the chemicals to which he had been exposed and providing instructions on how to obtain additional medical examinations. Ultimately, the Veterans’ Court denied a service connection. The Federal Circuit affirmed, upholding reasoning that a nurse practitioner is able to provide a medical examination that meets the regulatory requirements of competent medical evidence and refusal to consider information found on the Internet.View "Parks v. Shinseki" on Justia Law

Kyhn served in the U.S. Army 1945-1946. In 1998, he filed a claim for service-connected hearing loss, which was denied by the regional office. Kyhn submitted a Notice of Disagreement, with medical evidence from his private audiologist and asserted that he was seeking service connection for tinnitus. The RO granted service connection for hearing loss at a 50% rating, but denied service connection for tinnitus. Kyhn did not appeal. The decision became final. In 2004, Kyhn sought to reopen his tinnitus claim and presented another letter from his private audiologist. Although the RO declined to reopen the tinnitus claim, the Board found the private audiologist’s statement constituted new and material evidence and remanded. Kyhn failed to appear and the Board denied service connection, based on the evidence of record. The Veterans Court found the VA had a regular practice to provide veterans with notice of their VA examinations and applied the presumption of regularity to presume the VA had properly notified Kyhn in accordance with this practice and affirmed the denial. The Federal Circuit vacated because of the lower court’s reliance on affidavits that were not part of the record before the Board. View "Kyhn v. Shinseki" on Justia Law

Vazquez-Claudio is a Vietnam veteran. Following his service, Vazquez-Claudio filed a claim with the VA seeking disability compensation for post-traumatic stress disorder. In 2005, after finding that his PTSD was service- connected, the VA granted his request for benefits with an effective date in June, 1994. The VA rated Mr. Vazquez-Claudio’s PTSD as 50 percent disabling, Vazquez-Claudio appealed, arguing entitlement to a 70 percent rating. He had been unable to work since 1994, when he left his job as a police officer as the result of an emotional breakdown following a prisoner’s suicide. The Board of Veterans’ Appeals found that other than occasional suicidal ideation, social isolation, and some difficulty adapting to stressful situations, none of his symptoms corresponded to impairment greater than 50 percent. The Veterans Court agreed, stating that “[t]he issue before the Board was not how many ‘areas’ Mr. Vazquez-Claudio has demonstrated deficiencies in but, rather, ‘the frequency, severity, and duration of the psychiatric symptoms, the length of remissions, and Mr. Vazquez-Claudio’s capacity for adjustment during periods of remission.’” The Federal Circuit affirmed.View "Vazquez-Claudio v. Shinseki" on Justia Law

Middleton served on active duty from 1964 until 1990. He first sought compensation for type II diabetes mellitus in 2001. In 2002, a VA Regional Office granted service connection, assigning a disability rating of 20 percent under 38 C.F.R. 4.119. In 2009 Middleton was denied an increased rating after a VA physical examination. During his appeal, Middleton was treated with three oral hypoglycemic agents and daily injections of the drug Byetta®. In 2010, the Board of Veterans’ Appeals again denied a rating increase despite Middleton’s assertions that his diet was restricted, his activities were regulated, and he used an oral hypoglycemic agent, based on the fact that he did n not use insulin to regulate his diabetes. The Board stated that use of insulin is a necessary element for the 40-percent rating. The Veterans Court affirmed the denial. The Federal Circuit affirmed, stating it lacked jurisdiction to review the Veterans Court’s application of the regulations to the facts and that the Veterans Court did not err in interpreting the governing regulations View "Middleton v. Shinseki" on Justia Law

Massie served on active duty in the Army, 1968-1970 and was awarded VA benefits for varicose veins and related surgery, initially at 10% and increased to 50%, disability effective in 1990. In, 2001, Massie sought an increased disability rating. He submitted a letter from a VA physician who had treated Massie for “multiple medical problems” including “chronic venous insufficiency” that had “persisted in spite of prior surgical treatment with vein stripping” and that left Massie with significant pain when he was on his feet for any period of time. The regional office increased Massie’s rating to 100%, as of the 2001 date of his filing. The Veterans Court determined that the physician’s letter, dated 1999, did not qualify as an informal claim that would entitle Massie to an earlier effective date for the 100% rating. The Federal Circuit affirmed that the letter was not a “report of examination” because it did not describe the results of a “specific, particular examination” and did not suggest that Massie’s condition had worsened. View "Massie v. Shinseki" on Justia Law