Justia Military Law Opinion Summaries

Wolfe, who was enrolled in VA health care, obtained emergency treatment at a non-VA health care facility, incurring expenses of $22,348.25. Her employer-sponsored healthcare contract covered most of the expenses. She was responsible for a copayment of $202.93 and coinsurance of $2,354.41. The VA denied reimbursement of those expenses; 38 U.S.C. 1725(c)(4(D) bars reimbursement for “any copayment or similar payment.” Wolfe filed a Notice of Disagreement; rather than await the outcome of her appeal, Wolfe also filed a mandamus petition. The Veterans Court certified her requested class and granted her petition, invalidating a VA regulation prohibiting the reimbursement of deductibles and coinsurance for being within the category of “similar payments,” and requiring the VA to re-adjudicate claims denied under the invalidated regulation.The Federal Circuit reversed. Deductibles are excluded from reimbursement under the correct interpretation of the statute and other adequate remedies (appeal) were available with respect to coinsurance, so mandamus was inappropriate. Coinsurance is the type of partial coverage that Congress did not wish to exclude from reimbursement. View "Wolfe v. McDonough" on Justia Law

Martinez-Bodon served on active duty in the Army, 1967-1969. In 2016, he sought benefits for diabetes and for anxiety secondary to his diabetes. At his VA psychiatric examination, he reported: “I can’t sleep well, my right eye trembles too much and that bothers me and I get very anxious about it.” He denied having other symptoms. The VA examiner found that these symptoms did not meet the “criteria for a mental condition as per DSM–5” and concluded that she could not establish a relationship between Martinez-Bodon’s diabetes and anxiety.The VA granted him a service connection for diabetes but denied him a service connection for a mental condition. The Board of Veterans’ Appeals affirmed. The Court of Veterans Claims rejected an argument that even without a formal diagnosis, his symptoms constitute a disability for service-connection purposes under Federal Circuit precedent defining “disability.” The Federal Circuit affirmed that 38 C.F.R. 4.125(a) and 4.130, “require a DSM–5 diagnosis as a precondition to compensate mental conditions.” View "Martinez-Bodon v. McDonough" on Justia Law

The Fifth Circuit denied defendants' motion for a partial stay of the district court's preliminary injunction enjoining the Department of Defense, United States Secretary of Defense Lloyd Austin, and United States Secretary of the Navy Carlos Del Toro from enforcing certain COVID-19 vaccination requirements against 35 Navy special warfare personnel and prohibiting any adverse actions based on their religious accommodation requests. Specifically, defendants seek a partial stay pending appeal insofar as the injunction precludes them from considering plaintiffs' vaccination statuses "in making deployment, assignment and other operational decisions."The court weighed the Mindes abstention factors and determined that this dispute is justiciable. However, the court concluded that defendants have not carried their burden to warrant the issuance of the stay. The court agreed with the district court that defendants have not shown a compelling interest to deny religious accommodations under the Religious Freedom Restoration Act of 1993 to each of the 35 plaintiffs at issue. Rather, the "marginal interest" in vaccinating each plaintiff appears to be negligible and thus defendants lack a sufficiently compelling interest to vaccinate plaintiffs. The court also concluded that the preliminary injunction does not irreparably damage the Navy and the public; partially staying the preliminary injunction pending appeal would substantially harm plaintiffs; and issuance of the requested stay would disserve the public interest. View "U.S. Navy SEALs 1-26 v. Biden" on Justia Law

Gurley served in the Army, 1972-1974 (a period of war) and the National Guard, 1975-1982. As of 1997, VA was paying him service-connected disability compensation benefits at the 100 percent disability level based on individual unemployability. In 2011, Gurley was convicted of a felony and was incarcerated for nearly six months. When a veteran is incarcerated for a felony conviction, the veteran “shall not be paid” the full amount of awarded compensation benefits “for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends,” 38 U.S.C. 5313(a)(1). Gurley’s payment should have been reduced to the 10% disability level. Gurley, however, received his full benefits because VA did not learn of his incarceration until six days after his release.The VA notified Gurley that he had been overpaid by $10,461 and that it would reduce its payment of Gurley’s current benefits “until the amount . . . overpaid is recouped.” Gurley unsuccessfully requested a waiver under 38 U.S.C. 5302 and disputed the debt. The Board of Veterans’ Appeals, Veterans Court, and Federal Circuit affirmed. The retroactive benefit reduction and recoupment of the overpayment through the withholding of continuing benefit payments were proper. View "Gurley v. McDonough" on Justia Law

Nicely served in active duty in the Marine Corps (USMC) for more than 10 years. Between Nicely’s 2010 DUI arrest and his 2011 discharge, the state court dismissed the DUI charge but Nicely wrote a letter to his Commanding General admitting to having driven under the influence. After the Board of Inquiry proceedings began but before they ended, Nicely filed a reprisal complaint under the Military Whistleblower Protection Act (MWPA), 10 U.S.C. 1034. Nicely’s complaint was dismissed in 2012. Nicely unsuccessfully petitioned the Board for Correction of Naval Records (BCNR) to correct his military record.Nicely filed suit in the Claims Court, alleging that some BCNR members were not statutorily authorized to serve. The BCNR rejected his claim that retired military officers are precluded from sitting on military correction boards under 10 U.S.C. 1552(a), reasoning that neither BCNR’s authorizing statute nor governing regulations expressly define "civilian" and do not expressly exclude retired military members from those civilians who may serve as Board members. The Claims Court then dismissed for lack of jurisdiction. The Federal Circuit affirmed. The Claims Court correctly concluded that Nicely’s claim arose under the MWPA and not the Military Pay Act and that it, therefore, lacked jurisdiction. The use of the term “civilian” throughout Title 10 to include former and retired members of the military is consistent with the ordinary meaning of “civilians”—that is, a person who is “not serving on active duty in the military View "Nicely v. United States" on Justia Law

Social Security retirement benefits are calculated using a formula based on past earnings, 42 U.S.C. 415(a)(1)(A). Under the “windfall elimination” provision, benefits are reduced when a retiree receives a separate pension payment based on employment not subject to Social Security taxes. Pension payments exempt from the windfall reduction include those "based wholly on service as a member of a uniformed service.”A “military technician (dual status),” 10 U.S.C. 10216, is a “civilian employee” assisting the National Guard. Such technicians are required to maintain National Guard membership and must wear uniforms while working. For their work as full-time civilian technicians, they receive civil-service pay. If hired before 1984, they receive Civil Service Retirement System pension payments. As part-time National Guard members, they receive military pay and pension payments from a different arm of the government.The SSA applied the windfall elimination provision to the benefits calculation for Babcock, a dual-status technician. The district court and Sixth Circuit upheld that decision, declining to apply the uniformed-services exception.The Supreme Court affirmed. Civil Service Retirement System pensions generally trigger the windfall provision. Babcock’s technician work was not service “as” a National Guard member. A condition of employment is not the same as the capacity in which one serves. The statute states: “For purposes of this section and any other provision of law,” a technician “is” a “civilian employee,” “authorized and accounted for as” a “civilian.” While working in a civilian capacity, technicians are not subject to the Uniform Code of Military Justice. They possess characteristically civilian rights concerning employment discrimination, workers’ compensation, disability benefits, and overtime work; technicians hired before 1984 are “civil service” members, entitled to pensions as civil servants. Babcock’s civil-service pension payments are not based on his National Guard service, for which he received separate military pension payments. View "Babcock v. Kijakazi" on Justia Law

Breland served in the Army in Vietnam, 1965-1968, and was exposed to Agent Orange. In 2006, Breland was diagnosed with carcinoma of the tongue; he completed his treatments in January 2007. The VA Regional Office denied Breland’s claim for service connection. A January 2008 biopsy revealed the recurrence of Breland’s tongue cancer. He underwent surgery. Breland filed a Notice of Disagreement. In 2010, a VA examiner note Breland’s complaint of continuing dry mouth, found no recurrence of Breland’s cancer, and concluded that the condition was “less likely related” to herbicide exposure. Breland’s claim was again denied.In 2015, Breland submitted a medical opinion tying his tongue cancer to Agent Orange exposure and retroactively granted service connection, with a 100% rating for December 2006-August 2007, and a non-compensable rating, based on Breland’s inactive disease. Following a September 2017 VA examination, the Regional Office granted service connection for certain residual conditions and determined that a 100% rating for Breland’s tongue cancer was warranted retroactively for an additional eight-month period. The Board of Veterans’ Appeals and Federal Circuit upheld those determinations. Diagnostic Code 7343 does not require the VA to continue a 100% disability rating until it performs a “mandatory VA examination” six months following treatment when the disability rating is assigned retroactively after the six-month period has passed. Breland has been and is fairly compensated based on the actual state of his health. View "Breland v. McDonough" on Justia Law

Under a 2014 policy, United pilots only accrued sick time during the first 90 days of military leave. Moss, a pilot and a Lieutenant Colonel in the Marine Corps Reserves, sued, alleging violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, which requires employers to provide employees on military leave any seniority-based benefit the employee would have accrued but for the military leave. He claimed that sick time is a seniority-based benefit that should have continuously accrued or sick-time accrual was available to pilots on comparable periods of leave.The district court granted United summary judgment. The Seventh Circuit affirmed. For a benefit to be seniority-based, the benefit must be a reward for length of service. Sick leave is not such a reward but is "a future-oriented longevity incentive." United’s sick-time accrual policy contains a work requirement and is in the nature of compensation, not a reward for long service. . View "Moss v. United Airlines, Inc." on Justia Law

Scholz was honorably discharged following her 2006-2008 Army tour of duty in Iraq but the mental and physical toll of her service continued. Scholz required a range of medical treatments. Scholz sought two courses of inpatient mental health treatment at the Tomah VA Medical Center in 2011. Later, while receiving outpatient mental health treatment through the Tomah VAMC, she consulted surgeons at the Zablocki VA Medical Center about elective breast reduction surgery. An unrelated psychological assessment performed at Zablocki VAMC raised concerns about Scholz’s mental health. Zablocki VAMC surgeons performed elective breast reduction surgery in 2012, igniting multiple complications. Scholz continued to receive outpatient mental health treatment, including prescription medications, from various VA providers through late 2018.Scholz has two lawsuits pending against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671–2680. The government argued that the second suit on the same, or essentially the same, operative facts, was precluded on claim-splitting grounds. The Seventh Circuit affirmed the dismissal of the suit. Scholz’s theory amounts to “arbitrarily splitting the treatment timeline.” In both suits, she mentions her treatment for mental health issues, her breast reduction surgery, the unsafe prescribing of medications, and improper record handling. Both suits arise out of Scholz’s treatment at various VA locations in 2011-2018 and mention the same alleged incidents. View "Scholz v. United States" on Justia Law

Philbrook served in the Army, 2000-2004, then was awarded disability compensation for PTSD. In 2011, Philbrook stipulated to a judgment of “guilty except for insanity” in connection with a felony. He was ordered into the custody of the Oregon State Hospital “under the jurisdiction of the Psychiatric Security Review Board . . . for care, custody, and treatment for a maximum period not to exceed 20 years.” Philbrook then applied for total disability based on individual unemployability (TDIU).A VA regional office concluded that Philbrook’s PTSD did not entitle him to TDIU because it did not preclude gainful employment. The Board of Veterans’ Appeals denied TDIU “as a matter of law”; 38 U.S.C. 5313(c), precludes the assignment of a TDIU rating for any period “during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.” The Veterans Court affirmed.The Federal Circuit reversed. Philbrook was not confined in a “penal institution or correctional facility”; he was committed to a mental institution, “a hospital for people with mental or emotional problems.” The term “correctional facility” cannot encompass a hospital that treats civil patients, and a hospital cannot be a correctional facility for some patients and not others. View "Philbrook v. McDonough" on Justia Law