Justia Public Benefits Opinion Summaries

O’Bryan served in the Marine Corps from 1973-1976. His eye problems were not noted upon his entry into service. Upon discharge, he was listed as having 20/20 vision. In 1977, he filed a claim for service-connected optic disease. In medical examinations, he variously reported that his vision started to blur in1974 or 1976. He was legally blind due to Leber’s optic atrophy within one year of discharge. Certain conditions manifesting within one year after discharge are treated as though manifested during service, 38 U.S.C. 1112(a). O’Bryan argued that his symptoms began during service; that he is suffering from a “disease”; and that, because his condition was not noted upon entry, he is entitled to a presumption that the disease was incurred in service, 38 U.S.C. 1111. The VA regional office denied O’Bryan’s claim because Leber’s is not a “disease,” but a “hereditary disorder.” The Board of Veterans’ Appeals affirmed. In 2010, O’Bryan attempted to reopen the case, but the Board rejected his contention that it had committed clear and unmistakable error. The Veterans Court affirmed. The Federal Circuit vacated, holding that the lower court misinterpreted the law on when a congenital or developmental condition is a non-compensable defect. View "O'Bryan v. McDonald" on Justia Law

Wilson served in the Navy 1986-1990 and again 1992-1994. He was given a 70% disability rating for several service-connected physical conditions. In 2001, Wilson was found guilty of attempted first degree murder and aggravated battery with a firearm and was sentenced to concurrent life terms. His convictions and sentences were affirmed. Wilson then pursued unsuccessful state and federal collateral attacks. For veterans who have service-connected disabilities rated at 20% or more and who are incarcerated for than 60 days for a felony,” 38 U.S.C. 5313(a)(1) requires reduction in compensation to the level of 10% disability, effective the 61st day of incarceration. The VA informed Wilson by letter that his rate of compensation would be reduced to 10%, effective back to December 20, 2001 and requested refund of overpayment of $15,464.50. The Regional Office Committee on Waivers and Compromises denied a waiver. Wilson was also denied a “total disability evaluation based on individual unemployability due to service-connected disabilities” (TDIU) rating on the basis that his unemployability was due to his incarceration The Board of Veterans’ Appeals applied the multi-factor test from 38 C.F.R. 1.965 to determine that recovery of the overpayment would not be against “equity and good conscience” and agreed that Wilson was not entitled to a TDIU rating. The Veterans Court affirmed. The Federal Circuit upheld the decision.View "Wilson v. Gibson" on Justia Law

Spicer served on active duty in the Navy from 1984 until 1987. In 1986, Spicer fractured his left little finger when a door closed on his hand while aboard ship. The fracture required surgery, which resulted in the finger joint fusing. In 2007, a VA examiner diagnosed Spicer as having degenerative arthritis of the distal interphalangeal joint in that finger. A VA regional office denied Spicer a compensable rating. The Board of Veterans’ Appeals found that although Spicer’s left finger disability was manifested by pain and limitation of motion, he failed to meet the criteria for a compensable evaluation for a left finger disability under either Diagnostic Code (DC) 5227 or 5230. The Veterans Court rejected Spicer’s argument that DC 5003 assigns a 10% rating for either a single affected major joint or a group of affected minor joints and that 38 C.F.R. 4.45(f) does not mandate that multiple minor joints be involved. The Veterans Court stated that “the DIP joint is not a major joint or minor joint group for the purpose of rating disabilities from arthritis.” The Federal Circuit affirmed. View "Spicer v. Shinseki" on Justia Law

Gilbert served in the Navy. His reported medical history upon entry into service revealed no psychiatric defects. After leaving service, Gilbert was diagnosed with major depression and required treatment for psychiatric illness and alcohol dependence. Gilbert acknowledged that he experienced depressive episodes and suicidal ideation throughout his life, that he has been abusing drugs and alcohol since he was a teenager, and that he continued to abuse alcohol while in the Navy. Gilbert sought compensation for psychiatric disability and other conditions with the VA. Multiple psychiatric examinations produced conflicting opinions. The VA denied service connection; the Board affirmed. The statutory “[p]resumption of sound condition” was applicable because no psychiatric condition was noted upon entry into service, 38 U.S.C. 1111; to rebut the presumption, the government had to provide clear and unmistakable evidence demonstrating that the disease existed before enrollment and was not aggravated by service. Based on Gilbert’s acknowledged history, the Board concluded that the government proved that his psychiatric illness pre-existed enrollment, but that the government failed to establish that Gilbert’s “pre-existing depression was not aggravated by active service,” and did not rebut the presumption of soundness. The Board nevertheless denied service connection, concluding that Gilbert failed to prove that his post-service psychiatric conditions “were correlated to [his] military experiences.” The Veterans Court and Federal Circuit affirmed.View "Gilbert v. Shinseki" on Justia Law

Checo sought an increased disability rating for lumbosacral spinal stenosis, including disk bulges, which was rated at a 20% disability. On July 6, 2011, the Board of Veterans’ Appeals denied her request. Checo was homeless, residing in shelters and temporary housing without the ability to receive mail. On September 27, 2011, she contacted the VA to provide a new address, and received a copy of the adverse decision on October 6, 2011; 91 days of the 120-day filing period under 38 U.S.C. 7266 had passed. On December 7, 2011, Checo filed a Notice of Appeal, 33 days late. She wrote: “Due to economic hardship, I’ve been homeless for extensive periods of time since July 2009 … and did not learn about the hearing and subsequent decision until” October 2011. The Clerk of the Veterans Court ordered the Secretary to file a response discussing whether the circumstances warranted equitable tolling of the judicial appeal period. In its response, the Secretary noted that “it appears that [Ms. Checo’s] homelessness was due to circumstances beyond her control” and that homelessness “would have delayed her filing of her NOA.” After the Veterans Court accepted the Secretary’s concession that Checo’s homelessness qualified as an extraordinary circumstance, it dismissed, finding that Checo failed to prove two other necessary elements, due diligence and direct causation,—to warrant equitable tolling. The Federal Circuit vacated. The Veterans Court used an inappropriate due diligence standard and erred in determining that homelessness did not cause the delay.View "Checo v. Shinseki" on Justia Law

Bowers served in the Army National Guard 1972-1978, with a continuous period of active duty for training from August 1972 to February 1973. His records do not reflect that he incurred any injury or disease during service. In 2009, shortly after his diagnosis with Lou Gehrig’s disease (ALS), Bowers sought benefits for ALS and secondary conditions. A VA Regional Office denied the claim, finding that his ALS was not incurred or aggravated in service. The Board of Veterans’ Appeals rejected his argument that he was entitled to presumptive service connection for ALS under 38 C.F.R. 3.318, noting that reserve duty and active duty for training of the type Bowers performed does not generally entitle an individual to evidentiary presumptions. While his appeal to the Veterans Court was pending, Bowers died and his wife was substituted as the appellant. The Veterans Court affirmed, finding that Bowers did not achieve “veteran status,” and was not entitled to presumptive service connection. The Federal Circuit affirmed. View "Bowers v. Shinseki" on Justia Law

Norma married veteran Glenn Dodson in 1949. They remained married until Glenn’s death in 1992 from cardiac arrhythmia due to amyotrophic lateral sclerosis (ALS). Norma did not seek Dependency and Indemnity Compensation (DIC) benefits as the “surviving spouse” of a veteran whose death resulted from a service-related injury or disease, 38 U.S.C. 1310–1318. Her eligibility for DIC benefits terminated upon her remarriage at age 64 in 1994. The Veterans Benefits Act of 2003 amended Title 38 to authorize DIC benefits for surviving spouses who remarry after attaining age 57 but before enactment of the amendment. Norma, who was over the age of 57 when she remarried in 1994, did not seek DIC benefits during the amendment’s one-year window. During that time, ALS was recognized as a condition that could be service-related, though not presumptively so. In 2008 the VA established a presumption of service connection for ALS. In 2009, Norma filed an application for DIC benefits as Glenn’s widow. The regional office denied the claim. The Board of Veterans’ Appeals, the Veterans Court, and the Federal Circuit affirmed, finding the claim untimely and holding that the amendment did not contemplate shifting circumstances. View "Carroll v. McDonald" on Justia Law

Beraud served on active duty in the U.S. Navy, 1974-1977, and in the reserves until 988. In 1985, Beraud filed a claim with a VA Regional Office for a headache disorder, allegedly caused by trauma suffered while on duty. Although Beraud did not appeal the RO’s denial of his claim, he sent a letter, indicating the location of additional service medical records. The RO never responded. The RO reopened the claim, but denied it on the merits in 1990, finding that Beraud did not incur the headache disorder, or aggravation thereof, during service. The RO did not refer to Beraud’s 1985 letter, nor did it mention the medical records that were the subject of the letter. Beraud did not appeal. The RO denied two later requests to reopen, finding that Beraud had not submitted new and material evidence. In 2004, Beraud submitted an informal claim for disability compensation for the same headache disorder. This time, the RO granted Beraud service connection and assigned a 50 percent disability rating, effective 2004. In 2010, the Board denied Beraud’s appeal, finding that the decisions on his 1985, 1990, 1992, and 2002 claims were final, so that an effective date prior to 2004 could not be granted. Beraud argued that his 1985 letter constituted new evidence, giving rise to a pending, unadjudicated claim. The Veterans Court affirmed. The Federal Circuit reversed. Because the VA failed to determine whether evidence Beraud timely submitted in 1985 claim was new and material under 38 C.F.R. 3.156(b), that claim remained pending, despite the subsequent final decision.View "Beraud v. McDonald" on Justia Law

Joyner served in the Marine Corps and completed a tour of duty in the Persian Gulf. During service, he was treated twice for neck pain. However, his separation from service examination indicated that his neck was “normal.” Joyner later filed a claim with the VA for disability compensation for chronic neck pain and other conditions. The VA regional office denied his claim for benefits for his neck pain. The Board of Veterans’ Appeals affirmed, concluding that Joyner did not have a diagnosed neck condition and was not entitled to service connection under 38 U.S.C. 1110, a general provision that provides compensation for disabilities suffered in the line of duty. The Court of Appeals for Veterans Claims affirmed. The Federal Circuit vacated, finding that the Veterans Court misinterpreted 38 U.S.C. 1117, an additional disability compensation provision that applies to Gulf War Veterans. Pain can evidence a disability under that section. View "Joyner v. McDonald" on Justia Law

Young served as an Army combat engineer from 1965-1967, including duty in Vietnam. In 1984, Young applied for benefits with the VA Regional Office, describing “‘anxiety,’ ‘bad nerves,’ and ‘unable to adjust to society.’” The RO interpreted the claim as seeking an award of service connection due to PTSD, but denied it after Young failed to report for a VA medical examination. In 1989, a VA psychiatrist submitted a letter, stating that Young had been under his care since 1989 and was suffering from PTSD. The RO denied Young’s claim in 1989, 1990, and 1991 because the record did not establish exposure to an in-service stressor. The Board’s 1991 denial became final because Young did not appeal. Young sought to have his claim reopened. The RO denied the request in 1992, 1993, 1995, and 1997. In 1998, the RO received service department records documenting Young’s exposure to an in-service stressor for PTSD that had not been previously associated with his file and reopened Young’s claim. The agency granted him service connection with a 100% disability rating, effective to August 1992. Young sought an effective date of September 1984. The Veterans Court concluded that the effective date should be March, 1989. The Federal Circuit affirmed. View "Young v. McDonald" on Justia Law