Justia Military Law Opinion Summaries

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

Narjess Ghane, the mother of a deceased member of the Navy’s Sea, Air, and Land Force (SEAL) Team Five, brought a wrongful death action against a private military contractor. Along with other members of SEAL Team Five, SO2 Sharpoor Alexander (Alex) Ghane Jr. was engaged in a live-fire, close-quarters combat training exercise at Mid-South Institute of Self Defense when a bullet allegedly penetrated a ballistic wall, striking SO2 Ghane above his protective vest and killing him. Mid-South successfully moved for summary judgment on the ground that Mrs. Ghane’s claim would require the trial court to question military policy and operational decisions, thus raising a nonjusticiable political question. The defendants had previously unsuccessfully moved for summary judgment on the ground that SO2 Ghane had signed a valid waiver of liability. Upon review of the matter, the Supreme Court reversed the trial court’s grant of summary judgment pertaining to the political question doctrine, but affirmed the trial court’s previous denial of summary judgment regarding to the liability waiver. The Court determined defendants failed to demonstrate that adjudication of this claim would require reexamination of matters inextricable from military policy and operational decisions. View "Ghane v. Mid-South Institute of Self Defense Shooting, Inc." on Justia Law

Plaintiff filed suit against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), alleging that the Army was negligent and therefore liable for an Army Specialist's sexual assault against plaintiff. The court affirmed the district court's grant of summary judgment to the government, concluding that plaintiff failed to establish that the sexual assault was foreseeable under North Carolina law, and thus the Army did not breach a duty owed to plaintiff as landlord of Fort Bragg; the Army did not have a special relationship with the assailant for purposes of an FTCA claim; the government did not breach a voluntarily assumed duty to plaintiff; and, because discovery would serve no purpose, it was not error for the district court to reach the merits of plaintiff's claim at this stage of the litigation. The court also concluded that, although the government's ability to control a tortfeasor must be independent of the tortfeasor's status as a government employee, knowledge of the tortfeasor's propensity for violence or criminal history did not, per se nullify an FTCA claim. Accordingly, the district court's dismissal on this alternative basis was erroneous. View "Durden v. United States" 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

Plaintiff filed suit alleging that officers in the Army caused his infant son's death by ordering his pregnant wife, a servicewoman on active duty, to perform physical training in contravention of her doctors' instructions, which ultimately induced premature labor. The district court held that the suit was barred by the Feres doctrine and dismissed the action for lack of subject-matter jurisdiction. The Feres doctrine immunizes the United States from liability for tort claims arising out of activities incident to military service. The court concluded that, under its own precedent, Feres barred plaintiff's wrongful death claim. The court employed the "genesis test," by asking whether the family member's Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., claim had its genesis in injuries to members of the armed forces. In this case, the infant's injury derived from his mother's military service. The court rejected plaintiff's claim that genetic injuries differed from claims based upon injuries incurred in utero. Accordingly, the court affirmed the judgment of the district court. View "Ritchie v. United States" on Justia Law

Sprinkle served in the U.S. Army, 1973-1974. While in the service, he was diagnosed with schizophrenia and prescribed a high dose of Thorazine®. In 1990, Sprinkle was diagnosed with mitral valve prolapse and chorea, a movement disorder similar to benign familial myoclonus. He succeeded in establishing entitlement to disability compensation before the Social Security Administration, the VA Regional Office awarded. Sprinkle a non-service-connected pension on effective 1990. In 2001, he sought a service connection for mitral valve prolapse and myoclonus, claiming that he was incorrectly diagnosed with schizophrenia and that the high doses of Thorazine® worsened his mitral valve prolapse and caused his myoclonus.The Regional Office denied the application. The Board of Veterans’ Appeals agreed and the Veterans’ Court affirmed. The Federal Circuit affirmed, holding that Sprinkle was not denied fair process as it related to responding to a medical exam ordered by the Board.View "Sprinkle v. Shinseki" on Justia Law

In 2001, Wagner, who served in the Navy for 23 years, sought disability compensation for a thyroid disorder that he claimed was contracted or aggravated in the line of duty. He finally prevailed in 2009, then timely filed an application for $11,710.57 in fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412.In October, 2009, the Veterans Court awarded $8,601.80, which gave the government all the reductions it sought except for 3.2 hours of work. Wagner filed his first supplemental application 12 days later, seeking $2,458.90 in fees for defending the original application against the government’s reasonableness challenges. The Veterans Court vacillated, then denied entry of judgment on the October 2009 fee award on the original fee application, and denied the first supplemental application. The Federal Circuit reversed in April 2011. On remand the Veterans Court granted Wagner’s first supplemental application for $2,458.90. The Federal Circuit vacated the denial of Wagner’s motion for the entry of a judgment and mandate regarding the 2009 and 2011 fee awards and affirmed the judgment regarding Wagner’s second supplemental application. View "Wagner v. Shinseki" on Justia Law

Augutis had reconstructive surgery on his foot at a VA hospital. Complications led to amputation of his leg. Augutis claims that the amputation was the result of negligent treatment and filed an administrative complaint with the Department of Veterans Affairs. The VA denied the claim. Augutis timely requested reconsideration on March 21, 2011. On October 3, the VA informed him that it had not completed reconsideration, but that suit could be filed or additional time could be permitted to allow it to reach a decision. The letter noted that Federal Tort Claims Act claims are governed by both federal and state law and that some state laws may bar a claim or suit. Days later, the VA denied reconsideration. The letter explained that a claim could be presented to a district court within six months, but again noted that state laws might bar suit. Augutis filed suit on April 3, 2012, more than five years after the surgery, but within six months of the VA’s final dismissal. The district court dismissed under Illinois’s statute of repose, 735 ILCS 5/13‐212(a), which requires that a medical malpractice claim be brought within four years of the date of the alleged malpractice. The Seventh Circuit affirmed, rejecting an argument that the state limitations period was preempted by the FTCA period. View "Augutis v. Uniited States" on Justia Law