Justia Military Law Opinion Summaries

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

Geib, a World War II veteran, suffers from multiple disabilities connected to his combat service. He developed trenchfoot as a result of exposure to extreme cold weather conditions while stationed in Germany; an enemy artillery shell exploded close to Geib, causing hearing damage. The VA granted Geib disability benefits. He was assigned a 10% disability rating for trenchfoot when he was discharged in 1946. The VA increased the disability rating to 20% in 2003 to account for trenchfoot on his other foot. In 2005, Geib was assigned a 70% combined disability rating after he was diagnosed with service-connected bilateral hearing loss and tinnitus. In 2007, Geib applied for total disability based on individual unemployability, stating that he had worked as a self-employed carpet consultant, 1984-1989, prior to becoming too disabled to work. The regional office denied the claim. On remand, following medical examinations, Geib’s combined disability rating increased to 90%. The Board determined that Geib was not entitled to total disability. The Veterans’ Court and Federal Circuit affirmed. View "Geib v. Shinseki" 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

In 1998, the Board of Veterans’ Appeals rejected a claim by Tyrues, a Persion Gulf veteran, for benefits under 38 U.S.C. 1110, because his lung condition lacked the required service connection, but remanded to the VA Regional Office for further consideration of whether his chronic symptoms manifested Persian Gulf Syndrome, which might have entitled him to benefits under standards later enacted as 38 U.S.C. 1117. In 2004, on remand, the Board decided that Tyrues was not entitled to benefits under section 1117. Tyrues asked the Veterans Court to review both the 2004 denial under section 1117 and the 1998 denial under section 1110. The Veterans Court dismissed with respect to the 1998 decision, ruling that Tyrues missed the 120-day deadline, 38 U.S.C. 7266(a), and presented no basis for equitable tolling. The Federal Circuit affirmed. View "Tyrues 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

Veterans sought disability compensation for post-traumatic stress disorder (PTSD) allegedly caused by sexual assaults that occurred during service. Their service records do not reflect any reports of the alleged sexual assaults. The VA Regional Office, Board of Veterans’ Claims, and the Court of Appeals for Veterans Claims rejected the claims in part on the ground that the service records did not include reports of the alleged assaults, and because the veterans stated that the assaults were never reported to military authorities. The Federal Circuit vacated and remanded, holding that the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur; the Board and Veterans Court may not rely on failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur. View "AZ 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

The Department of Veterans Affairs promulgated a rule that purported to eliminate certain procedural and appellate rights for veterans appearing before the Board of Veterans’ Appeals. The National Organization of Veterans’ Advocates (NOVA) sought review. During the course of review it became clear that the new rule was invalid; the VA made assurances to NOVA and to the Federal Circuit about how the matter would be handled pending resolution. It later became clear that these assurances were not honored by the VA. The Federal Circuit ordered the VA to show cause why it should not be sanctioned. The VA, conceding error, provided a detailed remedial plan. After clarifications, NOVA indicated its satisfaction with, and agreement to, the plan, under which the VA agreed to notify relevant claimants before the Board, to vacate the affected Board decisions, and to provide affected claimants with a new hearing even if relevant deadlines would otherwise have expired. The Federal Circuit approved the plan and did not enter sanctions. View "Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs" on Justia Law