Justia Military Law Opinion Summaries

Adams, a member of the Arizona Air National Guard, worked in human resources for Customs and Border Patrol (the agency). In 2018, Adams performed three periods of National Guard military service. Between April 11 and July 13, Adams was activated under 10 U.S.C. 12301(d) to support a military personnel appropriation (MPA) tour in support of Twelfth Air Force; July 18-July 30, he was ordered to attend annual training under 32 U.S.C. 502(a). Between July 28 and September 30, Adams was again activated under section 12301(d) to support an MPA tour. Both 12301(d) orders stated that they were “non-contingency” activation orders.Under 5 U.S.C. 5538(a), federal employees who are absent from civilian positions due to certain military responsibilities may qualify to receive the difference between their military pay and what they would have been paid in their civilian employment during the time of their absence (differential pay). Adams requested differential pay for each of his periods of service. Adams appealed the agency's denials. The Merit Systems Protection Board held that the denials did not violate the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 4301–4335). The Federal Circuit affirmed. Entitlement to differential pay requires service under a call to active duty that meets the statutory definition of a contingency operation. None of Adams’s service meets the statutory requirements for differential pay, View "Adams v. Department of Homeland Security" on Justia Law

The Department of Defense's experiments at Edgewood involved “volunteers,” including Taylor, who was on active duty, 1969-1971. Taylor signed a secrecy oath providing that he would not divulge any information related to the program and that any such action would render him liable to punishment and signed a document stating that the experiment had been explained to him and that he volunteered to participate. Taylor was exposed to a nerve agent, a tear gas agent, and more. Taylor experienced hallucinations, nausea, jumpiness, irritability, sleepiness, dizziness, impaired coordination, and difficulty concentrating. He was subsequently deployed to Vietnam, for two combat tours. The secrecy of the project prevented Taylor from obtaining psychiatric help and from showing extenuating circumstances during his court-martial.In 2006, the Edgewood names were declassified. The VA notified participants that they were permitted to disclose to health care providers information about their involvement at Edgewood that affected their health. In 2007, Taylor sought service-connected benefits for PTSD. A VA medical examiner diagnosed Taylor with PTSD and major depressive disorder, “a cumulative response” to his Edgewood experience and “subsequent re-traumatization in Vietnam.” Taylor had previously sought treatment for his PTSD but was rejected because the provider believed he lied about being an experimental subject.The VA granted Taylor’s claim, with a 2007 effective date, citing the absence of an earlier claim. On remand, the VA failed to obtain the language of Taylor’s secrecy oath and again concluded that the earliest assignable effective date was 2007; “nothing prevented [Taylor] from filing a claim.” The Veterans Court affirmed.The Federal Circuit reversed. The Veterans Court erred in concluding it lacked equitable authority absent an express statutory grant and erred in concluding that 38 U.S.C. 5110(a)(1) is not subject to common law equitable doctrines. The government affirmatively and intentionally prevented veterans from seeking medical care and applying for disability benefits to which they are otherwise entitled under threat of criminal prosecution and loss of the very benefits sought. “If equitable estoppel is ever to lie against the Government, it is here—to preserve the ‘interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.’” View "Taylor v. McDonough" on Justia Law

The “effective date of an award” of disability compensation to a veteran “shall not be earlier than the date” the veteran’s application for such compensation is received by the VA. 38 U.S.C. 5110(a)(1). Section 5110(b)(1) provides an exception that permits an earlier effective date if the VA receives the application within one year of the veteran’s discharge from military service: under such circumstances, the effective date of the award shall date back to “the day following the date of the veteran’s discharge or release.”Arellano filed his application more than 30 years after he was discharged from the Navy, he argued that section 5110(b)(1)’s one-year period should be equitably tolled to afford his award an earlier effective date reaching back to the day after his discharge. The Veterans Court denied Arellano an effective date earlier than the date his disability benefits application was received by the VA. The Federal Circuit previously held that 5110(b)(1) is not a statute of limitations amenable to equitable tolling but merely establishes an effective date for the payment of benefits, thereby categorically foreclosing equitable tolling. The Federal Circuit affirmed as to Arellano, declining to overrule that precedent, stating that the statutory text evinces clear intent to foreclose equitable tolling of section 5110(b)(1)’s one-year period. View "Arellano v. McDonough" on Justia Law

Anania served in the Army, 1972-1975. In 2008, Anania sought an increased evaluation for the degenerative joint disease of his spine and major depressive disorder, and entitlement to a total disability rating based on individual unemployability. The VA issued a rating decision. Anania filed a Notice of Disagreement. In December 2009, the VA denied Anania’s request, describing the process for appeal. Anania had until March 3, 2010—one year after the date of mailing of the notification of the VA’s decision—to file a substantive appeal with the Waco Regional Office. In June 2012, Anania’s counsel, Carpenter, sent a letter to the Board of Veterans’ Appeals requesting confirmation that it had docketed Anania’s substantive appeal of the rating decision.The Board concluded that Anania failed to timely file his substantive appeal, which “was not received into VA custody until June 29, 2012.” Anania urged the Board to find his appeal timely filed under the common law mailbox rule, submitting a signed affidavit from Carpenter, alleging that Carpenter had personally mailed the substantive appeal on January 18, 2010. On remand, the Board again determined that Anania’s appeal was not timely filed, stating that the mailbox rule’s presumption of receipt did not attach because Carpenter’s affidavit was “no more than self-serving testimony.” The Veterans Court affirmed. The Federal Circuit reversed. A party’s affidavit may provide credible evidence to satisfy the mailbox rule, and the government did not challenge the credibility of Carpenter affidavit. View "Anania v. McDonough" on Justia Law

Cameron filed a Notice of Disagreement (NOD) on behalf of an Army veteran in August 2005. The VA denied Cameron attorney’s fees under 38 C.F.R. 14.636(c), which permits an attorney to charge fees for services provided before a final Board decision only where a NOD was filed on or after June 20, 2007. Before the law was amended, attorneys representing veterans in veterans’ benefits cases before the VA were prohibited from charging fees for services provided before a final Board decision.The Veterans Court and the Federal Circuit affirmed the denial, holding that section 14.636(c) is consistent with its authorizing statute, 38 U.S.C. 5904. Congress considered eliminating all fee restrictions under section 5904(c)(1) by repealing subsection (c)(1) entirely but made a legislative choice between the competing purposes of liberalizing the availability of attorney’s fees and avoiding disruption to the veterans’ benefits system, and “adopted a delayed and staggered effective date . . . [to] allow a deliberate and gradual implementation of these policies in order to minimize any disruption to the VA system.” In denying Cameron attorney’s fees, the VA has done no more than give effect to that legislative choice. View "Cameron v. McDonough" on Justia Law

Snyder served in the Army for fewer than 50 days in 1974, during the Vietnam “period of war,” 38 C.F.R. 3.2(f). He received an honorable discharge when a knee injury rendered him unfit. Four decades later, he was diagnosed with Amyotrophic Lateral Sclerosis (ALS). He sought disability benefits under 38 U.S.C. 1110. The Veterans Court denied his claim, rejecting Snyder’s argument under a VA regulation, made final in 2009, that provides a presumption of service connection for veterans with ALS if specified preconditions are satisfied, 38 C.F.R. 3.318(a), (b).The Federal Circuit affirmed the denial. Snyder does not satisfy one of the preconditions—that the veteran “have active, continuous service of 90 days or more.” That precondition is not contrary to the statutory scheme nor arbitrary and capricious; 38 U.S.C. 501(a) supplies the required statutory authority for the regulation and section 3.318, as an exercise of that authority, is not contrary to other statutory provisions cited by Snyder. The Secretary found no reliable evidence of a correlation between ALS and service periods as short as 90 days; it was reasonable to choose a familiar short period to avoid too demanding an evidentiary standard (no presumption) or too lenient a standard (no minimum service period) for applying the statutory requirement of service connection to ALS. View "Snyder v. McDonough" on Justia Law

Langdon served on active duty in the Navy, 1980-1996. After leaving service, Langdon sought disability compensation for a “spine condition especially [the] thorac[ic] [and] lumbar regions.” The VA determined Langdon had a service-connected thoracic spine injury, a non-service-connected lumbar spine injury, and only 55 degrees of forward flexion for his thoracolumbar spine. It also determined that Langdon’s service-connected thoracic spine injury caused no functional impairment; the non-service-connected lumbar spine injury caused his reduced flexion. Because his service-connected injury caused no functional impairment, the VA assigned Langdon a zero percent disability rating under 38 C.F.R. 4.71a. The Board of Veterans’ Appeals rejected his claim of entitlement to a 20 percent rating based on his limited thoracolumbar flexion but increased Langdon’s rating to 10 percent based on upper back pain under a different regulation, 38 C.F.R. 4.45(f), 4.59. The Veterans Court affirmed.The Federal Circuit reversed. The VA’s regulation requires it to rate the thoracolumbar spine as a unit when applying the General Rating Formula. Under this interpretation, the VA does not dispute that Langdon has a service-connected thoracic injury with reduced thoracolumbar flexion that entitles him to a 20 percent disability rating under the General Rating Formula. View "Langdon v. McDonough" on Justia Law

Lynch served on active duty in the Marine Corps, 1972-1976. In 2015, Lynch was evaluated on two separate occasions by Dr. Newsome, a private psychologist. Lynch described phobias about confined spaces, panic attacks, memory problems, mood swings, frequent nightmares, antisocial behaviors, and depression, which he attributed to intrusive memories from his time in service. Dr. Newsome reported that Lynch’s symptoms and the results of the PTSD Checklist supported a diagnosis of PTSD.Lynch filed a claim of entitlement to disability benefits for PTSD and underwent a VA PTSD examination. The VA examiner reported that Lynch’s PTSD did not result in symptoms that were severe enough to interfere with occupational or social functioning or to require continuous medication and that the level of impairment observed by Dr. Newsome was not observed during the VA examination. The regional office granted Lynch’s claim with a 30% disability rating. Lynch filed a Notice of Disagreement and submitted two additional psychological evaluations conducted by a private psychiatrist, Dr. Jabbour. He underwent a second VA PTSD examination. The examiner found some of Jabbour’s conclusions “more extreme than what was supported by available evidence.”The Veterans Court rejected Lynch’s argument that the Board misapplied 38 U.S.C. 5107(b) and wrongly found that he was not entitled to the “benefit of the doubt.” The Federal Circuit affirmed. The benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant. View "Lynch v. McDonough" on Justia Law

In 2011, the Navy published a job announcement for an Event Forum Project Chief, a full-time, permanent, GS-13/14-grade position. Two candidates—Beck and Wible—were certified as qualified for the position. Captain Payton selected Wible. Beck, had been in active Navy service from 1984 until his retirement in 2005 and had been promoted through a series of jobs relevant to the posted position. In 2001, Beck earned a bachelor’s degree in business with a GPA of 3.91; he earned a master’s degree in Human Resource Management and Development in 2002. In 2006, Beck rejoined the Navy workforce as a civilian Special-Events Planning Officer (SEPO), a GS-13-1 grade position. Beck had trained Wible. Payton had apparently first shown animosity toward Beck during a meeting in 2010.Beck filed a formal EEO action alleging discrimination based on race, gender, age, and disability, which engendered a retaliatory and hostile work environment. Beck resigned and unsuccessfully eventually sought corrective action from the Merit Systems Protection Board under the Uniformed Services Employment and Reemployment Rights Act of 1994.The Federal Circuit reversed in part. Preselection of the successful candidate can buttress an agency’s personnel decision to hire a less qualified candidate only when the preselection is not tainted by an unlawful discriminatory intent. The Board erred in finding that Beck’s non-selection would have occurred regardless of his prior military service as required under 38 U.S.C. 4311(c)(1). View "Beck v. Department of the Navy" on Justia Law

Flores-Vazquez served on active duty in the Navy, 1984-1988. In 1998, he sought service connection for depression for which he received treatment while onboard the U.S.S. Kitty Hawk. Flores-Vazquez claimed that he had witnessed several accidental deaths during service, including “a man being sucked inside the nose of an airplane.” Flores-Vazquez did not then submit service department records verifying the incidents. Flores-Vazquez did not appeal the denial of his claim. In 2005, Flores-Vazquez sought to reopen his claim. A medical examiner diagnosed bipolar disorder with depression and determined that the condition was “due to or the result of in[-]service illness.” The regional office denied service connection, reasoning that the medical opinion was “appeared to be based on the veteran’s unsupported report.”In 2008-2009, while Flores-Vazquez’s appeal to the Board of Veterans’ Appeals was pending, the VA received the 1986-1987 command histories of the Kitty Hawk. In 2010, the Board decided that, while the evidence was not compelling, service connection was warranted. The Board relied primarily on the 2005 medical report, not the command histories, and granted an effective date of January 2005. On remand from the Veterans Court, the Board found that 38 C.F.R. 3.156(c) did not apply because the Board’s 2010 award of benefits “was not based on” the new service department records. The Federal Circuit affirmed. The command histories submitted in 2008 played no role in the grant of service connection; the favorable resolution turned on a 2005 VA opinion that was based on service medical records that were always part of the claims file. View "Flores-Vazquez v. McDonough" on Justia Law