Justia Military Law Opinion Summaries

A veteran was employed by the Navy. Terminated in 1994, he filed an EEOC complaint. In a 1995 settlement agreement, the Navy agreed to remove from the Official Personnel Folder adverse performance evaluations; to remove records of disciplinary action; and to document that he had resigned for personal reasons. In 1996, plaintiff discovered that the Navy had not complied and filed another complaint. In a 1996 agreement, the Navy agreed to employ plaintiff and to document that he had resigned in 1994. In 1998 plaintiff was accused of stealing and suspended. He filed a third EEOC complaint, then was accused of threatening a crew member. After being notified of his proposed removal, plaintiff resigned. Under a 2001 settlement, the Navy agreed to pay plaintiff $1,000, to expunge the suspension, and to provide a neutral reference. Records obtained in 2006 indicated that the Navy had not documented that he resigned for personal reasons. In 2008, he filed suit. The district court dismissed, for lack of jurisdiction, breach of contract claims under the Tucker Act, 28 U.S.C. 1491(a)(1). The Federal Circuit reversed. The agreements can fairly be interpreted as mandating payment of money damages for breach by the government, subject to Tucker Act jurisdiction. The claims were not time-barred because plaintiff was entitled to benefit of the accrual suspension rule. View "Holmes v. United States" on Justia Law

The class action alleged that National Guard members were required to take correspondence courses to keep positions or advance in rank and sought compensation for time spent on the courses. At the time, 37 U.S.C. 206 provided for compensation for: "equivalent training, instruction, duty, or appropriate duties, as the Secretary may prescribe . . . . This section does not authorize compensation for work or study performed by a member of a reserve component in connection with correspondence courses of an armed force." The Federal Circuit reversed dismissal. Meanwhile, Congress amended 37 U.S.C. 206(d), retroactively clarifying that National Guard members would not be compensated for correspondence courses. Plaintiffs amended their complaint to add a claim that retroactive application of these amendments amounted to taking of vested rights. The district court granted the government summary judgment. The Federal Circuit affirmed. The earlier remand was not a holding that plaintiffs were entitled to compensation. The trial court had authority to consider and acted within its discretion in finding that none of the plaintiffs received written orders or authorizations from state commanders in connection with correspondence courses, so none were placed in a duty status necessary for federal payment. View "Clark v. United States" 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.

Records indicate that the veteran's knee was injured in 1949 while he was playing football with a military team. Treatment at a field hospital in Germany included x-rays that revealed no bone or joint injury. The knee was not treated again until 1999, when the veteran claimed service-related disability. X-rays at a VA clinic showed minimal degeneration consistent with osteoarthritis. On remand, for the VA's failure to assist the veteran, instructions to the VA hospital stated "NO EXAM" and indicated a file review, but did state that an exam was allowable if necessary. The Veterans' Court upheld a second denial of benefits. The Federal Circuit affirmed; the Veterans Court acted correctly in not requiring the Board to state reasons why the medical examinersâ reports were competent and sufficiently informed. The court noted that the veteran did not raise his concerns about the instructions with the Board and that it cannot review a challenge to a law or regulation as applied to the facts of a particular case under 38 U.S.C. 7292.

The petitioner joined the Air Force in 1979 and, after being denied promotion twice, was discharged from active duty in 1989. The Deputy for Air Force Review Boards eventually agreed to void a substandard officer effectiveness report in her record. After the petitioner's separation from active service, the Special Selection Board reconsidered the record and did not recommend promotion. After several requests, the Air Force reinstated the petitioner to active duty in 1995 and promoted her to major, with a date of rank of 1988. After again being denied promotion twice, she applied for direct promotion in 2002, arguing that one of her evaluations was prepared by an officer she had reported for misconduct and that the break in service deprived her of an opportunity to develop a record to support promotion. Relief was denied. The petitioner was involuntarily retired in 2003. The Court of Claims rejected her suit. The Federal Circuit affirmed, stating that the Corrections Board thoroughly reviewed the claims and that the decision was not arbitrary.

The Department of Veterans Affairs disability rating schedule governs entitlement to compensation based on loss of earning capacity. The Veterans Court held that the petitioner, whose 100% disability rating is based on multiple disabilities, no one of which is rated at 100%, did not qualify under 38 U.S.C. 1114(s), which provides $320 in additional monthly compensation to a veteran with âa service-connected disability rated as totalâ if the veteran either has another independently rated disability or combination of disabilities rated at 60%, or is permanently housebound by reason of service-connected disability. The Federal Circuit affirmed. The use of the singular and plural terms was purposeful and intended to limit payment of the special monthly compensation to a veteran who has at least one condition that has been rated as totally disabling. The court rejected an argument based on a rule that allows the Secretary to rate the veteran as âtotally disabled based on individual unemployabilityâ even if a veteran does not qualify for a rating of 100%.

After the Board of Veteransâ Appeals denied the veteran's claim for service-connected benefits for a thyroid disorder, the Veterans Court vacated and remanded the case for reconsideration. The veteran sought fees of $11,710.57 for attorney work under the Equal Access to Justice Act, 28 U.S.C. 2412. The district court awarded $8,601.80 and denied a request for supplemental fees for time spent defending the original fee request. The Federal Circuit reversed and remanded. A veteran is entitled to attorney fees incurred throughout the litigation, including those incurred in preparation and defense of the fee application to the extent those fees are defensible; the veteran was partially successful in defending his original fee application.