Justia Military Law Opinion Summaries

Nicely served in active duty in the Marine Corps (USMC) for more than 10 years. Between Nicely’s 2010 DUI arrest and his 2011 discharge, the state court dismissed the DUI charge but Nicely wrote a letter to his Commanding General admitting to having driven under the influence. After the Board of Inquiry proceedings began but before they ended, Nicely filed a reprisal complaint under the Military Whistleblower Protection Act (MWPA), 10 U.S.C. 1034. Nicely’s complaint was dismissed in 2012. Nicely unsuccessfully petitioned the Board for Correction of Naval Records (BCNR) to correct his military record.Nicely filed suit in the Claims Court, alleging that some BCNR members were not statutorily authorized to serve. The BCNR rejected his claim that retired military officers are precluded from sitting on military correction boards under 10 U.S.C. 1552(a), reasoning that neither BCNR’s authorizing statute nor governing regulations expressly define "civilian" and do not expressly exclude retired military members from those civilians who may serve as Board members. The Claims Court then dismissed for lack of jurisdiction. The Federal Circuit affirmed. The Claims Court correctly concluded that Nicely’s claim arose under the MWPA and not the Military Pay Act and that it, therefore, lacked jurisdiction. The use of the term “civilian” throughout Title 10 to include former and retired members of the military is consistent with the ordinary meaning of “civilians”—that is, a person who is “not serving on active duty in the military View "Nicely v. United States" on Justia Law

Breland served in the Army in Vietnam, 1965-1968, and was exposed to Agent Orange. In 2006, Breland was diagnosed with carcinoma of the tongue; he completed his treatments in January 2007. The VA Regional Office denied Breland’s claim for service connection. A January 2008 biopsy revealed the recurrence of Breland’s tongue cancer. He underwent surgery. Breland filed a Notice of Disagreement. In 2010, a VA examiner note Breland’s complaint of continuing dry mouth, found no recurrence of Breland’s cancer, and concluded that the condition was “less likely related” to herbicide exposure. Breland’s claim was again denied.In 2015, Breland submitted a medical opinion tying his tongue cancer to Agent Orange exposure and retroactively granted service connection, with a 100% rating for December 2006-August 2007, and a non-compensable rating, based on Breland’s inactive disease. Following a September 2017 VA examination, the Regional Office granted service connection for certain residual conditions and determined that a 100% rating for Breland’s tongue cancer was warranted retroactively for an additional eight-month period. The Board of Veterans’ Appeals and Federal Circuit upheld those determinations. Diagnostic Code 7343 does not require the VA to continue a 100% disability rating until it performs a “mandatory VA examination” six months following treatment when the disability rating is assigned retroactively after the six-month period has passed. Breland has been and is fairly compensated based on the actual state of his health. View "Breland v. McDonough" on Justia Law

Philbrook served in the Army, 2000-2004, then was awarded disability compensation for PTSD. In 2011, Philbrook stipulated to a judgment of “guilty except for insanity” in connection with a felony. He was ordered into the custody of the Oregon State Hospital “under the jurisdiction of the Psychiatric Security Review Board . . . for care, custody, and treatment for a maximum period not to exceed 20 years.” Philbrook then applied for total disability based on individual unemployability (TDIU).A VA regional office concluded that Philbrook’s PTSD did not entitle him to TDIU because it did not preclude gainful employment. The Board of Veterans’ Appeals denied TDIU “as a matter of law”; 38 U.S.C. 5313(c), precludes the assignment of a TDIU rating for any period “during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.” The Veterans Court affirmed.The Federal Circuit reversed. Philbrook was not confined in a “penal institution or correctional facility”; he was committed to a mental institution, “a hospital for people with mental or emotional problems.” The term “correctional facility” cannot encompass a hospital that treats civil patients, and a hospital cannot be a correctional facility for some patients and not others. View "Philbrook v. McDonough" on Justia Law

Larson served on active duty for training in the Navy Reserves in 1988 and on active duty in the Navy, 1989-1993. He gained a substantial amount of weight before, during, and after his active service. In 2009, Larson filed a claim for service connection for multiple conditions, including obesity and dysmetabolic syndrome (DMS). The VA denied the claims in 2010. The Board affirmed that denial in 2016, holding that neither DMS nor obesity was a disability because neither condition is ratable under the VA Schedule of Rating Disabilities. The Veterans Court affirmed the denial of service connection for DMS and obesity, holding that it lacked jurisdiction to review a Board determination of what constitutes a disability under 38 U.S.C. 1110 because such inquiry amounted to a review of the rating schedule, prohibited by 38 U.S.C. 7252(b).The Federal Circuit reversed, noting that it has previously held that the Veterans Court has jurisdiction to review a Board determination that a claimed condition did not constitute a disability for purposes of section 1110. Larson seeks only to establish a service connection for his conditions and is not asking the Veterans Court to invalidate or revise any portion of the rating schedule. View "Larson v. McDonough" on Justia Law

In 1982, while serving in the Air Force in Germany, Jones was struck in the eye by the door of an armored personnel carrier. He developed intense headaches; it became increasingly difficult for Jones to perform his duties. A 1988 Clinical Resume reflects that Jones had developed “intermittent right cranial nerve 4th palsy associated with chronic right retro-orbital stabbing pain, usually occurring during the late afternoon or night.” Jones described "a nearly constant headache which was relieved only with repetitive doses of intramuscular Demoral.” A Physical Evaluation Board recommended that Jones be discharged with severance pay based on a 10% disability rating for “Post-traumatic pain syndrome manifest[ing] as headaches.”Jones was honorably discharged with severance pay. In 1989, his discharge was amended to reflect that his injury was combat-related. Effective in 2017, the VA awarded Jones a 100% disability rating. Jones petitioned the Air Force Board for Correction of Military Records for changes to his record that would entitle him to a disability retirement dating back to 1988, when he was discharged, 10 U.S.C. 1201. The Board denied Jones’s petition. The Federal Circuit affirmed the Claims Court: the claim for disability retirement pay and benefits was a claim under a money-mandating statute, as required by the Tucker Act, 28 U.S.C. 1491(a)(1), but jurisdiction was lacking because the claim was barred by the six-year statute of limitations, 28 U.S.C. 2501. View "Jones v. United States" on Justia Law

Buffington served on active duty in the Air Force, 1992-2000. After leaving active duty service, Buffington sought disability benefits. The VA found that Buffington suffered from service-connected tinnitus, rated his disability at 10 percent, and awarded him disability compensation. In 2003, Buffington was recalled to active duty in the Air National Guard. He informed the VA of his return to active service, and the VA discontinued his disability compensation, 38 U.S.C. 5112(b)(3), 5304(c). In 2004, Buffington completed his active service in July 2005. Buffington did not seek to recommence his disability benefits until January 2009. The VA determined Buffington was entitled to compensation effective on February 1, 2008—one year before he sought recommencement; 38 C.F.R. 3.654(b)(2) sets the effective date for recommencement of compensation, at the earliest, one year before filing. Buffington challenged the effective-date determination.The VA Regional Office rejected his challenge, providing further reasoning for the February 2008 effective date. The Board of Veterans Appeals affirmed. The Veterans Court held that section 3.654(b)(2) was a valid exercise of the Secretary of Veterans Affairs rulemaking authority and was not inconsistent with 38 U.S.C. 5304(c). The Federal Circuit affirmed. Section 3.654(b)(2) reasonably fills a statutory gap. View "Buffington v. McDonough" on Justia Law

The 2017 Veterans Appeals Improvement and Modernization Act (AMA) reforms the VA's administrative appeals system, 131 Stat. 1105, replacing the existing system, which had shepherded all denials of veteran disability claims through a one-size-fits-all appeals process. Under the AMA, claimants may choose between three procedural options: filing a supplemental claim based on additional evidence, requesting higher-level review within the VA based on the same evidentiary record, and filing a notice of disagreement to directly appeal to the Board of Veterans Appeals. The VA promulgated regulations to implement the AMA. Veterans’ service organizations, a law firm, and an individual (Petitioners) filed separate petitions raising 13 rulemaking challenges to these regulations under 38 U.S.C. 502.1The Federal Circuit concluded that two veterans’ service organizations had associational standing based on claimed injuries to their members to collectively bring three of their challenges. No Petitioner demonstrated standing to raise any of the remaining challenges. The regulations the organizations have standing to challenge are invalid for contravening the unambiguous meaning of their governing statutory provisions: 38 C.F.R. 14.636(c)(1)(i), limiting when a veteran’s representative may charge fees for work on supplemental claims; 38 C.F.R. 3.2500(b) barring the filing of a supplemental claim when adjudication of that claim is pending before a federal court; and 38 C.F.R. 3.155 excluding supplemental claims from the intent-to-file framework. View "Military-Veterans Advocacy v. Secretary of Veterans Affairs" on Justia Law

Ortiz served during the Vietnam era, a “period of war,” under 38 U.S.C. 1110, which provides for compensation for service-connected disabilities. The VA denied Ortiz’s 1997 claim for disability benefits based on PTSD, finding Ortiz did not provide corroborating evidence, as required by the PTSD regulation. The VA reopened and granted the claim in 2012, pursuant to the 2010 addition of 38 C.F.R. 3.304(f)(3), an exception to the corroborating evidence requirement. The VA rated Ortiz 100 percent disabled and made the benefits effective as of May 2012, when it received the request to reopen. Ortiz contended that the effective date should have been one year earlier; 38 C.F.R. 3.114(a), provides that when compensation “is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary” and the “claim [for compensation] is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue,” the effective date is “1 year prior to the date of receipt of such request.”The Board of Veterans’ Appeals and the Veterans Court rejected his request for an earlier effective date. The Federal Circuit reversed. The regulatory change that enabled Ortiz to obtain the benefits was a “liberalizing” one, entitling Ortiz to the earlier effective date, and a larger award. View "Ortiz v. McDonough" on Justia Law

Tadlock served in the Army, 1982-2003, including service in the Persian Gulf. In 2010, he suffered a pulmonary embolism (PE) that resulted in a heart attack. Tadlock sought presumptive service connection under 38 U.S.C. 1117, which refers to a “qualifying chronic disability” for veterans who served in the Persian Gulf War. The regulations limit the definition of “qualifying chronic disability” to one that, “[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” Tadlock underwent a final medical examination by a VA physician, who explained that Tadlock’s PE “is not an undiagnosed illness.” The Board of Veterans Appeals based its denial of service connection on that opinion.Neither the Board nor the examiner made any finding that Tadlock’s condition was not a “medically unexplained chronic multisymptom illness” (MUCMI). Tadlock contended that the statute expressly includes both “an undiagnosed illness” and a MUCMI. The Veterans Court found that Tadlock's PE was "not characterized by overlapping signs and symptoms and unique features ... and disproportional disability when compared with physical findings.” It held that "any error in the Board decision regarding whether his diagnosed illness could count as a MUCMI is harmless.”The Federal Circuit vacated. The Veterans Court exceeded its authority in making a fact-finding in the first instance that Tadlock’s illness did not qualify as a MUCMI because of a lack of overlapping symptoms. The Veterans Court’s jurisdiction to consider prejudicial error does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate. View "Tadlock v. McDonough" on Justia Law

Rudisill served three periods of active duty military service: 2000-2002 in the Army (30 months); 2004-2005 in the Army National Guard (18 months); and 2007-2011 as a commissioned Army officer (45 months). He received 25 months and 14 days of education benefits under the Montgomery GI Bill (MGIB), 38 U.S.C. 3011(a), for completion of his college degree. After his third period of Army service, he applied for education benefits under the Post-9/11 GI Bill, 38 U.S.C. 3311, for a graduate program. The VA determined that he was entitled to the Post-9/11 benefits, but only for the remaining 10 months and 16 days of the 36 months authorized for Montgomery benefits. The Board of Veterans’ Appeals agreed.The Veterans Court reversed. A veteran is entitled to education benefits for each of his periods of separately qualifying service and is entitled to the aggregate cap of 48 months of benefits. The Federal Circuit affirmed. The legislation explicitly provides additional benefits to veterans with multiple periods of qualifying service, whereby each period of service qualifies for education benefits: “The aggregate period for which any person may receive assistance under two or more of the provisions of law listed below may not exceed 48 months,” 38 U.S.C. 3695(a). This provision has been in each GI Bill since at least 1968. View "Rudisill v. McDonough" on Justia Law