Justia Military Law Opinion Summaries

Tadlock served in the Army, 1982-2003, including service in the Persian Gulf. In 2010, he suffered a pulmonary embolism (PE) that resulted in a heart attack. Tadlock sought presumptive service connection under 38 U.S.C. 1117, which refers to a “qualifying chronic disability” for veterans who served in the Persian Gulf War. The regulations limit the definition of “qualifying chronic disability” to one that, “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” Tadlock underwent a final medical examination by a VA physician, who explained that Tadlock’s PE “is not an undiagnosed illness.” The Board of Veterans Appeals based its denial of service connection on that opinion.Neither the Board nor the examiner made any finding that Tadlock’s condition was not a “medically unexplained chronic multisymptom illness” (MUCMI). Tadlock contended that the statute expressly includes both “an undiagnosed illness” and a MUCMI. The Veterans Court found that Tadlock's PE was "not characterized by overlapping signs and symptoms and unique features ... and disproportional disability when compared with physical findings.” It held that "any error in the Board decision regarding whether his diagnosed illness could count as a MUCMI is harmless.”The Federal Circuit vacated. The Veterans Court exceeded its authority in making a fact-finding in the first instance that Tadlock’s illness did not qualify as a MUCMI because of a lack of overlapping symptoms. The Veterans Court’s jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate. View "Tadlock v. McDonough" on Justia Law

Rudisill served three periods of active duty military service: 2000-2002 in the Army (30 months); 2004-2005 in the Army National Guard (18 months); and 2007-2011 as a commissioned Army officer (45 months). He received 25 months and 14 days of education benefits under the Montgomery GI Bill (MGIB), 38 U.S.C. 3011(a), for completion of his college degree. After his third period of Army service, he applied for education benefits under the Post-9/11 GI Bill, 38 U.S.C. 3311, for a graduate program. The VA determined that he was entitled to the Post-9/11 benefits, but only for the remaining 10 months and 16 days of the 36 months authorized for Montgomery benefits. The Board of Veterans’ Appeals agreed.The Veterans Court reversed. A veteran is entitled to education benefits for each of his periods of separately qualifying service and is entitled to the aggregate cap of 48 months of benefits. The Federal Circuit affirmed. The legislation explicitly provides additional benefits to veterans with multiple periods of qualifying service, whereby each period of service qualifies for education benefits: “The aggregate period for which any person may receive assistance under two or more of the provisions of law listed below may not exceed 48 months,” 38 U.S.C. 3695(a). This provision has been in each GI Bill since at least 1968. View "Rudisill v. McDonough" on Justia Law

The Eighth Circuit reversed the district court's orders involving plaintiff and Union Pacific's motions for judgment as a matter of law (JMOL) and plaintiff's motion for attorney fees in this suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA).As a preliminary matter, the court concluded that the lack of damages or equitable relief at the district court level did not strip this court of subject matter jurisdiction. On the merits, the court concluded that the district court improperly granted plaintiff's motion for judgment as a matter of law where a reasonable jury could find Union Pacific attempted to fit plaintiff into an appropriate job within the corporation's reorganized structure upon his return from deployment, thereby leading to the conclusion Union Pacific reemployed him in accordance with the escalator position principle. The court reversed the district court's JMOL decision on the reemployment claim.In addressing the denial of its own JMOL motion, Union Pacific raised affirmative defenses for the first time on appeal. The court will not consider Union Pacific's new arguments on appeal. Nonetheless, on the record before the court and on de novo review, the court concluded that the district court should have granted Union Pacific's motion for JMOL because no reasonable jury could find in favor of plaintiff on his reemployment claim. In this case, the record does not support the conclusion that Union Pacific failed to place plaintiff in the position that he would have otherwise been in had he not been deployed. Finally, because plaintiff was not entitled to judgment as a matter of law on his reemployment claim, he does not qualify as a prevailing party for the purpose of recovering attorney fees. View "Quiles v. Union Pacific Railroad Co., Inc." on Justia Law

Adams, a member of the Arizona Air National Guard, worked in human resources for Customs and Border Patrol (the agency). In 2018, Adams performed three periods of National Guard military service. Between April 11 and July 13, Adams was activated under 10 U.S.C. 12301(d) to support a military personnel appropriation (MPA) tour in support of Twelfth Air Force; July 18-July 30, he was ordered to attend annual training under 32 U.S.C. 502(a). Between July 28 and September 30, Adams was again activated under section 12301(d) to support an MPA tour. Both 12301(d) orders stated that they were “non-contingency” activation orders.Under 5 U.S.C. 5538(a), federal employees who are absent from civilian positions due to certain military responsibilities may qualify to receive the difference between their military pay and what they would have been paid in their civilian employment during the time of their absence (differential pay). Adams requested differential pay for each of his periods of service. Adams appealed the agency's denials. The Merit Systems Protection Board held that the denials did not violate the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 4301–4335). The Federal Circuit affirmed. Entitlement to differential pay requires service under a call to active duty that meets the statutory definition of a contingency operation. None of Adams’s service meets the statutory requirements for differential pay, View "Adams v. Department of Homeland Security" on Justia Law

The Eighth Circuit reversed the district court's dismissal of Plaintiffs Mullen and King's complaint against the United States based on lack of subject matter jurisdiction. Plaintiffs' causes of action stemmed from the death of Rosemarie Ismail, a 69-year-old veteran who died from a hematoma after a liver biopsy performed at a VA hospital. The district court concluded that King failed to properly present her Federal Tort Claims Act (FTCA) claim because Mullen, who filed an administrative wrongful death claim with the VA as the personal representative of Ismail's estate, did not have the authority under Missouri law to act on King's behalf.The court held that the DOJ regulations specifically contemplate that Mullen, as the personal representative of Ismail's estate, may present an administrative wrongful death claim even if she is not authorized to bring an FTCA action in that same capacity. Given the court's plain reading of the FTCA and the corresponding regulations, the court concluded that Mullen had the requisite authority to present a wrongful death claim to the VA and consequently that King's FTCA claim was administratively exhausted. The court explained that an FTCA notice of claim need not be filed by a party with the legal authority or capacity under state law to represent the beneficiaries' interests in state court. Therefore, the district court had subject matter jurisdiction over King's FTCA claim. The court remanded for further proceedings. View "King v. United States" on Justia Law

The Department of Defense's experiments at Edgewood involved “volunteers,” including Taylor, who was on active duty, 1969-1971. Taylor signed a secrecy oath providing that he would not divulge any information related to the program and that any such action would render him liable to punishment and signed a document stating that the experiment had been explained to him and that he volunteered to participate. Taylor was exposed to a nerve agent, a tear gas agent, and more. Taylor experienced hallucinations, nausea, jumpiness, irritability, sleepiness, dizziness, impaired coordination, and difficulty concentrating. He was subsequently deployed to Vietnam, for two combat tours. The secrecy of the project prevented Taylor from obtaining psychiatric help and from showing extenuating circumstances during his court-martial.In 2006, the Edgewood names were declassified. The VA notified participants that they were permitted to disclose to health care providers information about their involvement at Edgewood that affected their health. In 2007, Taylor sought service-connected benefits for PTSD. A VA medical examiner diagnosed Taylor with PTSD and major depressive disorder, “a cumulative response” to his Edgewood experience and “subsequent re-traumatization in Vietnam.” Taylor had previously sought treatment for his PTSD but was rejected because the provider believed he lied about being an experimental subject.The VA granted Taylor’s claim, with a 2007 effective date, citing the absence of an earlier claim. On remand, the VA failed to obtain the language of Taylor’s secrecy oath and again concluded that the earliest assignable effective date was 2007; “nothing prevented [Taylor] from filing a claim.” The Veterans Court affirmed.The Federal Circuit reversed. The Veterans Court erred in concluding it lacked equitable authority absent an express statutory grant and erred in concluding that 38 U.S.C. 5110(a)(1) is not subject to common law equitable doctrines. The government affirmatively and intentionally prevented veterans from seeking medical care and applying for disability benefits to which they are otherwise entitled under threat of criminal prosecution and loss of the very benefits sought. “If equitable estoppel is ever to lie against the Government, it is here—to preserve the ‘interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.’” View "Taylor v. McDonough" on Justia Law

The “effective date of an award” of disability compensation to a veteran “shall not be earlier than the date” the veteran’s application for such compensation is received by the VA. 38 U.S.C. 5110(a)(1). Section 5110(b)(1) provides an exception that permits an earlier effective date if the VA receives the application within one year of the veteran’s discharge from military service: under such circumstances, the effective date of the award shall date back to “the day following the date of the veteran’s discharge or release.”Arellano filed his application more than 30 years after he was discharged from the Navy, he argued that section 5110(b)(1)’s one-year period should be equitably tolled to afford his award an earlier effective date reaching back to the day after his discharge. The Veterans Court denied Arellano an effective date earlier than the date his disability benefits application was received by the VA. The Federal Circuit previously held that 5110(b)(1) is not a statute of limitations amenable to equitable tolling but merely establishes an effective date for the payment of benefits, thereby categorically foreclosing equitable tolling. The Federal Circuit affirmed as to Arellano, declining to overrule that precedent, stating that the statutory text evinces clear intent to foreclose equitable tolling of section 5110(b)(1)’s one-year period. View "Arellano v. McDonough" on Justia Law

Anania served in the Army, 1972-1975. In 2008, Anania sought an increased evaluation for the degenerative joint disease of his spine and major depressive disorder, and entitlement to a total disability rating based on individual unemployability. The VA issued a rating decision. Anania filed a Notice of Disagreement. In December 2009, the VA denied Anania’s request, describing the process for appeal. Anania had until March 3, 2010—one year after the date of mailing of the notification of the VA’s decision—to file a substantive appeal with the Waco Regional Office. In June 2012, Anania’s counsel, Carpenter, sent a letter to the Board of Veterans’ Appeals requesting confirmation that it had docketed Anania’s substantive appeal of the rating decision.The Board concluded that Anania failed to timely file his substantive appeal, which “was not received into VA custody until June 29, 2012.” Anania urged the Board to find his appeal timely filed under the common law mailbox rule, submitting a signed affidavit from Carpenter, alleging that Carpenter had personally mailed the substantive appeal on January 18, 2010. On remand, the Board again determined that Anania’s appeal was not timely filed, stating that the mailbox rule’s presumption of receipt did not attach because Carpenter’s affidavit was “no more than self-serving testimony.” The Veterans Court affirmed. The Federal Circuit reversed. A party’s affidavit may provide credible evidence to satisfy the mailbox rule, and the government did not challenge the credibility of Carpenter affidavit. View "Anania v. McDonough" on Justia Law

Cameron filed a Notice of Disagreement (NOD) on behalf of an Army veteran in August 2005. The VA denied Cameron attorney’s fees under 38 C.F.R. 14.636(c), which permits an attorney to charge fees for services provided before a final Board decision only where a NOD was filed on or after June 20, 2007. Before the law was amended, attorneys representing veterans in veterans’ benefits cases before the VA were prohibited from charging fees for services provided before a final Board decision.The Veterans Court and the Federal Circuit affirmed the denial, holding that section 14.636(c) is consistent with its authorizing statute, 38 U.S.C. 5904. Congress considered eliminating all fee restrictions under section 5904(c)(1) by repealing subsection (c)(1) entirely but made a legislative choice between the competing purposes of liberalizing the availability of attorney’s fees and avoiding disruption to the veterans’ benefits system, and “adopted a delayed and staggered effective date . . . [to] allow a deliberate and gradual implementation of these policies in order to minimize any disruption to the VA system.” In denying Cameron attorney’s fees, the VA has done no more than give effect to that legislative choice. View "Cameron v. McDonough" on Justia Law

Snyder served in the Army for fewer than 50 days in 1974, during the Vietnam “period of war,” 38 C.F.R. 3.2(f). He received an honorable discharge when a knee injury rendered him unfit. Four decades later, he was diagnosed with Amyotrophic Lateral Sclerosis (ALS). He sought disability benefits under 38 U.S.C. 1110. The Veterans Court denied his claim, rejecting Snyder’s argument under a VA regulation, made final in 2009, that provides a presumption of service connection for veterans with ALS if specified preconditions are satisfied, 38 C.F.R. 3.318(a), (b).The Federal Circuit affirmed the denial. Snyder does not satisfy one of the preconditions—that the veteran “have active, continuous service of 90 days or more.” That precondition is not contrary to the statutory scheme nor arbitrary and capricious; 38 U.S.C. 501(a) supplies the required statutory authority for the regulation and section 3.318, as an exercise of that authority, is not contrary to other statutory provisions cited by Snyder. The Secretary found no reliable evidence of a correlation between ALS and service periods as short as 90 days; it was reasonable to choose a familiar short period to avoid too demanding an evidentiary standard (no presumption) or too lenient a standard (no minimum service period) for applying the statutory requirement of service connection to ALS. View "Snyder v. McDonough" on Justia Law