Justia Military Law Opinion Summaries

Ollis, a veteran, sought disability benefits under 38 U.S.C. 1151, which provides benefits for certain injuries incurred as a result of VA medical care. Ollis suffers from atrial fibrillation and claims a disability resulting from complications of a heart procedure to treat that condition. The procedure (miniMAZE) was allegedly recommended by a VA doctor but was performed by a private doctor. The VA denied Ollis’s application for benefits. The Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims affirmed. The Federal Circuit vacated in part, remanding the question of whether Ollis’s VA doctors were negligent by recommending the mini-MAZE procedure to him. The Veterans Court focused on whether VA medical treatment caused Ollis to utilize Dr. Hall and Methodist Medical Center, rather than on whether VA medical treatment caused him to have the mini-MAZE procedure itself. On remand, the Veterans Court must also address the “not reasonably foreseeable” and “proximate cause of the disability” requirements. The court affirmed rejection of an argument that VA’s failure to provide him notice that a referral to a private facility for his miniMAZE procedure could extinguish his eligibility for benefits constituted a violation of his right to due process. View "Ollis v. Shulkin" on Justia Law

Monk served in the Marine Corps during the Vietnam War. In 2012, Monk sought VA disability benefits, alleging service-connected PTSD, diabetes, hypertension, and strokes. The VA denied the claim, finding that his discharge was “other than honorable.” Monk filed a Notice of Disagreement (NOD) and separately applied to the Board of Correction of Naval Records (BCNR) to upgrade his discharge status. In 2015, the VA informed Monk that it could not process his appeal until it received BCNR records. Monk sought a writ of mandamus with Veterans Court and requested that the court certify a class of all veterans who had applied for VA benefits, had timely filed an NOD, had not received a decision within 12 months, and had demonstrated medical or financial hardship (38 U.S.C. 7107(a)(2)(B)–(C)). The Veterans Court denied the request for class certification, denied another veteran’s request to join the action, and ordered the VA to respond to Monk’s petition regarding the denial of disability benefits. BCNR then granted Monk an upgraded discharge status. The Federal Circuit reversed the denial of class certification, finding that the Veterans Court has authority to certify a class for a class action and to maintain similar aggregate resolution procedures with respect to benefit denials. View "Monk v. Shulkin" on Justia Law

In 2014, the Board of Veterans Appeals denied Parrott’s claims for benefits on account of her veteran husband’s esophageal adenocarcinoma, with liver and peritoneal metastasis, and his ensuing death. The Veterans Court vacated and remanded. Parrott then timely sought attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412. The Veterans Court awarded her $4,050. The Federal Circuit affirmed, rejecting arguments that, in arriving at its award of attorney fees, the Veterans Court misinterpreted EAJA and adopted an incorrect approach for determining the cost of living adjustment to be used in calculating her attorney’s hourly rate and that the court then abused its discretion by not allowing her to resubmit her application using the approach the court had adopted. EAJA states that “attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living . . . justifies a higher fee.” The court properly rejected Parrott’s request for a cost of living increase, based on Washington D.C., based on the location of the Veterans Court and applied rates based on the locations of her attorney’s offices in San Francisco, Dallas, and Little Rock. View "Parrott v. Shulkin" on Justia Law

Kays served in the Navy, 1972-1976. In 2005, he sought benefits for disability caused by PTSD, allegedly caused by two non-combat stressors during his service. He was stabbed during a fight as he left an Enlisted Men’s Club, and while off-duty and taking diving lessons, he was asked to help with the recovery effort of a downed civilian helicopter; in the water, he was separated from the group and became stressed. Kays submitted a newspaper article, statements, records, and in-person testimony about those events. In 2005, the VA Regional Office denied Kays’s claim. The Board of Veterans Appeals remanded for further development of the record. The Regional Office again denied the PTSD claim. The Board affirmed. Meanwhile, the pertinent regulation, 38 C.F.R. 3.304(f), was amended and the Veterans Court held that the amendments were retroactive. On remand, the Board again denied Kays’s claim, finding that statements by Kays and his former spouse about the alleged stabbing were unsupported and contradicted by other evidence and that Kays’s testimony about the search and rescue was not credible because of the lack of supporting detail in the article, his delay in reporting the event, and his changing story. The Veterans Court found the Board’s decision to be a question of fact reviewed under the clearly erroneous standard. The Federal Circuit affirmed, finding that the Veterans Court applied the correct standard of review and correctly determined that the regulations require credible supporting evidence. View "Kays v. McDonald" on Justia Law

Aldridge served on active duty in the U.S. Marine Corps, 1984-1992, and was denied a disability rating higher than 10% for patellofemoral syndrome on his knees in 2013. The Board of Veterans Appeals informed Aldridge that he had 120 days to file a notice of appeal with the Veterans Court, 38 U.S.C. 7266(a), by April 23, 2014. The Veterans Court received his notice on October 27, 2014. Aldridge acknowledged that his appeal was late, but argued that deaths in his family and his resulting depressive state prevented him from timely filing. His mother died on September 27, 2013; his daughter gave birth to a stillborn child on December 16; and his sister died on January 14, 2014. He asked the court to apply the doctrine of equitable tolling. The court determined that Aldridge had failed to demonstrate that his family’s losses “themselves directly or indirectly affected the timely filing of his appeal,” noting that Aldridge closed the estates of his deceased mother and sister, became his father’s primary caregiver, maintained his job at a Veterans Affairs hospital, and attempted to hire a lawyer during the time at issue. The Federal Circuit affirmed, upholding the Veterans Court’s application of a legal standard that required proof of causation. View "Aldridge v. McDonald" on Justia Law

Hudgens injured his right knee while serving on active duty in the U.S. Army. In 2003, Hudgens had partial knee replacement surgery; in 2006, he sought VA benefits. The Board of Veterans’ Appeals denied him a disability rating of greater than 10 percent for degenerative joint disease in the right knee and denied him entitlement to a compensable disability rating for instability in the right knee for a prior time period. The Veterans Court vacated those decisions; held that Hudgens was not entitled to compensation for his prosthetic knee replacement under 38 C.F.R. 4.71a, Diagnostic Code 5055; and remanded for determination of whether his knee replacement could be rated by analogy to that code. The Federal Circuit reversed, holding that Hudgens may be compensated under DC 5055 based on his partial knee replacement. Hudgens’s interpretation of DC 5055 is consistent with the beneficence inherent in the veterans’ benefits scheme and with the majority of Board decisions that have interpreted the regulation. View "Hudgens v. McDonald" on Justia Law

Sneed, who served on active duty 1964-1968, suffered service-connected disabilities. In 2001, Sneed suffered a spinal cord contusion from a fall, leaving him quadriplegic. In 2003, he died of smoke inhalation while living in a home for paralyzed veterans. His widow sought dependency and indemnity compensation, 38 U.S.C. 1310, alleging that Sneed’s service-connected spondylosis and spinal stenosis contributed to quadriplegia and that his service-connected PTSD and hearing loss prevented him from exiting during the fire. The Board of Veterans’ Appeals affirmed denial,mailing notice on April 5. Sneed’s notice of appeal was due 120 days after that mailing. On April 13, Sneed contacted attorney Eagle, requesting representation. According to Sneed, at the request of Eagle’s secretary, she transmitted case materials to and had oral communications with that office. On August 2, Sneed received a letter from Eagle, stating that the claim “does not meet the criteria,” declining representation, and stating that notice of appeal was due "no later than August 5.” The correct deadline was August 3. Several lawyers declined her case. Sneed filed notice on September 1, explaining her circumstances. The Veterans Court dismissed the appeal as untimely. On remand, Sneed argued attorney abandonment, warranting equitable tolling. The Veterans Court held, and the Federal Circuit affirmed, that equitable tolling was not warranted absent an agreement between Eagle and Sneed and that Sneed did not act diligently. View "Sneed v. McDonald" on Justia Law

Veterans’ Groups challenged regulations issued in 2014 by the Department of Veterans Affairs pursuant to its notice-and-comment rulemaking authority. The Final Rule amended the VA’s adjudication and appellate regulations to require that all claims for compensation “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty . . . during a period of war” and related appeals originate on standard VA forms. The VA’s prior regulation provided that “[a]ny communication or action, indicating an intent to apply for . . . benefits[,] . . . may be considered an informal claim,” 38 C.F.R. 3.155(a). The Federal Circuit denied the petitions and found the Final Rule valid because it accords with applicable rulemaking procedures and is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The Rule does not contravene Congress’s mandate that the VA has a duty to develop veterans’ claims. View "Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs" on Justia Law

Veterans’ Groups challenged regulations issued in 2014 by the Department of Veterans Affairs pursuant to its notice-and-comment rulemaking authority. The Final Rule amended the VA’s adjudication and appellate regulations to require that all claims for compensation “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty . . . during a period of war” and related appeals originate on standard VA forms. The VA’s prior regulation provided that “[a]ny communication or action, indicating an intent to apply for . . . benefits[,] . . . may be considered an informal claim,” 38 C.F.R. 3.155(a). The Federal Circuit denied the petitions and found the Final Rule valid because it accords with applicable rulemaking procedures and is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The Rule does not contravene Congress’s mandate that the VA has a duty to develop veterans’ claims. View "Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs" on Justia Law

Dover served in the Navy, 1956-1960, and, in 1968, filed a claim for service-connected disability benefits. His claim for a hand injury was denied; he did not appeal. In 2004, the VA regional office (RO) denied Dover's motion to reopen. In 2008, Dover requested clear and unmistakable error (CUE) review of both the 1968 decision and the 2004 refusal to reopen. In 2009, the RO granted service connection based on new medical evidence and assigned an effective date of March, 2006, the date of another request to reopen. In 2009, Dover appealed for an earlier effective date of 1968, but the RO found no CUE. In 2011, Dover provided more detailed arguments. The Board for Veterans’ Appeals issued a final ruling of no CUE. On appeal, the VA conceded that it erred by failing to dismiss Dover’s non-specific CUE claim. The Veterans Court remanded with instructions to allow and consider additional evidence and argument in support of the claim. The Board dismissed Dover’s 2008 claim without prejudice but treated the 2011 submission of additional arguments as a separate CUE claim and remanded to the RO. Dover moved under the Equal Access to Justice Act for attorney’s fees incurred on appeal, 28 U.S.C. 2412(d). The Veterans Court rejected the motion because it believed that its remand was for dismissal. The Federal Circuit reversed, stating that the remand expressly contemplated, and the appellant received, further proceedings, sufficient for prevailing party status. View "Dover v. McDonald" on Justia Law