Justia Military Law Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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A veteran, Robert Stinson, appealed to the United States Court of Appeals for the Federal Circuit, challenging the decision made by the U.S. Court of Appeals for Veterans Claims. The lower court affirmed the Board of Veterans’ Appeals’ denial of Mr. Stinson’s request for service connection for his blastic plasmacytoid dendritic cell neoplasm, a rare and aggressive form of cancer. Mr. Stinson argued that the Veterans Court improperly found facts in the first instance when reviewing the Board’s decision and also argued that the Veterans Court incorrectly applied the doctrine of issue exhaustion.The Federal Circuit found that the Veterans Court exceeded its statutory authority by finding facts and weighing evidence in the first instance. Specifically, the Veterans Court determined that Mr. Stinson's in-service symptoms and the location of the lesion giving rise to his BPDCN diagnosis were not relevant to his claim for service connection. The Federal Circuit held that the Veterans Court's conclusion required impermissible factual determinations.The Federal Circuit vacated the decision of the Veterans Court and remanded the case. On remand, the Veterans Court was instructed to remand the case to the Board for further factual development, including whether Mr. Stinson’s in-service symptoms support a manifestation of BPDCN earlier than 2011. This decision serves as a reminder to the Veterans Court to refrain from making factual determinations in the first instance and to focus on reviewing the Board's factual determinations. View "STINSON v. MCDONOUGH " on Justia Law

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The case revolves around a class-action lawsuit brought by Simon A. Soto, a retired Marine Corps member, against the United States government. The dispute concerned the application of a six-year statute of limitations under the Barring Act (31 U.S.C. § 3702) to claims for unpaid combat-related special compensation (CRSC) under 10 U.S.C. § 1413a. Soto argued that the Barring Act's limitations did not apply to CRSC claims. The United States District Court for the Southern District of Texas agreed with Soto, leading the government to appeal to the United States Court of Appeals for the Federal Circuit.The appellate court reversed the lower court's decision, ruling that the Barring Act's six-year statute of limitations applies to CRSC settlement claims. The court reasoned that the CRSC statute does not provide its own settlement mechanism, so these claims are subject to the Barring Act's settlement procedures, including its six-year statute of limitations. The court also rejected Soto's argument that the statute of limitations should be tolled due to the continuous state of war since 1990, stating that this provision only applies to service members on active duty during times of war. The case was remanded to the district court for further proceedings consistent with the appellate court's opinion. View "SOTO v. US " on Justia Law

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In this case before the United States Court of Appeals for the Federal Circuit, Vincent Curtis Conyers, an army veteran, sought employment benefits under the Veteran Readiness and Employment program, which is administered by the United States Department of Veterans Affairs. His application was denied by the VA, and this denial was subsequently upheld by the Board of Veterans' Appeals and the United States Court of Appeals for Veterans Claims. During his appeal, Mr. Conyers requested that certain documents be added to the administrative record under the doctrine of constructive possession. The Veterans Court denied his request, reasoning that the documents did not have a "direct relationship" to his claim, a standard of review that the court derived from a previous decision in Euzebio v. Wilkie.However, the United States Court of Appeals for the Federal Circuit held that the Veterans Court applied an erroneous legal standard in its review of the doctrine of constructive possession. The Federal Circuit stated that the correct standard for constructive possession is one of "relevance and reasonableness," not the "direct relationship" standard applied by the Veterans Court. The Federal Circuit noted that its standard aligns with the VA's statutory duty to assist veterans in substantiating their claims and ensures that all record documents reasonably expected to be part of a veteran’s claim are included in the administrative record. Therefore, the court vacated the decision of the Veterans Court and remanded it for further proceedings, with the instruction to apply the correct standard of "relevance and reasonableness" in its review of the doctrine of constructive possession. View "CONYERS v. MCDONOUGH " on Justia Law

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Bell served on active duty from 1952-1954 in the Army, and from 1955-1957 in the Air Force. During service, Bell sustained a lower back injury. Years later Bell filed a VA claim for entitlement to service connection for a lumbar spine disability and received a 20% disability rating, effective March 2017. In a December 2019 internal memorandum, the agency requested an administrative review by the Director of Compensation Service on the issue of entitlement to an extra-schedular rating for Bell’s lumbar spine disability under 38 C.F.R. 3.321(b)(1); the agency recommended denying entitlement to an extra-schedular rating. The Director issued an advisory opinion denying entitlement, finding that the “lumbar spine disability picture does not demonstrate an unusual or exceptional disability pattern that would render application of the regular rating criteria impractical.” The regional office denied entitlement to an extra-schedular disability evaluation.The Board of Veterans’ Appeals the Veterans Court, and the Federal Circuit affirmed the decision. Bell “d[id] not present any argument, under any applicable authority,” why the denial should be reversed. The regulation authorizing the Director of Compensation Service to approve an extra-schedular rating does not prohibit the Director from considering recommendations from agency officials before making this decision. View "Bell v. McDonough" on Justia Law

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Bufkin served in the Air Force from 2005-2006. In 2013, he sought service connection for an acquired psychiatric disorder. VA medical records reflected his visits with a VA psychiatrist, who wrote that he met the criteria for PTSD but did not identify the specific stressor or whether the stressor related to Bufkin’s military service. The VA scheduled an examination with a VA psychiatrist, who opined that his “symptoms do not meet the diagnostic criteria for PTSD.” Bufkin filed a notice of disagreement, arguing that the favorable opinion and the unfavorable opinion were in equipoise, and therefore, VA was legally obligated to grant service connection. Bufkin underwent another VA examination with another examiner, who concluded that his symptoms did not meet the diagnostic criteria for PTSD. The VA continued its denial of service connection. While his appeal was pending, another VA psychiatrist opined that in addition to a severe anxiety disorder, Bufkin “suffers from chronic PTSD.”The Board of Appeals denied service connection, finding that the preponderance of evidence supported a finding that Bufkin does not have PTSD. The Veterans Court and Federal Circuit affirmed. There was no error in the Board’s application of the benefit of the doubt rule, 38 U.S.C. 5107(b): “[w]hen there is an approximate balance of positive and negative evidence” the Secretary “shall give the benefit of the doubt to the claimant.” The Board considered conflicting medical statements but found that the rule did not apply. View "Bufkin v. McDonough" on Justia Law

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Johnson first enlisted in 1999; in 2006 he extended his enlistment for 23 months to affiliate with the Marine Corps. Active Reserve (AR) Program. He subsequently reenlisted for terms of three and four years; his scheduled end of active service was November 2015. In March 2013, the Corps issued permanent change of station (PCS) orders for Johnson to relocate from Virginia Beach to Phoenix. Johnson unsuccessfully tried to have his orders changed, citing personal hardship. Johnson stayed in Virginia despite being counseled. He signed a “page 11,” acknowledging that he was assigned code RE-3O for failing to comply with PCS orders, and was not eligible for promotion, reenlistment, commissioning or warrant officer programs, special education programs, or involuntary separation pay unless specially authorized. Johnson was transferred into the Individual Ready Reserve (IRR) program and received a DD Form 214 reflecting the RE-3O code. Months later, the Reserve mobilized Johnson back to the AR Program, stationed in Quantico, and preliminarily approved him for appointment to warrant officer. His appointment was delayed due to the RE-3O code.Johnson reenlisted for two years and unsuccessfully petitioned the Board of Naval Corrections to remove the RE-3O code and grant his appointment. The Federal Circuit held that Johnson was properly released from the AR Program and transferred to the IRR under the procedures described in the AR Program Policy Manual. Johnson was not entitled to additional notice and a separation board before his transfer. View "Johnson v. United States" on Justia Law

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Cavaciuti served in the Army, 1965-1967. In 2020, the Board of Veterans’ Appeals granted him entitlement to a total disability rating due to individual unemployability (TDIU) and directed the VA to assign him an effective date. The VA nonetheless denied Cavaciuti’s claim, finding that he was capable of gainful employment. Cavaciuti sought a writ of mandamus. After negotiations, the VA informed the Veterans Court that it had granted Cavaciuti entitlement to TDIU with a 2008 effective date. Cavaciuti argued that the case was not moot because the RO had not invalidated its erroneous rating decision and that the VA misused confidential settlement information to render the case moot.The court dismissed Cavaciuti’s petition as moot because the VA had provided him with the relief that he sought. Cavaciuti sought attorney fees and expenses under the Equal Access to Justice Act. The Veterans Court denied the application, finding that Cavaciuti did not satisfy the criterion for prevailing party status because the dismissal order did not award benefits, change the parties’ legal relationship, or otherwise address the merits of Cavaciuti’s writ petition. The Federal Circuit affirmed. There was no judicial change in the parties' legal relationship. The VA implemented the Board’s decision, as Cavaciuti requested, following a settlement rather than based on any court order. The fact that the government’s representations would prevent future changes does not render the dismissal a judicial imprimatur sufficient to make Cavaciuti the prevailing party. View "Cavaciuti v. McDonough" on Justia Law

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Perciavalle, serving in the Army from 1962-1964, injured his knee, which required surgery. The VA awarded Perciavalle a 10 percent disability for medial menisectomy under Diagnostic Code (DC) 5259 for “[c]artilage, semilunar, removal of, symptomatic.” In 1971, Perciavalle underwent another orthopedic examination. The VA did not increase Perciavalle’s disability rating. Perciavalle did not appeal. In 2015, Perciavalle requested a reopening of the 1971 rating decision for clear and unmistakable error (CUE), claiming that he was entitled to two separate disability ratings, one for slight instability of the knee under DC 52571 and another based on the 1971 examination for limitation of motion of flexion and discomfort secondary to arthritis under DC 5003-5260. Perciavalle argued that the 1971 x-ray “clearly show[ed] degenerative changes” as compared to the 1966 examination. The regulations allowed for the combination of two or more disability ratings, but stated that the evaluation of the same disability under various diagnoses is to be avoided.The Veterans Court affirmed the Board of Veterans’ Appeal’s denial of Perciavalle’s claim. The Federal Circuit vacated in part. The Board incorrectly interpreted Perciavalle’s CUE claim. Perciavalle’s CUE claim set forth the relevant facts and regulations. Under a sympathetic reading of that claim, the VA was required to “determine all potential claims raised by the evidence, applying all relevant laws and regulations.” View "Perciavalle v. McDonough" on Justia Law

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Grounds served in the Army from 1969-1972. He was charged with being AWOL during three periods in 1972 (less than 180 days). To avoid a court-martial. Grounds requested to be discharged “for the good of the service,” citing marital and financial problems and stating, if he were to remain in the Army, he would continue going AWOL. Grounds was discharged “[f]or the good of the [s]ervice” and “[u]nder conditions other than [h]onorable.”In 2013, Grounds applied for veterans' benefits. The VA found his multiple periods of AWOL constituted “willful and persistent misconduct,” rendering him ineligible for benefits under 38 C.F.R. 3.12(d)(4). The Board of Veterans Appeals agreed, concluding his discharge was considered “dishonorable” for VA benefits purposes. The Federal Circuit affirmed the Veterans Court's rejection of an argument that 38 U.S.C. 5303(a) controls and cannot be superseded by 38 C.F.R. 3.12(d)(4). Section 5303(a) provides that a veteran is not eligible for benefits if he was discharged by reason of court-martial on the basis of being AWOL for a continuous period of at least 180 days. Under Federal Circuit precedent, section 5303(a) is not the exclusive test for benefits eligibility; 38 C.F.R. 3.12(d)(4) is consistent with and authorized by statute. While Grounds’ misconduct did not constitute a statutory bar to VA benefits under section 5303. the Board did not clearly err in finding that his multiple periods of AWOL constituted a regulatory bar to benefits. View "Grounds v. McDonough" on Justia Law

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The VA’s Schedule for Rating Disabilities includes diagnostic codes (DCs), each with a corresponding disability rating, 38 U.S.C. 1155. A particular veteran’s disability may not clearly fall under a delineated DC. VA regulations provide: When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. The VA considers the functions affected by ailments, the anatomical localization of the ailments, and the symptomatology of the ailments.Webb served in the Army, from 1968-1970, receiving an honorable discharge. Webb later developed service-connected prostate cancer, the treatment for which caused him to develop erectile dysfunction (ED). In 2015, Webb was assigned a non-compensable (zero percent) rating for his ED. The Schedule did not then include a diagnostic code for ED. The VA rated Webb’s disability by analogy to DC 7522, which provides a 20 percent disability rating for “[p]enis, deformity, with loss of erectile power.” The Board explained that DC 7522 required Webb to show “deformity of the penis with loss of erectile power.” Without such a deformity, he was not entitled to a compensable disability rating. The Veterans Court affirmed. The Federal Circuit vacated. The listed disease or injury to which a veteran’s unlisted condition is being rated by analogy must be only “closely related,” not identical. View "Webb v. McDonough" on Justia Law