Justia Military Law Opinion Summaries

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

Petitioner served in active military duty from 1972 to 1979, and in the National Guard before and after active service. He also worked as a laborer in a supply company and in coal mines and as a carpenter. In 1997, he claimed entitlement to TDIU, which provides a veteran with a total disability rating when his disability rating is below 100% if the veteran is at least 60% disabled, meets other disability rating criteria, and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 1 C.F.R. 4.16(a). The VA rejected the claim and, on three remands, petitioner underwent a total of five VA medical examinations. In 2007, the Board denied the claim. The Veterans Court and Federal Circuit affirmed. The VA was not obligated to obtain an industrial survey from a vocational expert in order to evaluate whether petitioner was employable in a job other than his former occupation (i.e., a job that did not involve heavy manual labor). View "Smith v. Shinseki" on Justia Law

The World War II veteran died in 2004, during litigation of whether a hip injury was service-related. The VA dismissed a pending appeal as moot and rejected the widow's request to be substituted. The Federal Circuit reversed. The widow filed her own claim for accrued benefits. The motion to substitute was denied, but the widow was awarded accrued benefits and sought $87,802.17 in attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. 2412. The veterans' court determined that the widow had the right, as representative of the estate, to recover fees for attorney hours expended prior to his death, but had no right to recover fees for work performed after her husband’s death. The Federal Circuit reversed, stating that attorney work performed after the veteran's death was directly related to his claim; it was his claim, not the widow's claim, that was being litigated. View "Padgett v. Shinseki" on Justia Law

In 1968, petitioner sustained a gunshot wound to his thigh. In 1995 he was granted service connection for the thigh wound, shrapnel wounds on forehead, and post-traumatic stress disorder. Petitioner appealed the rating, referring to pain and the inability to stand. The Veterans' Court remanded for an examination to determine muscle injury. The rating did not change; the board and the court affirmed, rejecting an argument that a change in diagnostic code to represent an injury to a different muscle group was an impermissible severance of service connection under 38 U.S.C. § 1159, which provides that service connection in force for ten or more years shall not be severed, except upon proof of fraud or that the veteran did not have the requisite service or discharge. The Federal Circuit affirmed, reasoning that a diagnostic code is most similar to the level of disability element of a claim for benefits and is not protected by the statute. The disability remains the same and remains service-connected. View "Read v. Shinseki" on Justia Law

The veteran, active in the Navy 1968-1971, reported traumatic events during a 1991 psychiatric evaluation. In 1993-1994 he sought benefits for post-traumatic stress disorder, again reporting an incident involving the death of a friend. In 1999 the VA awarded 100% disability, effective as of 1993. The veteran's complaints about how his claim was handled led to an OIG inspection in 2004, which disclosed that the veteran was not present at the accident that killed his friend. The veterans' court upheld a decision to severe benefits on the basis of fraud. The veteran had already receive about $320,000 and was subsequently convicted of fraud and sentenced to 48 months in prison and ordered to pay restitution. The federal circuit affirmed the veterans' court. The veteran had only claimed one stressor, so the VA was not required to investigate other possible stressors before terminating benefits. The VA properly followed its own procedures after determining that the matter exceeded the jurisdictional cap under the Program Fraud Civil Remedies Act, 31 U.S.C. 3801. The Act is not an exclusive remedy and the veteran was afforded due process.