Justia Military Law Opinion Summaries

Conyers and Northover were indefinitely suspended and demoted, respectively, from their positions with the Department of Defense after they were found ineligible to occupy “noncritical sensitive” positions. The Department argued that, because the positions were designated “noncritical sensitive,” the Merit Systems Protection Board could not review the merits of the Department’s determinations under the precedent set forth in Navy v. Egan, 484 U.S. 518 (1988). The Board held that Egan limits review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The Federal Circuit reversed and remanded. Egan prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information. View "Berry v. Conyers" on Justia Law

Thompson served in the Navy from October 1973 to January 1975. During active service, he was treated for psychiatric symptoms, attributed to immature personality disorder. Over the following years, he was hospitalized sporadically based upon complaints of a nervous disorder and an inability to get along with others. In 1984 he was diagnosed as a paranoid schizophrenic. He was hospitalized for schizophrenia several times between 1984 and 1991. In 2006, a VA Regional Office issued a rating decision finding no service connection with respect to any acquired psychiatric disorder. Before the Veterans Court reached the merits of an appeal, the parties filed a joint motion for partial remand citing a 2009 intervening decision. The motion was granted. Thompson then moved for attorneys’ fees and costs. The Veterans Court denied the motion, holding that he was not a prevailing party under the Equal Access to Justice Act, 28 U.S.C. 2412(d). The Federal Circuit affirmed. View "Thompson v. Shinseki" on Justia Law

Reeves served as a heavy mortar crewman during combat offensives, 1942-1945, and was awarded three Bronze Stars. In 1981, Reeves filed a claim seeking service-connected disability benefits, with a medical opinion, stating that Reeves had bilateral, nerve-type hearing loss in 1962, attributable to noise exposure or to treatment with quinine for malaria. He also submitted records of an audiogram and statements from officers with whom he had served. The board denied the claim, stating that hearing loss documented in 1962 was too remote from active service. Reeves did not appeal. In 2004, the board granted an application to re-open, citing new evidence of treatment from 1946 to 1954, and awarded him service-connected disability benefits, effective 2002. In 2006, Reeves sought revision to an earlier effective date. The board denied the motion. The Veterans Court affirmed, rejecting an assertion that the evidence of record in 1983 was such that the board had no choice but to resolve in his favor that his hearing disability was incurred in service. Reeves died in 2011; the Federal Circuit substituted his widow and reversed. The Veterans Court misinterpreted 38 U.S.C. 1154(b) in rejecting the clear and unmistakeable error claim. View "Reeves v. Shinseki" on Justia Law

Duchesneau served on active duty in the Army, July 1996 to January 1999. In 2000, a VA Regional Office granted service connection for her right shoulder bursitis with a 10 percent disability rating. In 2003 she sought an increased disability rating, but the RO denied her claim. The Board affirmed. The veterans' court rejected her claim for two separate disability ratings under a single diagnostic code, set aside the Board's decision as to a single appropriate disability rating under DC 5201 and remanded to the Board to clarify the precise extent of her right shoulder limitation. The Federal Circuit rejected an appeal for lack of jurisdiction, stating that the veterans' court decision was not a final judgment. View "Duchesneau v. Shinseki" on Justia Law

Morris served on active duty for two months in 1964. His entrance examination and examination upon separation revealed no psychiatric abnormality. In 1966 Morris sought disability compensation for a psychiatric disorder, claiming that in basic training, he had suffered abuse from his sergeant, which caused him to experience nervous breakdown. The VA Regional Office denied the claim. In 1986, the RO concluded that additional evidence did not constitute new and material evidence. Following another denial, Morris presented evidence that he had been diagnosed with schizophrenia and a VA physician's opinion that it had its onset during service. The Board denied the claim. On remand in 1992, the Board concluded that evidence supported the claim but that its 1988 decision was final. In 1993, the RO awarded service connection for schizophrenia effective from 1987. In 1996, the Board denied a claim that the award should be retroactive to 1966. The Veterans Court rejected an argument that the 1988 Board failed to apply correctly 38 U.S.C. 105(a), 1110, and 1111, noting no evidence that the Board incorrectly considered his condition a personality disorder. The Federal Circuit affirmed. Under 38 C.F.R. 3.303(c), personality disorders are not diseases or injuries within the meaning of 1110 and are not compensable. View "Morris v. Shinseki" on Justia Law

Plaintiff, a Naval Criminal Investigative Service engineer since 1984, agreed to a transfer in 2002. The transfer was delayed because of her mother’s poor health. Shortly before the transfer was to occur, she voluntarily responded to a summons to act as a grand juror. The Navy paid her while she served as a grand juror (5 U.S.C. 6322(a)), but ordered her to report to Washington year later and directed her not to seek or accept extension of her grand jury duties. She nonetheless was sworn in for a second term. The Navy declared her to be AWOL, the Merit Systems Protection Board dismissed an appeal, and she was terminated from her employment. The claims court granted summary judgment in favor of the government on pre-removal back pay claim and dismissed, for lack of subject matter jurisdiction, her post- removal claims for back pay, reinstatement, and other forms of compensation. The Federal Circuit reversed in part, holding that the claims court erred in interpreting 5 U.S.C. 6322(a), which entitles a grand juror to court leave when "summoned," regardless of whether the grand juror volunteered to be summoned. View "Hall v. United States" on Justia Law

Petitioner served in the Army for about 30 months, 1981-1983 and suffered injury to her knees and wrist. The VA regional office assigned a 10 percent rating to her left wrist with an effective date of 1986. In 1987, her right arm was injured as a result of medical care she received from the VA. In 1990, her injury to right knee and shoulder were each rated at 20 percent and her left knee at 30 percent. In 1996, she was unable to continue working as a bookkeeper and brought a claim for total disability based on individual unemployability. The regional office rated her service-connected disabilities at 70 percent, but denied a total rating based on unemployability under 38 C.F.R. 4.16(a). The regional office and Board of Veterans’ Appeals rejected her 2004 application for review. The Secretary conceded that the regional office committed error by incorrectly computing petitioner’s rating. The Veterans Court found no “clear and unmistakeable error” and that the error was harmless because the RO had made an unemployability determination that satisfied the requirements for a 4.16(a) analysis. The Federal Circuit dismissed for lack of jurisdiction because there was no issue of the interpretation of 4.16(a)View "Githens-Bellas v. Shinseki" on Justia Law

In 2004, the Army awarded Parsons the prime contract for work in Iraq. The contract incorporated Federal Acquisition Regulations (FAR), for reimbursement of sub-contractor costs. Parsons entered into a subcontract with Odell for health care facilities and medical equipment. After the Army terminated task orders for convenience, Odell attempted to collect reimbursement above the amount determined by the Defense Contract Audit Agency as its provisional indirect cost. Settlement for termination of the prime contract did not address the issue. Following an audit, Parsons submitted Odell’s revised invoice to the termination contract officer, who stated that it would not settle directly with Odell under FAR 49.108-8 because it was not in the best interest of the government. Parsons submitted a sponsored Certified Claim under the Contract Disputes Act on behalf of Odell to the Procurement Contracting Officer, who denied the claim. The Armed Services Board of Contract Appeal held that the request was routine and, under 48 C.F.R. (FAR) 2.101, needed to be in dispute to constitute a claim over which it had jurisdiction. The Federal Circuit affirmed. Parsons made no argument that its request was in dispute. The record did not indicate that the PCO ever received a proper request for payment.View "Parsons Global Servs., Inc. v. McHugh" on Justia Law

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