Justia Public Benefits Opinion Summaries

Manzanares served on active duty, 1986-1991. In 1992, she was awarded service connection for a history of stress fractures in both legs, with a non-compensable rating. In 2006, she sought an increased rating. The VA assigned a 10-percent rating for each ankle, with a February 2006 effective date. Manzanares filed a notice of disagreement and claimed: “[e]ntitlement to service connection for degenerative disc disease lumbar spine as secondary to bilateral ankle disabilities.” The VA granted secondary service connection for “degenerative arthritis and disc disease, lumbar spine” with a rating of 20 percent and an April 2007 effective date. Manzanares argued that the VA should have awarded a February 2006 effective date for the secondary service-connected condition, citing 38 C.F.R. 3.156(b), which provides that, for a pending claim, “[n]ew and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” The Board of Veterans’ Appeals, Veterans Court, and Federal Circuit rejected her argument. The effective date for service connection is the later of the date the VA receives the claim or the date that entitlement arose; Manzanares’s secondary service claim was not filed until April 2007 and was not part of the ankle claim. View "Manzanares v. Shulkin" on Justia Law

Johnson served in the Army, 1970-1971. In 2008, the VA granted Johnson a 30% rating for posttraumatic stress disorder (PTSD), and a 10% rating for tinea corporis, a skin condition which Johnson described as jungle rot under Diagnostic Code (DC) 7806. The Board of Veterans Appeals increased his PTSD rating to 70% and remanded with respect to his skin condition. After several rounds of review, the Board denied Johnson’s request for an increased rating for tinea corporis in 2014, finding that Johnson’s skin condition affected only a limited area of his body, and his topical corticosteroid treatment of that area did not qualify as a “systemic therapy” under DC 7806. The Veterans Court held that DC 7806 unambiguously defines a topical corticosteroid treatment as “systemic therapy” rather than “topical therapy.” The Federal Circuit reversed, holding that the Veterans Court gave an overly broad reading of the term “systemic therapy” in DC 7806 that encompasses any and all forms of topical corticosteroid treatment. The court noted that Johnson did not challenge factual findings that his use of topical corticosteroids affected only the area to which he applied treatment and did not affect his body as a whole, and reinstated the Board’s findings. View "Johnson v. Shulkin" on Justia Law

Presumptive service connection exists for veterans who served in the Persian Gulf War and have chronic: undiagnosed illness; medically unexplained chronic multisymptom illness (MUCMI); or any diagnosed illness as determined by the Secretary, 38 U.S.C. 1117(a)(2). VA regulations define MUCMI as “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.”. Both the statute and regulation identify sleep disturbances and signs or symptoms involving the respiratory system as possible MUCMI manifestations. The VA revised its M21-1 Manual, changing the definition of MUCMI to require “both an inconclusive pathology, and an inconclusive etiology.” Under the subsection “Signs and Symptoms of Undiagnosed Illnesses or MUCMIs,” the VA added, “Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 C.F.R. 3.317 since it is a diagnosable condition.” The Federal Circuit dismissed a veterans’ group’s petition for review for lack of jurisdiction, reasoning that the revisions are not binding and not reviewable under 38 U.S.C. 502. View "Disabled American Veterans v. Secretary of Veterans Affairs" on Justia Law

Snyder represented a veteran, Beck, under a 2001 fee agreement (38 U.S.C. 5904). Eight months later, Snyder requested the Board of Veterans’ Appeals to cancel his fee agreement. In 2003 the VA awarded past-due benefits based on a 100% disability rating effective 1992. Snyder sought attorney fees. A VA regional officer (RO) determined that Snyder was entitled to $41,920.47, deductible from the past-due benefits. Beck filed notice of disagreement. Beck died. His widow sought to recover the disputed fees as accrued benefits. The RO denied that request. The Board dismissed Beck’s dispute over attorney fees, citing 38 C.F.R. 20.1302, and remanded Mrs. Beck’s claim. The RO determined Mrs. Beck could not recover the disputed attorney fees because her husband’s claim ceased to exist upon his death. She appealed. The VA’s General Counsel published a precedential opinion stating: A claim, pending at the time of a veteran’s death, challenging an attorney’s entitlement to payment of attorney fees under section 5904 from the veteran’s retroactive periodic monetary benefits may provide a basis for an accrued benefits claim under section 5121, because such a claim concerns entitlement to periodic monetary benefits allegedly due and unpaid to the veteran at the time of death. The Federal Circuit dismissed Snyder’s appeal. That 38 C.F.R. 20.1302 requires dismissal of a veteran’s appeal upon his death has no bearing on a claimant’s separate entitlement to accrued benefits under section 5121. The attorney fee dispute remains pending. View "Snyder v. Secretary of Veterans Affairs" on Justia Law

Ollis, a veteran, sought disability benefits under 38 U.S.C. 1151, which provides benefits for certain injuries incurred as a result of VA medical care. Ollis suffers from atrial fibrillation and claims a disability resulting from complications of a heart procedure to treat that condition. The procedure (miniMAZE) was allegedly recommended by a VA doctor but was performed by a private doctor. The VA denied Ollis’s application for benefits. The Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims affirmed. The Federal Circuit vacated in part, remanding the question of whether Ollis’s VA doctors were negligent by recommending the mini-MAZE procedure to him. The Veterans Court focused on whether VA medical treatment caused Ollis to utilize Dr. Hall and Methodist Medical Center, rather than on whether VA medical treatment caused him to have the mini-MAZE procedure itself. On remand, the Veterans Court must also address the “not reasonably foreseeable” and “proximate cause of the disability” requirements. The court affirmed rejection of an argument that VA’s failure to provide him notice that a referral to a private facility for his miniMAZE procedure could extinguish his eligibility for benefits constituted a violation of his right to due process. View "Ollis v. Shulkin" on Justia Law

Monk served in the Marine Corps during the Vietnam War. In 2012, Monk sought VA disability benefits, alleging service-connected PTSD, diabetes, hypertension, and strokes. The VA denied the claim, finding that his discharge was “other than honorable.” Monk filed a Notice of Disagreement (NOD) and separately applied to the Board of Correction of Naval Records (BCNR) to upgrade his discharge status. In 2015, the VA informed Monk that it could not process his appeal until it received BCNR records. Monk sought a writ of mandamus with Veterans Court and requested that the court certify a class of all veterans who had applied for VA benefits, had timely filed an NOD, had not received a decision within 12 months, and had demonstrated medical or financial hardship (38 U.S.C. 7107(a)(2)(B)–(C)). The Veterans Court denied the request for class certification, denied another veteran’s request to join the action, and ordered the VA to respond to Monk’s petition regarding the denial of disability benefits. BCNR then granted Monk an upgraded discharge status. The Federal Circuit reversed the denial of class certification, finding that the Veterans Court has authority to certify a class for a class action and to maintain similar aggregate resolution procedures with respect to benefit denials. View "Monk v. Shulkin" on Justia Law

In 2014, the Board of Veterans Appeals denied Parrott’s claims for benefits on account of her veteran husband’s esophageal adenocarcinoma, with liver and peritoneal metastasis, and his ensuing death. The Veterans Court vacated and remanded. Parrott then timely sought attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412. The Veterans Court awarded her $4,050. The Federal Circuit affirmed, rejecting arguments that, in arriving at its award of attorney fees, the Veterans Court misinterpreted EAJA and adopted an incorrect approach for determining the cost of living adjustment to be used in calculating her attorney’s hourly rate and that the court then abused its discretion by not allowing her to resubmit her application using the approach the court had adopted. EAJA states that “attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living . . . justifies a higher fee.” The court properly rejected Parrott’s request for a cost of living increase, based on Washington D.C., based on the location of the Veterans Court and applied rates based on the locations of her attorney’s offices in San Francisco, Dallas, and Little Rock. View "Parrott v. Shulkin" on Justia Law

Kays served in the Navy, 1972-1976. In 2005, he sought benefits for disability caused by PTSD, allegedly caused by two non-combat stressors during his service. He was stabbed during a fight as he left an Enlisted Men’s Club, and while off-duty and taking diving lessons, he was asked to help with the recovery effort of a downed civilian helicopter; in the water, he was separated from the group and became stressed. Kays submitted a newspaper article, statements, records, and in-person testimony about those events. In 2005, the VA Regional Office denied Kays’s claim. The Board of Veterans Appeals remanded for further development of the record. The Regional Office again denied the PTSD claim. The Board affirmed. Meanwhile, the pertinent regulation, 38 C.F.R. 3.304(f), was amended and the Veterans Court held that the amendments were retroactive. On remand, the Board again denied Kays’s claim, finding that statements by Kays and his former spouse about the alleged stabbing were unsupported and contradicted by other evidence and that Kays’s testimony about the search and rescue was not credible because of the lack of supporting detail in the article, his delay in reporting the event, and his changing story. The Veterans Court found the Board’s decision to be a question of fact reviewed under the clearly erroneous standard. The Federal Circuit affirmed, finding that the Veterans Court applied the correct standard of review and correctly determined that the regulations require credible supporting evidence. View "Kays v. McDonald" on Justia Law

Aldridge served on active duty in the U.S. Marine Corps, 1984-1992, and was denied a disability rating higher than 10% for patellofemoral syndrome on his knees in 2013. The Board of Veterans Appeals informed Aldridge that he had 120 days to file a notice of appeal with the Veterans Court, 38 U.S.C. 7266(a), by April 23, 2014. The Veterans Court received his notice on October 27, 2014. Aldridge acknowledged that his appeal was late, but argued that deaths in his family and his resulting depressive state prevented him from timely filing. His mother died on September 27, 2013; his daughter gave birth to a stillborn child on December 16; and his sister died on January 14, 2014. He asked the court to apply the doctrine of equitable tolling. The court determined that Aldridge had failed to demonstrate that his family’s losses “themselves directly or indirectly affected the timely filing of his appeal,” noting that Aldridge closed the estates of his deceased mother and sister, became his father’s primary caregiver, maintained his job at a Veterans Affairs hospital, and attempted to hire a lawyer during the time at issue. The Federal Circuit affirmed, upholding the Veterans Court’s application of a legal standard that required proof of causation. View "Aldridge v. McDonald" on Justia Law

Hudgens injured his right knee while serving on active duty in the U.S. Army. In 2003, Hudgens had partial knee replacement surgery; in 2006, he sought VA benefits. The Board of Veterans’ Appeals denied him a disability rating of greater than 10 percent for degenerative joint disease in the right knee and denied him entitlement to a compensable disability rating for instability in the right knee for a prior time period. The Veterans Court vacated those decisions; held that Hudgens was not entitled to compensation for his prosthetic knee replacement under 38 C.F.R. 4.71a, Diagnostic Code 5055; and remanded for determination of whether his knee replacement could be rated by analogy to that code. The Federal Circuit reversed, holding that Hudgens may be compensated under DC 5055 based on his partial knee replacement. Hudgens’s interpretation of DC 5055 is consistent with the beneficence inherent in the veterans’ benefits scheme and with the majority of Board decisions that have interpreted the regulation. View "Hudgens v. McDonald" on Justia Law