Justia Military Law Opinion Summaries

Bartlett, who served on active duty from 1943 to 1963, submitted a claim in 2002 to increase his rating for service-connected Post Traumatic Stress Disorder. The Board of Veterans’ Appeals issued its first final decision in 2005, increasing Bartlett’s rating from 30% to 100% and remanded to the regional office. After that decision, but before a decision on remand, Bartlett entered into a fee agreement with attorney Cameron, calling for a contingent fee of 20 percent of any past due VA benefits awarded on the basis of his claims. The regional office then increased Bartlett’s disability to 100%, effective April 2002, when Bartlett filed his claim. Cameron sought fees for the past-due benefits award. The regional office denied entitlement to attorney fees, finding that, because the decision was the Board’s first final decision in this claim, 38 U.S.C. 5904(c)(1) precluded entitlement to fees based on benefits arising from the decision. Cameron also appealed the assigned effective date. The regional office assigned a new date, approximately 15 months earlier, granted Bartlett $45,995.93 in past-due benefit, and set aside attorney fees for Cameron: 20% of the additional award occasioned by the change in the effective date. The Board, the Veterans’ Court, and the Federal Circuit affirmed. View "Cameron v. Shinseki" on Justia Law

Federal employees who are members of the National Guard are entitled to up to 15 days of annual military leave “without loss in pay, time, or performance or efficiency rating,” 5 U.S.C. 6323(a)(1). Before a 2000 amendment, the Office of Personnel Management interpreted the section as providing 15 calendar days of leave, rather than 15 workdays; federal employees who attended reserve training on non-work days were charged military leave. The Federal Circuit held that even before 2000, federal agencies were not entitled to charge employees military leave on non-workdays. Tierney worked at the DEA, 1974-2001, and was a member of the Air National Guard. He filed a Merit Systems Protection Board claim that the DEA charged him military leave for reserve duty on 44 non-workdays, so that he took annual leave or unpaid leave for military duty. An AJ ordered DEA to compensate Tierney for 17 days. The full Board reversed, finding that the Military Leave Summary and Tierney’s testimony were based solely on his military records and on speculation that DEA improperly charged military leave on intervening non-workdays and that the evidence was insufficient to prove that DEA charged him military leave on non-workdays or that he used annual leave for reserve duties. The Federal Circuit reversed and remanded, concluding that the decision was not supported by substantial evidence. View "Tierney v. Dep't of Justice" on Justia Law

Pirkl served in the Navy, 1947-1949. Effective in 1949, the VA awarded him disability benefits for paranoid schizophrenic reaction, evaluated as 10% disabling. A regional office increased his disability rating to 100%, effective in 1952. In 1953, the office reduced the rating to 70%. Pirkl did not appeal. In 1956, the office reduced Pirkl’s rating to 50%, based on a newly acquired medical examination and changes in Pirkl’s employment status. Pirkl did not appeal. In 1966, the office reduced the rating to 30%. The Board of Appeals affirmed. In 1991, Pirkl was awarded a 100% disability rating, effective 1988. In 2001, Pirkl unsuccessfully sought to revise the 1953, 1956, and 1966 rating decisions based on clear and unmistakable error (CUE). In 2005, Pirkl filed Notice of Disagreement with respect to the 1953 rating. The Board found CUE. The regional office awarded a 100% rating for 1952 to 1957, when the 1956, decision made effective a 50% rating. The Board dismissed Pirkl’s claim for 100% disability for the entire period between 1952 and August 30, 1988. The Veterans Court affirmed. The Federal Circuit vacated and remanded, concluding that the Board did not consider the effect of certain regulations governing a reduction of a total disability rating. View "Pirkl v. Shinseki" on Justia Law

Walker served in the U.S. Army Air Force, 1943 to 1945, as a four-engine airplane pilot and flight instructor. The VA Regional Office denied his 2007 disability claim for bilateral hearing loss. Walker appealed to the Board of Veterans Appeals, including sworn statements from his son and wife that his hearing loss began in service and continued throughout his life. Walker was examined by a VA audiologist. Walker’s service medical records were not available due to a fire. The audiologist concluded that the hearing loss was “less likely as not caused primarily by military service as a pilot,” that age could not be excluded as the primary etiology, and that Walker was exposed to recreational noise by hunting game without use of hearing protection. The Board concluded that Walker failed under the three-element test to establish service connection for his hearing loss. The Federal Circuit affirmed. View "Walker v. Shinseki" on Justia Law

Viegas served in the U.S. Army, 1965-1967. After leaving the service, he was injured in a diving accident, resulting in “incomplete” quadriplegia. In 2004, Viegas participated in a prescribed aquatic therapy session at a VA medical center. He used a restroom in the VA facility. The grab bar he used to lift himself into his wheelchair came loose from the wall and he fell to the ground. As a result of the fall, Viegas sustained injuries to his upper and lower extremities. Viegas’ medical condition deteriorated after his fall. Prior to his fall, Viegas could sometimes walk with a walker, but since the accident he can only stand with assistance. Viegas sought disability benefits under 38 U.S.C. 1151. A VA regional office denied the claim. The board affirmed, stating that such benefits are available only if additional disability results from injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of hospital care, medical or surgical treatment, or examination furnished by the VA and such additional disability was directly caused by that VA activity. The Veterans Court affirmed. The Federal Circuit reversed, holding that the Veterans Court misinterpreted the causation requirement. View "Viegas v. Shinseki" on Justia Law

The court consolidated appeals by veterans claiming that their current disabilities are connected to injuries sustained during military service. In both cases, the veterans’ medical records contained at least one physician’s report opining that the claimed disabilities were service-connected and at least one ambiguous or inconclusive report declining to confirm such a nexus. The Department of Veterans Affairs relied on inconclusive opinions in denying the veterans entitlement to service-connected disability benefits, and the Board of Veterans’ Appeals affirmed. Finding that the medical examination did not comply with the Board’s instructions and that the Board failed to explain its reasons and bases for denying service connection, the U.S. Court of Appeals for Veterans Claims remanded. The Federal Circuit affirmed that remand, rather than reversal, was appropriate. View "Deloach v. Shinseki" on Justia Law

Harris served on active duty in the U.S. Army from 1963 to 1966 and from 1967 to 1970. In 1985, he had a VA Medical Center examination; an “Agent Orange” form associated with that examination indicates that Harris complained of “skin rashes on trunk and arms.” Another form, listing his service in Vietnam, is an “Application for Medical Benefits,” stated that it “will be used to determine your eligibility for medical benefits.” In 2002, Harris, pro se, sought service-connected disability compensation for contact dermatitis and latex allergy. The DVA regional office ultimately granted the claims and assigned an effective date of 2002. Harris sought an effective date of 1985. The Board held that the report of the Agent Orange Registry examination did not constitute a claim. The Veterans Court affirmed The Federal Circuit vacated, stating that pro se filings must be read liberally; the Veterans Court did not apply the proper legal standard for determining whether the Board had correctly determined the earliest applicable date for the claim. View "Harris v. Shinseki" on Justia Law

A VA regional office awarded King disability compensation for residuals of a left knee surgery and right knee arthritis. King later sought disability compensation for disabilities of the back and hips on a direct basis and as secondary to his service-connected knee disabilities. Records revealed no treatment for back or hip problems during King's active duty service 1973-1974. King underwent a VA spine examination in 2000. The examiner diagnosed minimal degenerative joint disease of both hips and lumbosacral spine, related to age. A private physician disagreed. In 2007, the Board of Veterans denied King's appeal. The Veterans Court remanded. Additional evidence was developed and, in 2008, the Board obtained an opinion from a Veterans Hospital Administration orthopedist that it was not likely that King’s back and bilateral hip disabilities were directly caused or permanently worsened by the service-connected knee disabilities. The Board and Court of Appeals for Veterans Claims affirmed the denial. The Federal Circuit affirmed, rejecting an argument that the Veterans Court erred by discounting lay testimony offered by King and his wife. The Veterans Court did not fail to consider the proffered lay evidence, so King’s appeal was merely a challenge to the weight given his evidence.View "King v. Shinseki" on Justia Law

Youngman, fiduciary for deceased veteran Richardson, sought payment of accrued benefits of about $350,000 that had been awarded to Richardson before his death. Payment had been delayed while the Kansas state courts were accrediting Youngman as successor fiduciary for Richardson, who had been adjudged incompetent several years earlier. Richardson died after the accreditation but before payment. The VA denied payment. The Court of Appeals for Veterans Claims affirmed. Periodic monetary benefits to which an individual was entitled at death are to be paid to the veteran's spouse, children, or dependent parents and, in “all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial” 38 U.S.C.5121(a). Richardson had only cousins as heirs. The Federal Circuit affirmed. While 38 U.S.C. 5502 allows a fiduciary to stand in the shoes of a veteran, it does not grant the fiduciary rights beyond those of the veteran himself. Richardson died without any heirs in the categories qualifying under 5121, so his unpaid benefits died with him. View "Youngman v. Shinseki" on Justia Law

Hillyard suffered a head injury and was hospitalized for two weeks while serving in the U.S. Army. Hillyard filed a single claim for service connection for a mental condition, which he attributed to his in-service head injury. The Veterans Administration denied his claim and the Board affirmed and subsequently denied Hillyard’s request for revision. The Veterans Court affirmed. Hillyard later filed a second request for revision alleging clear and unmistakable error (CUE) by the Board in failing to consider and apply 38 U.S.C. 105(a) and 1111, a different CUE allegation from the one he made in his first request. The Board dismissed the second request for revision with prejudice, concluding 38 C.F.R. 20.1409(c) permitted only one request for revision to be filed. The Veterans Court affirmed. The Federal Circuit affirmed. The interpretation of Rule 1409(c) proffered by the VA is consistent with the language of the regulation and is in harmony with the VA’s description of the regulation in its notice of rule-making. View "Hillyard v. Shinseki" on Justia Law