Justia Military Law Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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Montelongo was a West Point student cadet, 1973-1977, then served in the Army 1977-1996, from which he retired. From June 21, 2001, to March 28, 2005, Montelongo served as a civilian presidential appointee in the Air Force. An Air Force human resources officer advised Montelongo that his time as a cadet could be “bought back” and credited toward an eventual civil service annuity under the Federal Employees Retirement System (FERS), 5 U.S.C. 8401–8479. Montelongo made the small payment to “buy back” his four years at West Point and, in 2017, applied for a FERS annuity. The Office of Personnel Management and the Merit Systems Protection Board concluded, and the Federal Circuit affirmed, that only his time as a presidential appointee (just under four years) counted as creditable civilian service. Montelongo did not satisfy the five-year threshold requirement for a FERS annuity. Montelongo’s cadet time was “military service” that was creditable service under 5 U.S.C. 8411(c)(1) but was not “civilian service” for which section 8410 sets a five-year minimum for annuity qualification. View "Montelongo v. Office of Personnel Management" on Justia Law

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Sharpe checked in aboard the USS Carl Vinson in 2006. The aircraft carrier was undergoing an overhaul and was uninhabitable. Sharpe was instructed to report to the Media Department in the Newport News complex. Sharpe regularly reported to this onshore location throughout his assignment. He never performed regular duties onboard the Carl Vinson nor did he “eat, work, live, stand watch or serve any punishment aboard" any ship. In 2007, a reporter contacted the Fleet Forces Public Affairs Office about Sharpe’s alleged involvement in “hate group activity.” Sharpe was ordered to report to his home while NCIS investigated. Sharpe was informed that the Commanding Officer intended to impose a non-judicial punishment; the CO issued a punitive letter of reprimand. Sharpe inquired about demanding a trial by court-martial. The CO cited the “vessel exception,” which denies the right of a service member “attached to or embarked in a vessel” to refuse a non-judicial punishment and demand a trial by court-martial, 10 U.S.C. 815(a). The Assistant Secretary of the Navy approved a recommendation to discharge Sharpe. Sharpe formally separated from the Navy in 2009. In 2012, Sharpe submitted a successful application for Correction of Naval Record, requesting reinstatement and that his naval record be corrected by removing documentation pertaining to his non-judicial punishment. The Federal Circuit affirmed the Claims Court’s determinations with respect to back payment of regular and special pay, allowances, allotments, compensation, emoluments, and other pecuniary benefits. View "Sharpe v. United States" on Justia Law

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A 1941 Executive Order, ordered into the service of the U.S. armed forces all of the organized military forces of the Philippines, a U.S. territory. Various Filipino military organizations and more than 100,000 members of the Philippine Commonwealth Army served the U.S. during World War II. After the war, Congress passed Surplus Appropriation Rescission Acts, 38 U.S.C. 107, providing that service in these Filipino military organizations “shall not be deemed to have been active military, naval, or air service.” Filipino veterans were not eligible for the same benefits as U.S. veterans. The American Recovery and Reinvestment Act of 2009, 123 Stat. 115, 200–02, established a $198 million fund to provide one-time payments to Filipino veterans: $15,000 for U.S. citizens and $9,000 for non-citizens. The statute required Filipino veterans to apply for this payment within one year of the statute’s enactment. The VA required that the relevant service department verify the veteran’s service. The VA treats the service department’s decision as conclusive, regardless of other evidence documenting service. The VA denied Cruz’s application because the Army certified that Cruz did not have service as a member of the Philippine Commonwealth Army, including recognized guerillas, as “he was not listed in the Reconstructed Guerilla Roster” The Federal Circuit reversed in part. The VA can generally rely on the service department’s determination in deciding eligibility for payment but, in this context, must give the veteran a meaningful opportunity to challenge his service record through the Army Board for Correction of Military Records. View "Dela Cruz v. Wilkie" on Justia Law

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While serving on a Navy aircraft carrier in 1969, Francway was hit by wind: “[t]he resulting fall caused him to injure his back.” He “was placed on bedrest for a week and assigned to light duty for three months.” In 2003, Francway filed a VA claim for service connection for his back disability. In 2003-2011, Francway was examined multiple times by an orthopedist and had his medical records separately reviewed by the orthopedist and an internist. They concluded that Francway’s current back disability was not likely connected to his 1969 injury. After multiple appeals and remands, Francway submitted new evidence from his longtime friend, attesting to Francway’s history of back disability. The Board again remanded, with instructions that Francway’s “claims file should be reviewed by an appropriate medical specialist” and that the examiner should reconcile any opinion with the statements from Francway's "buddy statement.” Francway was again examined by the orthopedist, who concluded that Francway’s symptoms were unlikely to be related to his injury but did not address the “buddy statement.” The internist reviewed Francway’s file and the “buddy statement,” and reached a similar conclusion. The Board concluded that there was insufficient evidence of a nexus between Francway’s 1969 injury and his current disability and that the VA had complied with the remand orders. The Veterans Court concluded that Francway had not preserved his claim that the internist who reviewed the “buddy statement” was not an “appropriate medical specialist” under the remand order. Francway had not challenged the examiner’s qualifications before the Board. The Federal Circuit affirmed, noting that the Board and Veterans Court properly apply a presumption of competency in reviewing the opinions of VA medical examiners. View "Francway v. Wilkie" on Justia Law

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NOVA challenged a 2017 Veterans Administration (VA) amendment to 38 C.F.R. 3.321(b)(1), confining the preexisting regulation (as interpreted by a 2014 Federal Circuit ruling) and authorizing the VA “[t]o accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability,” by adopting “an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability.” The regulation does not permit the VA to award extra-schedular disability compensation by considering the synergistic impact of multiple disabilities together. The Federal Circuit upheld the regulation. The VA’s explanation for the change was adequate; the regulation is not on its face arbitrary and capricious. It does not limit “extraschedular rating to a single service-connected disability” but provides for combining multiple disabilities, but not in the manner opponents prefer. The VA explained that the amendment is consistent with the agency’s historical interpretation of the regulation and its predecessors. The VA reasonably concluded that determination of an extra-schedular rating with respect to a single disability is likely to result in a more logical and consistent system of extra-schedular rating than one in which the decision-maker must determine on an ad hoc basis whether extra-schedular rating is appropriate for the synergistic effect of combined disabilities. View "National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs" on Justia Law

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Shea began serving in the Air Force in October 2006. Her pre-enlistment examination indicated a normal psychiatric condition. A January 2007 medical examination resulted in a diagnosis of an adjustment disorder with anxiety and depressed mood. Days later, Shea was struck by a truck while on base and sustained multiple physical injuries. Her subsequent medical records report anxiety, depression, and impaired memory. A medical evaluation board recommended that Shea be discharged. Shea was transferred to Dover Air Force Base, where her then-husband was stationed, to continue her treatment. A physical evaluation board determined in May 2007 that Shea’s pelvic fractures and transverse process fracture were unfitting conditions that were compensable and ratable but that her adjustment disorder with depression and anxiety was not separately unfitting nor compensable or ratable. In July 2007, Shea was discharged because of her physical disabilities. She sought benefits in October 2007. The VA granted benefits for her physical and psychiatric conditions, but rejected a request for a 2007 effective date for the psychiatric-disability benefits. The Veterans Court affirmed. The Federal Circuit vacated and remanded to allow the Veterans Court to articulate the correct legal standard in considering Shea’s October 2007 informal application for benefits. While a pro se claimant "must identify the benefit sought,” the identification need not be explicit and should be read in conjunction with other submissions and service treatment records. View "Shea v. Wilkie" on Justia Law

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Robinson became the Associate Director of the Phoenix Veterans Administration Health Care System in 2012, having started his VA career in 1987. Robinson was aware of scheduling issues, including that it often took more than 30 days for patients to receive new-patient appointments. In 2014, the Chairman of the U.S. House Committee on Veterans’ Affairs alleged that veterans died while on “secret” waitlists at the Phoenix VA. Based on an investigation by the Office of the Inspector General and the Department of Justice, Robinson’s removal was proposed for “failure to provide oversight.” The Deciding Official did not take action. Robinson remained on administrative leave for two years, returning to duty in January 2016. The Senate Committee on Veterans’ Affairs questioned why many senior executives were placed on paid leave instead of removed from office. In March 2016, a second proposal for Robinson’s removal issued. The Deciding Official sustained all charges. Robinson was removed. The Merit Systems Protection Board affirmed the removal, finding that Robinson was negligent in the performance of his duties and failed to provide accurate information to his supervisors but did not sustain a whistleblowing retaliation charge. The Federal Circuit affirmed the decision as supported by substantial evidence, rejecting Robinson’s claim that he was treated differently than other supervisors. Robinson had notice and a pre-termination opportunity to be heard. Robinson had a duty to ensure compliance with VA policy but the record demonstrated that he did not. View "Robinson v. Department of Veterans Affairs" on Justia Law

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Sucic served on active duty 1973-1979 and 1982-1984. In 2007, he was granted service connection for post-traumatic stress disorder (PTSD), effective January 2003. In 2008, Sucic requested an effective date of June 1992. After remand by the Federal Circuit, the Veterans Court entered judgment in June 2016 and issued its mandate in August 2016. Sucic died five days after the Federal Circuit’s mandate issued but before the Veterans Court vacated the Board’s decision. Sucic’s counsel did not notify the Veterans Court of his death until after the Veterans Court issued its mandate. Sucic’s counsel filed an unopposed motion to recall the Veterans Court’s judgment and remand decision and a motion to substitute Sucic’s three adult children as claimants. The Veterans Court concluded, and the Federal Circuit affirmed, that the non-dependent adult children were not eligible accrued benefits beneficiaries under 38 U.S.C. 5121(a), qualified for substitution. View "Sucic v. Wilkie" on Justia Law

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While serving in the Navy, Scott developed a bilateral foot disability caused by prolonged standing. In 1973, the VA Regional Office (RO) awarded Scott service connection for bilateral pes planus (flatfoot) and granted him a 0% disability rating under DC (diagnostic code) 5276. In 1990, the RO added to Scott’s service connection hallux valgus deformity (angulation of the big toe toward the other toes) without altering his rating. In 2007, a VA medical examiner diagnosed Scott with plantar fibromas (masses of fibrous tissue in the arch of the foot) in addition to his prior diagnosis. The RO continued Scott’s 0% disability rating. In 2014, the RO increased Scott’s disability rating to 30%; the decision did not mention Scott’s plantar fibromas. In 2016, the Board of Veterans’ Appeals increased Scott’s disability rating to 50%, but did not address the effect of Scott’s plantar fibromas on his rating, finding that Scott was entitled to the rating “under DC 5276 . . . for [his] bilateral pes planus” under the benefit of the doubt rule, 38 U.S.C. 5107(b). The Board concluded that DC 5284, which broadly covers “Foot injuries, other,” without identifying any specific condition, was inapplicable because the service-connected condition, pes planus, is specifically listed. The Veterans Court affirmed. The Federal Circuit vacated. The Veterans Court improperly affirmed based on rationales the Board never provided; the Board erred by failing to consider DC 5284. Foot conditions not specifically listed in the rating schedule may be rated by analogy under DC 5284. View "Scott v. Wilkie" on Justia Law

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Ruel served in the Marine Corps, 1966-1969, including two tours in Vietnam; he was exposed to Agent Orange. He died in 1984. His wife, Teresa, sought benefits. In July 1984, the VA received her Form 21-534, which the VA treats as an application for Dependency and Indemnity Compensation (DIC) a benefit paid to eligible survivors of veterans whose death resulted from a service-related injury or disease, and for a Death Pension, a benefit payable to a low-income, un-remarried surviving spouse of a deceased veteran with wartime service, 38 U.S.C. 5101(b)(1). The claim for pension benefits was denied based on her income; the denial did not mention a DIC claim. In response to Teresa's “Application for Burial Benefits,” the VA authorized payment of $150.00, stating: The evidence does not show that the veteran’s death was due to a service-connected condition. Teresa did not appeal. In 2009, ischemic heart disease was added to the presumptive list of diseases related to herbicide exposure while serving in Vietnam. Teresa submitted a new Form 21-534. Her claim was granted with an effective date of October 2009. Teresa sought an effective date of July 1984 arguing that the VA never adjudicated her 1984 DIC claim, which remained “pending.” The Federal Circuit reversed the Board and Veterans Court; proper notice of an explicit denial of a claim under 38 C.F.R. 3.103 requires an actual statement or otherwise clear indication of the claim being denied. View "Ruel v. Wilkie" on Justia Law