Justia Public Benefits Opinion Summaries

Articles Posted in Military Law
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The U.S. military sprayed over 17 million gallons of herbicides over Vietnam during “Operation Ranch Hand,” primarily Agent Orange. Concerns about the health effects of veterans’ exposure to Agent Orange led to the Agent Orange Act of 1991, 105 Stat. 11. For veterans who served in the Republic of Vietnam during a specified period, the Act presumes exposure to an herbicide agent containing 2,4-D or dioxin, 38 U.S.C. 1116(f), and presumes a service connection for certain diseases associated with herbicide-agent exposure, such as non-Hodgkin’s lymphoma and soft-tissue sarcoma. The VA subsequently issued regulations extending similar presumptions to other groups of veterans. In 2017, the House of Representatives Armed Services Committee expressed concern that additional exposures to Agent Orange may have occurred in Guam.In 2018, MVA petitioned the VA to issue rules presuming herbicide-agent exposure for veterans who served on Guam or Johnston Island during specified periods. The VA denied MVA’s petition. The Federal Circuit rejected MVA’s petitions under 38 U.S.C. 502 to set aside the VA’s denial. MVA has not shown that the VA’s determination that the evidence did not warrant presuming exposure for every single veteran who served in named areas during the relevant period was contrary to law nor that the denial “lacked a rational basis.” View "Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs" on Justia Law

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George joined the Marine Corps in 1975 without disclosing his history of schizophrenic episodes. His medical examination noted no mental disorders. George suffered an episode during training. The Marines medically discharged him. George applied for veterans’ disability benefits based on his schizophrenia, 38 U.S.C. 1110. The Board of Veterans’ Appeals denied his appeal from a regional office denial in 1977. In 2014, George asked the Board to revise its final decision. When the VA denies a benefits claim, that decision generally becomes “final and conclusive” after the veteran exhausts the opportunity for direct appeal. George sought collateral review under an exception allowing revision of a final benefits decision at any time on grounds of “clear and unmistakable error,” 38 U.S.C. 5109A, 7111. He claimed that the Board applied a later-invalidated regulation to deny his claim without requiring the VA to rebut the statutory presumption that he was in sound condition when he entered service.The Veterans Court, Federal Circuit, and Supreme Court affirmed the denial of relief. The invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error. Congress adopted the “clear and unmistakable error doctrine” developed under decades of prior agency practice. The invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice, not “clear and unmistakable error.” That approach is consistent with the general rule that the new interpretation of a statute can only retroactively affect decisions still open on direct review. The fact that Congress did not expressly enact the specific regulatory principle barring collateral relief for subsequent changes in interpretation does not mean that the principle did not carry over. View "George v. McDonough" on Justia Law

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Groves served in the Army on active duty, 1970-1971, including service in Vietnam. In 1990, a VA regional office awarded Groves benefits for PTSD, shell fragment wounds, and a nerve injury. In 1998, Groves sought education benefits through the Vocational Rehabilitation and Employment (VRE) program. Groves never attended the initial VRE evaluation—due at least in part to the isolated nature of his town and his asserted inability to travel—notwithstanding the VA counseling officer’s attempts to accommodate Groves over a period of years. During the ensuing proceedings, Groves twice sent the VA letters in which he stated that he “enjoin[ed]” further action on the claims.“The Board of Appeals ultimately denied Groves entitlement to VRE benefits, finding that his letters did “not constitute[] withdrawal[s] of the appeal, such that there [was] no basis for the Board to not proceed.” The Veterans Court affirmed, finding that the Board lacked authority to adjudicate Groves’s appeal under “Hamilton,” which required an automatic stay when requested by a veteran but that any error was harmless. The Federal Circuit vacated. The Veterans Court legally erred in finding that the Board was compelled to grant an automatic indefinite stay of proceedings; it should have determined whether Groves had established good cause for a stay and, if so, the appropriate duration and conditions of the stay. View "Groves v. McDonough" on Justia Law

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On active Army duty in the 1970s, Kennedy fell from a lawnmower and injured his knee. Although no disability was noted at his discharge, Kennedy received service connection for his knee injury in 2000. He later received service connection for depression secondary to his knee injury. In 2005, Kennedy died; his death certificate listed “melanoma, metastatic” as the immediate cause of death and listed “other significant conditions contributing to death,” including diabetes, hypertension, and “depression disorder.” Mrs. Kennedy three times unsuccessfully sought Dependency and Indemnity Compensation (DIC), 38 C.F.R. 3.114. The VA found no evidence that Kennedy’s death was related to military service.In 2013, VA “Fast Letter 13-04, “Simplified Processing of Dependency and Indemnity Compensation (DIC) Claims,” instructed personnel to grant “service connection for the cause of death when the death certificate shows that the service-connected disability is [a] . . . contributory cause of death.” In 2015, the VA granted Mrs. Kennedy DIC, effective July, 2015. The Board of Appeals denied her appeal of the effective date, explaining that Fast Letter 13-04 was a “change[] to VA procedural manuals and guidance provisions,” not a liberalizing law or liberalizing VA issue. The Veterans Court affirmed, reasoning that Fast Letter 13-04 does not constitute a VA issue approved by the Secretary because it does not bind the Agency. The Federal Circuit affirmed. Kennedy forfeited her argument that the Veterans Court erred in its interpretation of “VA issue.” View "Kennedy v. McDonough" on Justia Law

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Slaughter served on active duty in the Navy, 1975-1995. In 2008, a VA Regional Office determined that Slaughter, who is righthanded, suffered right ulnar nerve entrapment as a result of his service and awarded a 10% disability rating under 38 C.F.R. 4.124a, Diagnostic Code (DC) 8516. Slaughter pursued a higher rating. VA examiners eventually additionally diagnosed Slaughter with a median nerve injury, not service-connected. In 2018, the Board of Veterans’ Appeals increased Slaughter’s rating for right ulnar nerve entrapment to 40%, finding that it could not distinguish the symptoms of his service-connected ulnar nerve entrapment from those of his non-service-connected median nerve injury and attributing the entirety of the disability to the service-connected injury. The Board determined that it would be inappropriate to rate Slaughter under DC 8512, which provides ratings for injuries to the lower radicular group, because only the ulnar nerve entrapment was service-connected.The Veterans Court and Federal Circuit affirmed. While the Veterans Court placed too heavy a burden on Slaughter to show prejudice, that error was harmless because the Board correctly interpreted section 4.124a. The section provides that “[c]ombined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings” and refers to service-connected injuries, not to a combination of service-connected and non-service-connected injuries. View "Slaughter v. McDonough" on Justia Law

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The 2010 Caregivers and Veterans Omnibus Health Services Act required the VA to establish two programs to help individuals who provide eligible veterans with personal care services. One program provided assistance to family caregivers, 38 U.S.C. 1720G(a); the other provided assistance to general caregivers, section 1720G(b). The VA promulgated implementing regulations, 38 C.F.R. 71 (2015). In 2018, Congress amended the Act.; the VA MISSION Act expanded the class of veterans who qualify as eligible under the family caregivers program. The program now applies to all veterans regardless of their service dates, and there are new avenues for a veteran to qualify as eligible for benefits. The VA overhauled its regulations that attempted to clarify, streamline, and regularize implementation of the Act.Objectors challenged six definitions in 38 C.F.R. 71.15 and a residency requirement imposed in 38 C.F.R. 71.10(b). The Federal Circuit addressed standing; rejected challenges to the definitions of “three or more activities of daily living,” “serious injury,” “inability to perform one or more activities of daily living,” and “monthly stipend rate”; and to the imposition of a geographic residence requirement. View "Veteran Warriors, Inc. v. Secretary of Veterans Affairs." on Justia Law

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Wolfe, who was enrolled in VA health care, obtained emergency treatment at a non-VA health care facility, incurring expenses of $22,348.25. Her employer-sponsored healthcare contract covered most of the expenses. She was responsible for a copayment of $202.93 and coinsurance of $2,354.41. The VA denied reimbursement of those expenses; 38 U.S.C. 1725(c)(4(D) bars reimbursement for “any copayment or similar payment.” Wolfe filed a Notice of Disagreement; rather than await the outcome of her appeal, Wolfe also filed a mandamus petition. The Veterans Court certified her requested class and granted her petition, invalidating a VA regulation prohibiting the reimbursement of deductibles and coinsurance for being within the category of “similar payments,” and requiring the VA to re-adjudicate claims denied under the invalidated regulation.The Federal Circuit reversed. Deductibles are excluded from reimbursement under the correct interpretation of the statute and other adequate remedies (appeal) were available with respect to coinsurance, so mandamus was inappropriate. Coinsurance is the type of partial coverage that Congress did not wish to exclude from reimbursement. View "Wolfe v. McDonough" on Justia Law

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Martinez-Bodon served on active duty in the Army, 1967-1969. In 2016, he sought benefits for diabetes and for anxiety secondary to his diabetes. At his VA psychiatric examination, he reported: “I can’t sleep well, my right eye trembles too much and that bothers me and I get very anxious about it.” He denied having other symptoms. The VA examiner found that these symptoms did not meet the “criteria for a mental condition as per DSM–5” and concluded that she could not establish a relationship between Martinez-Bodon’s diabetes and anxiety.The VA granted him a service connection for diabetes but denied him a service connection for a mental condition. The Board of Veterans’ Appeals affirmed. The Court of Veterans Claims rejected an argument that even without a formal diagnosis, his symptoms constitute a disability for service-connection purposes under Federal Circuit precedent defining “disability.” The Federal Circuit affirmed that 38 C.F.R. 4.125(a) and 4.130, “require a DSM–5 diagnosis as a precondition to compensate mental conditions.” View "Martinez-Bodon v. McDonough" on Justia Law

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Gurley served in the Army, 1972-1974 (a period of war) and the National Guard, 1975-1982. As of 1997, VA was paying him service-connected disability compensation benefits at the 100 percent disability level based on individual unemployability. In 2011, Gurley was convicted of a felony and was incarcerated for nearly six months. When a veteran is incarcerated for a felony conviction, the veteran “shall not be paid” the full amount of awarded compensation benefits “for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends,” 38 U.S.C. 5313(a)(1). Gurley’s payment should have been reduced to the 10% disability level. Gurley, however, received his full benefits because VA did not learn of his incarceration until six days after his release.The VA notified Gurley that he had been overpaid by $10,461 and that it would reduce its payment of Gurley’s current benefits “until the amount . . . overpaid is recouped.” Gurley unsuccessfully requested a waiver under 38 U.S.C. 5302 and disputed the debt. The Board of Veterans’ Appeals, Veterans Court, and Federal Circuit affirmed. The retroactive benefit reduction and recoupment of the overpayment through the withholding of continuing benefit payments were proper. View "Gurley v. McDonough" on Justia Law

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Social Security retirement benefits are calculated using a formula based on past earnings, 42 U.S.C. 415(a)(1)(A). Under the “windfall elimination” provision, benefits are reduced when a retiree receives a separate pension payment based on employment not subject to Social Security taxes. Pension payments exempt from the windfall reduction include those "based wholly on service as a member of a uniformed service.”A “military technician (dual status),” 10 U.S.C. 10216, is a “civilian employee” assisting the National Guard. Such technicians are required to maintain National Guard membership and must wear uniforms while working. For their work as full-time civilian technicians, they receive civil-service pay. If hired before 1984, they receive Civil Service Retirement System pension payments. As part-time National Guard members, they receive military pay and pension payments from a different arm of the government.The SSA applied the windfall elimination provision to the benefits calculation for Babcock, a dual-status technician. The district court and Sixth Circuit upheld that decision, declining to apply the uniformed-services exception.The Supreme Court affirmed. Civil Service Retirement System pensions generally trigger the windfall provision. Babcock’s technician work was not service “as” a National Guard member. A condition of employment is not the same as the capacity in which one serves. The statute states: “For purposes of this section and any other provision of law,” a technician “is” a “civilian employee,” “authorized and accounted for as” a “civilian.” While working in a civilian capacity, technicians are not subject to the Uniform Code of Military Justice. They possess characteristically civilian rights concerning employment discrimination, workers’ compensation, disability benefits, and overtime work; technicians hired before 1984 are “civil service” members, entitled to pensions as civil servants. Babcock’s civil-service pension payments are not based on his National Guard service, for which he received separate military pension payments. View "Babcock v. Kijakazi" on Justia Law