Justia Military Law Opinion Summaries

Burkhart is the widow of U.S. Army veteran David, who served honorably in the Korean War. He had no service-connected disabilities. In the late 1990s, he was admitted to a VA nursing facility, where he died. Burkhart filed a claim for dependency and indemnity compensation (DIC) benefits under 38 U.S.C. 1151, which provides for compensation related to the death or injury of a veteran in certain circumstances while the veteran was under VA care “as if such additional disability or death were service-connected.” Having determined that David’s death was due to an event “not reasonably foreseeable,” the VA granted DIC benefits.In 2007, Burkhart obtained a certificate of eligibility (COE) for home loan guaranty benefits available under chapter 37 but never finalized a loan. In 2013, she requested a new COE for a guaranty. The VA determined that she was ineligible. The Board of Veterans’ Appeals found that home loan guaranty benefits are available only to “the surviving spouse of any veteran . . . who died from a service-connected disability,” 38 U.S.C. 3701(b)(2). The Veterans Court affirmed, requesting requests for equitable relief. The Veterans Court reasoned that an “incontestability provision” (section 3721) gives only lenders receive the privilege of estoppel with respect to COEs. The Federal Circuit affirmed. Burkhart is not eligible for home loan guaranty benefits under any of the cited statutes and the Veterans Court lacked the power to grant her equitable relief. View "Burkhart v. Wilkie" on Justia Law

Lang served in the Marine Corps in 1966-1968 and was badly injured in Vietnam. Lang sought psychiatric treatment at the Pittsburgh VA Medical Center. In 1995, an examiner explained: [T]he Veteran from a physical standpoint is permanently and totally disabled from any type of gainful employment [and] is also socially handicapped to a severe degree . . . . He has a very severe form of PTSD that he has treated himself with alcohol abuse... not to mention the horrendous physical deformities. Lang was granted a 10% disability rating in 1996. Lang did not appeal but continued to receive treatment.In 2014, Lang moved to revise the 1996 rating, citing clear and unmistakable error (CUE). The Veterans Court affirmed the denial of Lang’s request for an adjustment, stating that Lang failed to prove that the “VA had sufficient knowledge of the VA treatment records . . . to trigger the Board’s duty to make the requested findings.” The Federal Circuit vacated. Lang’s post-decision medical records were constructively received by the VA adjudicator before the expiration of the one-year appeal period. A claim remains open until the VA determines whether post-decision evidence received within the one-year appeal period is “new and material.” The Board made no such determination as to Lang’s post-decision medical records, so the 1996 rating decision was not final and a CUE analysis was not required. View "Lang v. Wilkie" on Justia Law

Kisor served in the Marine Corps, 1962-1966. In 1982, he sought disability compensation benefits for PTSD. A 1983 psychiatric examination noted Kisor's combat experiences in Vietnam. The examiner expressed his “distinct impression” that Kisor suffered from “a personality disorder as opposed to PTSD,” which cannot be a basis for service connection. Kisor did not pursue an appeal. In 2006, Kisor submitted a request to reopen and presented a 2007 report of a psychiatric evaluation diagnosing PTSD. He was granted a 50% rating. The Veterans Court and Federal Circuit affirmed that Kisor was not entitled to an effective date earlier than 2006.On remand from the Supreme Court, the Federal Circuit again affirmed. In the setting of 38 C.F.R. 3.156(c)(1), for purposes of reconsideration of the 1983 denial, the term “relevant” is not “genuinely ambiguous” and “Auer deference” is not appropriate. In the context of section 3.156(c)(1), “relevant” has only “one reasonable meaning.” As the Board determined, under the regulation, to be “relevant,” a record must speak to a matter in dispute. Service department records received in 2006 and 2007 were not “relevant” under the regulation because they did not pertain to the basis of the 1983 denial of Kisor’s claim, which was the lack of a diagnosis of PTSD. View "Kisor v. Wilkie" on Justia Law

While serving in the Navy 1968-1970, Simmons experienced feelings of depression and homesickness. A VA physician diagnosed Simmons with situational depression but no permanent disability. Another VA physician diagnosed him with immature personality disorder and recommended he be discharged. In 1972, the VA awarded Simmons a non-service-connected pension on his polyarthritis claim. In 1974, Simmons sought additional compensation, asserting that his arthritis was service-connected and that he also had a nervous condition that justified compensation. The VA denied the claim. In 2005, after receiving a total disability rating for an unrelated asbestosis-based claim, Simmons claimed that there was clear and unmistakable error (CUE) in the 1974 decision, with respect to the denial of service connection, citing the presumptions of soundness and service connection in 38 U.S.C. 105(a) and 1111.The Board found that Simmons’s current psychiatric disorder was due to his non-service-connected arthritis and that the presumptions did not apply. The Veterans Court affirmed, finding that although the Board erred in analyzing the presumptions, that error was harmless because Simmons’s current disability was not causally related to his in-service condition. The Federal Circuit affirmed, rejecting an argument that a failure to apply an evidentiary presumption is per se prejudicial. A per se rule of prejudice for failure to apply the presumptions would undo any proper VA finding that the claimant had failed to establish a causal nexus. View "Simmons v. Wilkie" on Justia Law

While serving in the Navy, 1972-1073, Merritt sustained a concussion in an automobile accident. In 2006, a VA psychologist prepared a note. stating that Merritt had “[s]ymptoms of bipolar disorder[, which] first began ... on active duty,” and that Merritt’s “work performance began to suffer” after the in-service accident. In 2010, Merritt sought disability benefits for bipolar disorder, anxiety, and personality disorders. The Board determined that Merritt’s psychiatric disorders were not service-connected, relying solely on an independent medical expert opinion. On remand, the Board again denied Merritt’s claim, stating that the VA psychology note was entitled to little probative weight, apparently because there was no evidence that the VA psychologist had access to Merritt’s records, and there was a discrepancy between that note and Merritt’s treatment records as to the length of time that Merritt was unconscious following the automobile accident. The Veterans Court affirmed, finding the Board’s error in not following the remand order harmless because the VA note “described no symptoms that . . . supported . . . a retrospective diagnosis” of bipolar disorder, and “there [was] no possibility that the Board could have awarded service connection based on [the note].”Merritt died; Mrs. Merritt was allowed to substitute herself as the surviving spouse. The Federal Circuit subsequently dismissed her appeal as moot. Mrs. Merritt did not preserve her claim by filing a formal claim with the VA within one year of Merritt’s death as required. View "Merritt v. Wilkie" on Justia Law

Sellers served in the Navy in 1964-1968, and in the Army, 1981-1996. He suffers from major depressive disorder (MDD). Sellers has a 2009 effective date for his disability benefits. He seeks an effective date of March 1996, the date of his formal claim seeking compensation for specific injuries to his leg, knee, back, finger, and ears. On his application, under “Remarks,” Sellers wrote “Request for s/c [service connection] for disabilities occurring during active duty service.” Sellers contends that the law in effect in 1996 requires his remarks to be understood as a claim for compensation for his MDD, although his claim in no way refers to MDD. The Veterans Court agreed with Sellers. The Secretary of Veterans Affairs challenged that decision.The Federal Circuit reversed, finding that Sellers is not entitled to an earlier effective date. A legally sufficient formal claim must identify, at least at a high level of generality, the current condition upon which the veteran’s claim is based. The Secretary’s duty to assist begins upon receipt of a formal claim that identifies the medical condition for which benefits are sought, which triggers the Secretary’s duty to obtain the veteran’s medical records, 38 U.S.C. 5103A(c)(1)(A), and then to fully develop the stated claim. Until the Secretary comprehends the condition on which the claim is based, the Secretary does not know where to begin to develop the claim. View "Sellers v. Wilkie" on Justia Law

Jones served on active duty with the Army in 1967-1974 and in the Army National Guard in 1987-1990. In 1994, he sought disability benefits for a nervous disorder and a leg wound. A VA regional office granted service connection for a leg scar but found that disability non-compensable and denied the claim for a nervous condition. Jones did not appeal. In 2002, Jones filed a request to reopen his claim, asserting that he was assaulted by muggers while stationed in Germany, which resulted in his developing PTSD. The regional office denied his request. In 2008, the Board of Veterans’ Appeals granted the request to reopen, directing the regional office to obtain additional information from two individuals with knowledge of the assault. In 2010, the regional office granted Jones service connection for PTSD and a schizoaffective disorder, with a 100% disability rating effective from October 2002, when he sought to reopen his claim. Jones sought to have the effective date made retroactive to 1994. In 2016, after Jones’s death, the Board held that the effective date was 2002. The Veterans Court and the Federal Circuit affirmed, citing 38 C.F.R. 3.156(c); the decision in Jones’s favor was based on evidence created in 2003 and 2008, which did not exist in 1994. View "Jones v. Wilkie" on Justia Law

Carr served Air Force active duty, 1976-1980, earning 45 months of education benefits under Chapter 34 (Vietnam-era GI Bill), Carr used 41 months and 11 days of those benefits for his own education before the entire Chapter 34 program expired. After September 11, 2001, Carr returned to active duty and would have been eligible for 36 additional months of benefits under Chapter 33 (Post-9/11 GI Bill), but 38 U.S.C. 3695 limited him to a cumulative total of 48 months. Carr transferred those benefits to his daughter, 38 U.S.C. 3319, who used paid for two semesters. Due to a VA error, she initially did not receive payments to cover the final days of the Fall 2010 semester and was informed, incorrectly, that she had exhausted her benefits. Later, it was discovered that she had 19 days of benefits remaining; one day was applied to the Fall 2013 semester. Chapter 33 permits extensions of education benefits “in a roundabout way” to the end of the semester, 38 C.F.R. 21.9635(o)(1). The regional office, the Board of Veterans’ Appeals, and the Veterans Court rejected Carr's Chapter 33 claim.The Federal Circuit reversed and remanded for consideration of the unaddressed regulatory challenge. . The Veterans Court resolved the appeal through statutory interpretation and did not address the transferred benefits regulation; 38 U.S.C. 3695(a)’s aggregate multi-program benefits cap does not preclude end-of-term extensions of benefits authorized under individual benefits programs. View "Carr v. Wilkie" on Justia Law

Babcock joined the Michigan National Guard in 1970 and became a dual-status technician “a Federal civilian employee” who “is assigned to a civilian position as a technician” while maintaining membership in the National Guard, 10 U.S.C. 10216(a)(1); 32 U.S.C. 709(e). Babcock served as a National Guard pilot, held the appropriate military grade, wore a uniform that displayed his rank while working, and attended weekend drills. In 2004-2005, Babcock was deployed to Iraq on active duty. Babcock received military pay for his active-duty service and his inactive-duty training, including weekend drills. Otherwise, he received civil pay and participated in the Civil Service Retirement System (CSRS), 5 U.S.C. 5301. Babcock paid Social Security taxes on the wages for his active-duty service and his inactive-duty training from 1988 onwards, 42 U.S.C. 410(l)(1). He did not pay Social Security taxes on his wages for inactive-duty training before 1988 or on his civil-service wages.In 2009, Babcock retired and began receiving monthly CSRS payments and separate military retirement pay. For several years after his retirement, Babcock flew medical-evacuation helicopters for hospitals. This private-sector income was subject to Social Security taxes. Babcock fully retired in 2014. The government reduced his Social Security benefits under the Windfall Elimination Provision (WEP) because of his CSRS pension. Babcock cited a WEP exception for payments “based wholly on service as a member of a uniformed service.” While Babcock's case was pending, the Eleventh Circuit rejected the Eighth Circuit’s contrary analysis and held that the uniformed-services exception does not apply to dual-status technicians. The Sixth Circuit subsequently agreed that a federal civil-service pension based on work as a National Guard dual-status technician does not qualify as “a payment based wholly on service as a member of a uniformed service.” View "Babcock v. Commissioner of Social Security" on Justia Law

Attorney Ravin represented veteran Cook on a claim for past-due disability benefits. Their agreement provided for a contingent fee and contemplated that VA would withhold the fee from any past-due benefits awarded and pay that amount directly to Ravin under 38 U.S.C. 5904(d)(3). Within days of executing that agreement, Ravin sent a copy to the Board of Veterans’ Appeals, where it was date-stamped on December 11, 2009. No copy of the agreement was submitted to the Regional Office (RO) “within 30 days of the date of execution,” as required by 38 C.F.R. 14.636(h)(4). The RO awarded Cook past-due benefits in April 2010. On April 13, 2010, the RO’s Attorney Fee Coordinator searched for any attorney fee agreement and determined that “no attorney fee decision is required” and “[a]ll retroactive benefits may be paid directly to the veteran.” The RO paid the past-due benefits to Cook. On April 27, 2010, Ravin mailed a copy of Cook’s direct-pay fee agreement to the RO. The RO informed Ravin that it had not withheld his attorney’s fees because the agreement was “not timely filed.”The Veterans Court and Federal Circuit affirmed the Board’s denial of Ravin’s claim. Section 5904(d)(3) does not mandate withholding and direct payment; 38 C.F.R. 14.636(h)(4)'s submission requirement is valid. Ravin’s fees have not been forfeited; he may use all available remedies to obtain them from Cook, per their agreement. View "Ravin v. Wilkie" on Justia Law