Justia Military Law Opinion Summaries

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

Flora is the widow of Donald, a World War II veteran, honorably discharged in 1945 after being diagnosed with diabetes mellitus. At that time the VA found his diabetes to be service-connected and gave him a disability rating of 40%. Beginning in 1950, Donald was hospitalized at various times for complications and declining health as a result of his diabetes and repeatedly, unsuccessfully, requested increases in his disability rating. In 1961, the Director of the Compensation and Pension Service found “clear and unmistakable error” and increased the rating to 60%, effective 1961. Ultimately, Donald’s disability rating was increased to 100%, effective 1965. Donald died in 1969, from complications of diabetes. Flora was granted dependency and indemnity compensation, 38 U.S.C. 1310, and filed a claim under 38 U.S.C. 1311(a)(2), which provides that a surviving spouse may qualify for increased benefits if the veteran received “or was entitled to receive . . . compensation for a service-connected disability that was rated totally disabling for a continuous period of at least eight years immediately preceding death.” The VA denied the claim in 2003. Flora pursued appeals, which were ultimately rejected by the Board of Veterans’ Appeals. The Veterans Court and Federal Circuit affirmed. View "Kernea v. Shinseki" on Justia Law

Massie served on active duty in the Army, 1968-1970 and was awarded VA benefits for varicose veins and related surgery, initially at 10% and increased to 50%, disability effective in 1990. In, 2001, Massie sought an increased disability rating. He submitted a letter from a VA physician who had treated Massie for “multiple medical problems” including “chronic venous insufficiency” that had “persisted in spite of prior surgical treatment with vein stripping” and that left Massie with significant pain when he was on his feet for any period of time. The regional office increased Massie’s rating to 100%, as of the 2001 date of his filing. The Veterans Court determined that the physician’s letter, dated 1999, did not qualify as an informal claim that would entitle Massie to an earlier effective date for the 100% rating. The Federal Circuit affirmed that the letter was not a “report of examination” because it did not describe the results of a “specific, particular examination” and did not suggest that Massie’s condition had worsened. View "Massie v. Shinseki" on Justia Law

Louis Burden, a Vietnam veteran, served on active duty in the Army from 1948 until 1968. He married Michele in a ceremonial marriage in April, 2004. Two months later, Burden died. In August 2004, Michele applied for dependency and indemnity compensation. A VA regional office denied her claim because she had not been married to Burden for at least one year prior to his death, 38 U.S.C. 1102(a). Michele asserted that she and Burden had been living in a common law marriage for five years prior to his death. The board acknowledged that she had provided some evidence to support her claim, but concluded that it did not constitute the “clear and convincing proof” required to establish a valid common law marriage under Alabama law. The Veterans Court and the Federal Circuit upheld the denial. State law, including state law evidentiary burdens, applies in determining the validity of a purported common law marriage View "Burden v. Shinseki" on Justia Law

Yonek served on active duty in the Navy from 1973 to 1977 and in 1991-1992. In 1991, Yonek aggravated a preexisting injury to his right shoulder, leaving the motion of his arm permanently limited. The VA regional office granted service connection for the injury, assigning a rating of 10 percent. Over the next 17 years, Yonek underwent at least 15 examinations, measuring his range of motion for flexion, elevation of the arm in a forward direction, and abduction, elevation of the arm outward from the side of the body. The results showed a range of motion of anywhere between 80 and 180 degrees in flexion and 60 and 180 degrees in abduction. In 1999, the RO increased the rating to 20 percent, concluding that motion was limited to a point at or below shoulder level but past the midpoint between the side and the shoulder (between 45 and 90 degrees). The Board of Veterans’ Appeals denied his appeal. The Veterans Court held that diagnostic code 5201 only allows a single disability rating for each injured shoulder even though Yonek’s shoulder manifests limitation of motion with respect to both flexion and abduction. The Federal Circuit affirmed, finding that the schedule in 38 C.F.R. 4.71a only allows a single disability rating. View "Yonek v. Shinseki" on Justia Law