Justia Military Law Opinion Summaries

Donnellan served in the National Guard from 1969 until 2000. In 1996, a portion of his sigmoid colon was removed as treatment for colon cancer. In March 1998, after diagnosis of acquired polyposis, he had a total colectomy. While on active duty for training in May-June 1998, he became ill and underwent emergency surgery to remove a portion of his small intestine because of a small bowel perforation. After surgery, his doctors treated a small bowel fistula. The DVA denied a service connection to ensuing complications. In 2007, the Board of Veterans’ Appeals denied benefits, finding by clear and unmistakable evidence that Donnellan’s disease and ensuing complications did not increase in severity beyond natural progression during his period of active duty for training. The Veterans Court remanded, holding that the statutory presumption of aggravation does not apply to an increase in the degree of a disability suffered by a member of the National Guard while on active duty for training who is not a veteran under 38 U.S.C. 101(2) and that his doctor’s medical opinion did not satisfy the Board’s instructions on remand. The Federal Circuit dismissed an appeal. The Veterans Court’s remand order is not a final decision. View "Donnellan v. Shinseki" on Justia Law

In 1992, at age 57, Navy veteran who served on active duty during the Korean Conflict began receiving pension benefits under 38 U.S.C. 1521(a) for non-service connected disabilities. He had a combined disability rating of 80% based on prostate cancer, osteoarthritis of both knees, glaucoma/cataracts, hypertension, hyperthyroidism, and major depressive disorder. The disabilities rendered him "permanently and totally disabled." In 2006, he applied for an enhanced pension under the special monthly rate (38 U.S.C. 1521(e)), seeking consideration for housebound status because he was older than 65 years of age and had a disability rating of more than 60%. The regional office denied the claim because he had received a pension under section 1521 before turning 65. The Board of Veterans’ Appeals denied an appeal. The Veterans Court reversed and remanded. The Federal Circuit reversed and remanded, overruling Veterans Court’s interpretation of 38 U.S.C. 1513(a) in Hartness v. Nicholson (2006). Veterans applying for special monthly pension benefits under section 1521(e) should be on equal footing regardless of when they apply for a pension, i.e., whether the veteran applies before or after turning 65 years old.View "Chandler v. Shinseki" on Justia Law

Federal employees are entitled up to 15 days each year of military leave to attend training as a member of a reserve of the armed forces or National Guard. 5 U.S.C. 6323(a)(1). The Federal Circuit held that federal agencies cannot charge military leave on non-workdays. Duncan worked as a civilian for the Air Force until his retirement in 2005. From 1980 to 1998, he was also in the Air Force Reserve and performed 12 days each year of active duty plus additional duty for training. In 2009, he filed a claim with the Merit Systems Protection Board, alleging that the Air Force had charged his leave on non-workdays in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, seeking compensation for six days. An Administrative Law Judge granted the request, finding Duncan's recollection credible. The Board reversed, holding that it requires more than personal recollection and reliance on military documents. The Federal Circuit affirmed. The record did not show that all corroborating evidence was unavailable. View "Duncan v. Dep't of the Air Force" on Justia Law

The veteran served in Vietnam in the 1960s. He was honorably discharged and received service connection compensation for arthritis and hearing loss. In 1993, he had a malignant melanoma surgically removed; it continued to spread and he died in 1994. The surviving widow filed an Application for Dependency and Indemnity Compensation alleging that her husband’s death was service connected due to exposure to Agent Orange and extensive sunlight while serving in Vietnam. The Regional Office denied the claim. In 2004, she filed the current claim and submitted an internet article discussing an Air Force study that found an elevated risk of melanoma in veterans who were exposed to Agent Orange. The Board reopened and remanded the claim. On remand, a VA medical examiner determined that it was "at least as likely as not" that the melanoma was causally related to active duty service. The RO again denied the claim.. The Board affirmed. The Veterans Court vacated and remanded. The Federal Circuit dismissed an appeal for lack of jurisdiction, finding that there was no final decision.View "Ebel v. Shinseki" on Justia Law

A widow alleged that her husband developed cancer due to exposure to radiation while he was serving on active duty. Based on regulations that presume causation for certain diseases, the Board of Veterans' Appeals awarded service connection with an effective date of 1988. The Board did not determine whether she established a direct service connection that was not based on the presumptions. The Veterans Court remanded for such findings. The Federal Circuit affirmed, rejecting the widow's argument that the evidence in the record supported reversal and an earlier effective date. View "Byron v. Shinseki" on Justia Law

In 2009, plaintiff applied for an IT specialist position with the Miami VA Healthcare System. He did not get the job and, after exhausting rights before the Department of Labor, filed an appeal, asserting that the VA violated his rights relating to veteran's preference. The AJ concluded that the Merit Systems Protection Board had no authority to review the merits of the VA’s non-selection of plaintiff. The Board agreed. The Federal Circuit vacated. There is no way to determine whether the Veterans' Preference Act (58 Stat. 390) has been violated without examining the grounds for non-selection. The Board has jurisdiction to determine whether the VA properly afforded plaintiff the right to compete for the job and properly determined, in accordance with 5 C.F.R. § 302.302(d), that he was not qualified for the position View "Lazaro v. Dep't of Veterans Affairs" on Justia Law

Organizations challenged a rule issued by the Secretary of Veterans Affairs (amending 38 C.F.R 3.304(f)) with respect to claims for service-connected disability benefits for post-traumatic stress disorder. The new rule: allows a veteran to establish PTSD without supporting evidence; applies the lower evidentiary standard only if a VA psychologist or psychiatrist, or one contracted with the VA, confirms the claimed-stressor supports the diagnosis; and defines the veteran’s "fear of hostile military or terrorist activity" as involving a response characterized by "a psychological or psycho-physiological state of fear, helplessness, or horror." The Federal Circuit upheld the rule as not violating the statutory requirement that the Secretary consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. There is a rational basis for the distinction between private practitioners and VA associated practitioners. View "Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y Veterans Affairs." on Justia Law

The veteran, discharged in 1966, suffered service-related loss of use of an arm and both legs and injuries to buttocks, thighs, hips, and torso. In 1967 a regional office awarded compensation at the total disability rate (38 U.S.C. 314(j) (now 1114)), additional special compensation at the rate between subsections (l) and (m), and under subsection (k); it did not award aid and attendance because then-law required a special compensation rating of (o). In 1970, the office awarded special compensation under subsections (m) and (k), retroactive to 1966. With changes in the law, his rating increased to (n). A 1979 amendment provided that a veteran is eligible for a&a if rated under subsection (o) or between (n) and (o) and under (k). In 1992, the office granted service connection for a seizure disorder. This qualified for a full-step increase to (o) (38 C.F.R. 3.350(f)(4)), and the veteran was awarded a&a effective 1991, the date of the diagnosis. The Board refused to assign an effective date before 1991. On second remand the Veterans Court affirmed the Board's rejection of a claim concerning a&a for the injuries assessed in 1966. The Federal Circuit affirmed, characterizing the claim as disagreement with the regional office's factual findings. View "Pimentel v. Shinseki" on Justia Law

Plaintiff's husband served in the U.S. Army, 1958-1959, and was discharged due to rheumatic heart disease. The Board of Veterans' Appeals denied a claim for service-related benefits in 1959 and denied subsequent claims. In 1985, husband died of an acute myocardial infarction. The Board denied plaintiff dependency and indemnity compensation, 38 U.S.C. 1310. In 1992, plaintiff sought to reopen the 1986 decision. The request was denied in 1999; the Veterans Court affirmed in 2002. The Federal Circuit remanded, holding that the government failed to rebut the presumption of soundness, 38 U.S.C. 1111 with evidence that husband's heart disease was not aggravated by his military service. On remand, the Veterans Court affirmed the denial on alternate grounds; the Federal Circuit again remanded. Plaintiff's claim was then granted and she sought attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. 2412. The Veterans Court denied the claim, finding that the VA's position was supported by then-existing precedent. The Federal Circuit reversed. The Veterans Court failed to consider all of the factors surrounding the erroneous denial, particularly that the government had adopted an interpretation of section 1111 that was unsupported by the plain language of the statute or legislative history. View "Patrick v. Shinseki" on Justia Law

In 1996 petitioner, who had served in the Marine Corps from 1965 to 1968, filed a claim for compensation for post-traumatic stress disorder. The VA Regional Office granted the claim and assigned a disability rating of 30%, effective October 1996. Petitioner requested an increase in the percentage and made multiple submissions before 2000, when the Office increased the rating to 70%, effective July 1999. The Veterans Court affirmed as to the rating, but remanded with instructions for assigning an effective date. On remand, the Board found that a February 1998 submission met the requirements for an informal claim for TDIU and assigned an effective date of February 11, 1998 that was affirmed by the Veterans Court. The Federal Circuit vacated. To comply with the directive of 38 C.F.R. 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, the VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim; the VA failed to make such a determination. View "Bond v. Shinseki" on Justia Law