Justia Military Law Opinion Summaries

Veterans’ Groups challenged regulations issued in 2014 by the Department of Veterans Affairs pursuant to its notice-and-comment rulemaking authority. The Final Rule amended the VA’s adjudication and appellate regulations to require that all claims for compensation “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty . . . during a period of war” and related appeals originate on standard VA forms. The VA’s prior regulation provided that “[a]ny communication or action, indicating an intent to apply for . . . benefits[,] . . . may be considered an informal claim,” 38 C.F.R. 3.155(a). The Federal Circuit denied the petitions and found the Final Rule valid because it accords with applicable rulemaking procedures and is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The Rule does not contravene Congress’s mandate that the VA has a duty to develop veterans’ claims. View "Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs" on Justia Law

Veterans’ Groups challenged regulations issued in 2014 by the Department of Veterans Affairs pursuant to its notice-and-comment rulemaking authority. The Final Rule amended the VA’s adjudication and appellate regulations to require that all claims for compensation “[f]or disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty . . . during a period of war” and related appeals originate on standard VA forms. The VA’s prior regulation provided that “[a]ny communication or action, indicating an intent to apply for . . . benefits[,] . . . may be considered an informal claim,” 38 C.F.R. 3.155(a). The Federal Circuit denied the petitions and found the Final Rule valid because it accords with applicable rulemaking procedures and is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The Rule does not contravene Congress’s mandate that the VA has a duty to develop veterans’ claims. View "Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs" on Justia Law

Dover served in the Navy, 1956-1960, and, in 1968, filed a claim for service-connected disability benefits. His claim for a hand injury was denied; he did not appeal. In 2004, the VA regional office (RO) denied Dover's motion to reopen. In 2008, Dover requested clear and unmistakable error (CUE) review of both the 1968 decision and the 2004 refusal to reopen. In 2009, the RO granted service connection based on new medical evidence and assigned an effective date of March, 2006, the date of another request to reopen. In 2009, Dover appealed for an earlier effective date of 1968, but the RO found no CUE. In 2011, Dover provided more detailed arguments. The Board for Veterans’ Appeals issued a final ruling of no CUE. On appeal, the VA conceded that it erred by failing to dismiss Dover’s non-specific CUE claim. The Veterans Court remanded with instructions to allow and consider additional evidence and argument in support of the claim. The Board dismissed Dover’s 2008 claim without prejudice but treated the 2011 submission of additional arguments as a separate CUE claim and remanded to the RO. Dover moved under the Equal Access to Justice Act for attorney’s fees incurred on appeal, 28 U.S.C. 2412(d). The Veterans Court rejected the motion because it believed that its remand was for dismissal. The Federal Circuit reversed, stating that the remand expressly contemplated, and the appellant received, further proceedings, sufficient for prevailing party status. View "Dover v. McDonald" on Justia Law

Dover served in the Navy, 1956-1960, and, in 1968, filed a claim for service-connected disability benefits. His claim for a hand injury was denied; he did not appeal. In 2004, the VA regional office (RO) denied Dover's motion to reopen. In 2008, Dover requested clear and unmistakable error (CUE) review of both the 1968 decision and the 2004 refusal to reopen. In 2009, the RO granted service connection based on new medical evidence and assigned an effective date of March, 2006, the date of another request to reopen. In 2009, Dover appealed for an earlier effective date of 1968, but the RO found no CUE. In 2011, Dover provided more detailed arguments. The Board for Veterans’ Appeals issued a final ruling of no CUE. On appeal, the VA conceded that it erred by failing to dismiss Dover’s non-specific CUE claim. The Veterans Court remanded with instructions to allow and consider additional evidence and argument in support of the claim. The Board dismissed Dover’s 2008 claim without prejudice but treated the 2011 submission of additional arguments as a separate CUE claim and remanded to the RO. Dover moved under the Equal Access to Justice Act for attorney’s fees incurred on appeal, 28 U.S.C. 2412(d). The Veterans Court rejected the motion because it believed that its remand was for dismissal. The Federal Circuit reversed, stating that the remand expressly contemplated, and the appellant received, further proceedings, sufficient for prevailing party status. View "Dover v. McDonald" on Justia Law

In 2012, one in five female veterans and one in 100 male veterans reported that they experienced sexual abuse in the military, and an estimated 26,000 service members “experienced some form of unwanted sexual contact.” The trauma stemming from sexual abuse in the military (military sexual trauma (MST)) can result in severe chronic medical conditions, including Post-Traumatic Stress Disorder, depression, and anxiety. Generally, veterans with service-connected disabilities are entitled to disability benefits, 38 U.S.C. 1110, 1131. In response to what they viewed as the VA’s inadequate response to MST-based disability claims, veterans’ groups submitted a petition for rulemaking which requested that the VA promulgate a new regulation regarding the adjudication of certain MST-based disability claims. The Secretary of Veterans Affairs denied the petition. The Federal Circuit upheld the denial, noting its limited and deferential review and stating that the Secretary adequately explained its reasons for denying the petition. The court rejected a claim that in denying the petition, the Secretary violated the equal protection clause by intentionally discriminating against women without providing an exceedingly persuasive justification or discriminating against survivors of MST-based PTSD without providing a legitimate reason. View "Serv. Women's Action Network v. Sec'y of Veterans Affairs" on Justia Law

Bozeman served in the Army, 1967-1970, including one year in Vietnam. In 1993, Bozeman sought disability benefits after substance abuse treatment at a VA Medical Center. The VA awarded him service-connected benefits for PTSD, rated as 10 percent disabling. Bozeman’s condition deteriorated. His disability rating was increased to a 50 percent rating in 1999. In 2000, the VA denied an increased rating. Bozeman underwent a VA Compensation and Pension Examination (C&P) in 2002. Bozeman submitted a Notice of Disagreement with its conclusion. He was hospitalized in 2003 and 2004, for “suicidal and homicidal thoughts[,] . . . severe depression.” In 2005 a C& P examiner concluded that Bozeman suffered from “chronic PTSD symptomatology off and on for the last 25 years” and that he would have “difficulty . . . work[ing] in gainful employment.” In 2006, Bozeman’s rating was increased to 70 percent, effective February 2003, with a temporary 100 percent rating for the hospitalization. The Board denied a rating in excess of 50 percent prior to February 2003, and a rating in excess of 70 percent after February 2003, but granted a rating of 100 percent, effective November 2010. The Veterans Court affirmed. The Federal Circuit vacated. Bozeman’s argument that the Board failed to consider relevant evidence was not a new legal argument raised for the first time on appeal; the Board’s reliance on issue exhaustion was improper View "Bozeman v. McDonald" on Justia Law

In 1998, Dickens filed a claim for PTSD caused by in-service events, stating that he received a Purple Heart and Bronze Star in connection with these events. His file was never located despite extensive searching. Dickens passed away in 2006 while his claim was pending, and Mrs. Dickens sought accrued benefits. In 2011, she testified that she did not know what had happened to her husband’s proof of a Purple Heart. In 2012, the Board of Veterans Appeals denied the claim, finding no evidence that Dickens was involved in combat during his military service. On remand, in 2013, the Board denied the claim, again finding insufficient evidence to establish that Dickens engaged in combat. Mrs. Dickens argued that the VA violated its duty to assist her with her claim because the Board hearing officer failed to suggest that she seek a copy of Mr. Dickens’s service records 2011. The Veterans Court rejected that argument and affirmed the denial, noting that if Mrs. Dickens believed that the hearing officer committed an error, she should have included that issue in the 2012 joint motion for partial remand. The Federal Circuit affirmed, citing principles of issue exhaustion. View "Dickens v. McDonald" on Justia Law

In 2007, McMillan a GS-13 Criminal Investigator with the Drug Enforcement Agency (DEA) and an officer in the Army Reserves. was assigned to the Lima, Peru DEA Office. His tour at Lima was to expire in 2010, but he successfully sought a one-year extension. In 2010, two months after a controversy concerning his the use of a DEA Foreign Situation Report in a military intelligence report, and his participation in a teleconference, McMillan unsuccessfully requested an additional two years. McMillan contends that the decision not to renew his tour was based improperly on his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 430. McMillan’s complaint with the Department of Labor’s Veterans’ Employment and Training Service was found unsupported; an AJ cited McMillan’s “performance issues,” in terms of the number of arrests, seizures, informant recruitment, and disruptions of criminal organizations McMillan facilitated; McMillan’s alleged failure to follow his chain of command in soliciting assistance with his military assignment; and McMillan’s “disdain[ful],” “arroga[nt], “disrespectful and improper” emails to his supervisor. The Merit Systems Protection Board denied McMillan’s appeal. The Federal Circuit reversed. DEA failed to demonstrate that it would have made the same decision in the absence of McMillan’s military service. View "McMillan v. Dep't of Justice" on Justia Law

Hayden, a member of the Air Force Reserves, has worked as a protocol specialist at Wright-Patterson Air Force Base since 2002. The Base is geographically divided into Areas A and B: each has a protocol office. Hayden worked in B Flight, classified as GS-9, until 2010. Because he acquired new duties in transferring to Area A, the agency upgraded Hayden’s position to GS-11. In 2012, Hayden’s supervisor requested to upgrade his position to GS-12, “based on accretion of duties.” Hayden received orders to begin active service in April, 2012. In May, a human resources position classifier notified Hayden’s supervisor that she needed to interview Hayden in person. As a result, his upgrade was cancelled because he was in nonpay status. In July, protocol support duties for AFSAC were transferred to another unit, reducing the need for GS-12 level employees. Hayden’s supervisor did not resubmit the upgrade request. In May 2013, Hayden received a performance feedback memorandum which stated that he was no longer working at the GS-12 level. Hayden filed a request for corrective action alleging Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301, violations. The Federal Circuit agreed with the Merit Systems Protection Board in rejecting his reemployment and retaliation claims, but vacated its rejection of his claim of discrimination based on military service and remanded.. View "Hayden v. Dep't of the Air Force" on Justia Law

Plaintiff filed suit under 42 U.S.C. 1983 against two former members of the North Carolina Army National Guard, Adjutant General William E. Ingram, and Lieutenant Colonel Peter von Jess, alleging that defendants violated his Fourth Amendment rights. Plaintiff claimed that defendants, motivated by revenge, directed other service members to monitor plaintiff’s email messages, which he sent while serving on active duty in Kuwait, and to forward incriminating messages to von Jess. The district court granted summary judgment in favor of defendants based on the justiciability doctrine in Mindes v. Seaman. Mindes provided a four-factor test for reviewability of claims based on internal military affairs. The court acknowledged that defendant now renounces any claim for equitable relief and affirmed the district court's judgment on the basis of the military abstention doctrine set forth in Feres v. United States. In this case, plaintiff's alleged injuries arose out of activity incident to his service where he was on active duty, deployed in a war zone, and used a computer system set up by the DOD for military personnel deployed at Camp Doha. View "Aikens v. Ingram, Jr." on Justia Law