Justia Military Law Opinion Summaries

Petitioner served 26 years in the U.S. Army. Following his discharge, he began working in a civil service position as a maintenance management specialist for the Department of the Navy. His appointment was subject to completion of a one-year probationary period. Petitioner had no previous federal civilian service. Before expiration of the probationary period, the agency notified petitioner that he would be terminated from his position for unacceptable performance. He sought to appeal to the Merit Systems Protection Board. The administrative judge found that petitioner had no statutory right of appeal to the Board and that, as a probationary employee, petitioner's rights before the Board were limited to those defined by OPM regulations allowing appeal only if the termination was based on partisan political reasons or was the result of discrimination based on marital status, 5 C.F.R. 315.806(b). The Board rejected petitioner's claim that his military service should count toward completion of the one-year period of continuous service needed to qualify for Board review. The Federal Circuit affirmed, holding that petitioner did not qualify as an employee within the meaning of 5 U.S.C. 7511(a)(1)(A). View "Wilder v. Merit Systems Protection Board" 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

Plaintiff is a veteran with a service-connected disability rated at 80 percent, which makes him a "preference eligible" veteran, 5 U.S.C. 2108(3)(C). He applied for attorney positions at the Social Security Administration and at the U.S. Attorney's Office, informing both that he was a preference eligible veteran. Both agencies selected other applicants, at least one of whom was not preference eligible. He filed complaints with the Department of Labor. The agencies concluded that 5 U.S.C. 3320 did not apply to require that agencies "file written reasons" and receive permission from the Office of Personnel Management if they pass over a preference eligible who is among the highest three eligibles available for appointment on a certificate furnished by OPM. The Board agreed that attorneys are exempt from any examination or rating requirements. The Federal Circuit affirmed. The Board properly concluding that the agencies were exempt from the procedures and were not required to file written reasons with OPM and seek permission before selecting other candidates. View "Jarrard v. Dep't of Justice" 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