Justia Public Benefits Opinion Summaries

Pitts, the surviving spouse of an Army veteran, filed for dependency and indemnity compensation from the VA in 2001. The Board of Veterans’ Appeals affirmed. In 2012, Pitts employed attorney Viterna. Their fee agreement was filed with the VA and provided that Viterna was owed 20% of any past-due benefits Pitts recovered, less certain expenses but applied only to claims for which a notice of disagreement was filed after June 20th, 2007; the NOD covering the 2001 claim was filed in 2005. Viterna asserts that this was an “unintentional drafting error.”In 2014, Viterna secured past-due benefits for Pitts, which related back to the 2005 NOD. The agency refused to pay Viterna 20% of those benefits. The Board affirmed. Before the Veterans Court, Viterna argued that Congress only gave the VA the power to assess whether a fee agreement was valid and if its terms were excessive or unreasonable—not whether the agreement covered the claim at issue.The Veterans Court and Federal Circuit disagreed. There was no qualifying agreement between Viterna and Pitts providing for payment of a fee for the claim in question. The court noted that between 1988-2006, attorneys could only charge fees for representing claimants after the Board’s “final decision.” In 2006, Congress amended 38 U.S.C. 5904, effective June 20th, 2007, to allow attorneys to charge for VA representation as soon as a claimant had filed a NOD seeking review of a regional office decision. View "Viterna v. McDonough" on Justia Law

Pickett served in the Army from 1969-1971, including service in Vietnam. In 2004, sought service-connected compensation for an anxiety disorder, which he attributed to exposure to Agent Orange or other herbicides. The VA eventually granted Pickett service-connected compensation for post-traumatic stress disorder (PTSD) and coronary artery disease (CAD) effective 2004. Pickett appealed, seeking a total disability rating based on individual unemployability (TDIU), starting in 2007, the date he last worked. A 2013 VA decision denied the application. The VA notified Pickett that he had a year to appeal. He did not appeal. A 2014 decision listed the 2013 decision and proposed decreasing Pickett’s PTSD rating. Pickett only challenged the proposed reduction.In 2017, Pickett filed a supplemental claim and new TDIU application, again citing service-connected CAD and PTSD. The VA awarded Pickett TDIU due solely to PTSD and increased his ratings, effective January 2017. Pickett filed a notice of disagreement, citing 38 C.F.R. 3.156(b), and arguing he was entitled to “an extra-schedular total rating,” which could include TDIU, effective from 2007.The Board of Veterans’ Appeals, Veterans’ Court, and Federal Circuit denied Pickett an earlier effective date. Pickett’s failure to perfect an appeal following the 2013 or 2014 decisions meant that his 2004 claim for the maximum CAD evaluation—including entitlement to TDIU—became final by 2017. The finalized claim could not provide a basis for an earlier entitlement to TDIU. View "Pickett v. McDonough" on Justia Law

Roane served in the Navy from 1981-1991. In 2013, he underwent vocational rehabilitation for disabilities, including sciatic nerve paralysis, degenerative spinal arthritis, and limited knee flexion. In 2017, he applied for total disability based on individual unemployability (TDIU), alleging that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. He then had a combined disability rating of 70 percent, 38 U.S.C. 1117. Between 2016-2019, several VA examinations established his inability to sit or stand for extended periods and difficulty changing positions from sitting to standing. In 2017, a peripheral nerve examiner opined that despite these limitations, he should be able to “seek and maintain a substantially gainful light physical or sedentary type of employment.” The VA regional office denied his TDIU claim. Roane submitted additional evidence, including a private vocational assessment where the expert opined that his difficulties with prolonged sitting, standing, and walking “affect his ability to perform any type of substantially gainful employment, even sedentary employment.”The Board found that Roane’s service-connected disabilities met the rating requirement of 70 percent for TDIU, noting Roane’s college education, skills, and experience. The Veterans Court and Federal Circuit affirmed. The Veterans Court properly interpreted the benefit-of-the-doubt rule under 38 U.S.C. 5107 and applied the appropriate standard of review to the Board’s application of that rule under 7261(b)(1). View "Roane v. McDonough" on Justia Law

Military-Veterans Advocacy (MVA) filed suit under 38 U.S.C. 502, seeking review and revision of certain instructions and practices set forth in the Veterans Affairs Adjudication Procedures Manual (M21-1 Manual), which provides guidance and instructions to the administrators of veterans’ benefits and claims, by interpreting and coordinating the application of statutes, regulations, policies, and judicial decisions. The M21-1 Manual “limits VA staff discretion, and, as a practical matter, impacts veteran benefits eligibility for an entire class of veterans.”The Federal Circuit dismissed challenges to presumptions and procedures concerning Vietnam-era exposure to the Agent Orange defoliant. MVA waived its challenge to the “Thailand Rules.” The VA’s interpretation of the “Blue Water Navy Rule” of 2019 did not unduly narrow the presumption of exposure and service connection as applied to shipboard service. MVA’s challenge to the “Airspace Rule” is barred by the six-year limit provided in section 2401(a) because the rule has been in full force and effect since 1993. Even if the time bar did not apply, Congress has consistently preserved the high-altitude exception to the presumption of exposure since its adoption in 1993. View "Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs" on Justia Law

Crews served in the Air Force from 1954-1958. In connection with his service, he was originally granted a 100% disability rating for schizophrenia. In 1960, his disability rating was lowered to 70%. In 2006, Crews sought an increased schizophrenia rating, which was denied in 2007. In 2009, Mrs. Crews (Yvonne) submitted a letter stating that Crews was 100% disabled and requested further evaluation; she did not mention an effective date. The VA responded that it would not consider the letter a notice of disagreement (NOD) with the 2007 decision because it was filed more than one year after that decision. It construed the letter as a new “claim for an increased rating. In March 2010, the VA increased his schizophrenia rating from 70% to 100% effective from September 2009. In October 2010, Crews died. In 2011, Yvonne moved to be substituted as the appellant and filed a notice of disagreement with the 2009 effective date, alleging clear and unmistakable error (CUE) in the 1960 rating decision.The VA rejected her request for substitution because Crews had no claim or NOD pending at the time of his death. Yvonne was not eligible to seek benefits on past decisions that had been finalized; the 1960 rating decision became final once the appeal window closed. The Veterans Court and Federal Circuit affirmed. Yvonne’s CUE allegation is not part of a “pending” claim for which she could substitute under 38 U.S.C. 5121A. View "Crews v. McDonough" on Justia Law

Spicer served in the Air Force from 1958-1959 and was exposed to benzene in aircraft fuel. Years later, he developed chronic myeloid leukemia, a blood cancer. The VA recognized his leukemia as service-connected and granted him a 100 percent disability rating. Spicer developed arthritis in both knees, which required him to use a wheelchair. His scheduled knee replacement surgery was canceled because the leukemia medications lowered his hematocrit (red blood cell level). Spicer's hematocrit will never rise to a level that would permit surgery. He sought secondary service connection for his knee disability. The Board of Veterans’ Appeals and Veterans' Court affirmed the VA's denial of his claim. The statute, 38 U.S.C. 1110 establishes entitlement to service connection, providing compensation for veterans “[f]or disability resulting from personal injury suffered or disease contracted in line of duty.” The court reasoned that unless “the current state of his arthritis would not exist in the absence of his cancer or chemotherapy,” there is “no actual but-for causation.”The Federal Circuit vacated. Section 1110 provides that the United States will pay a veteran “[f]or disability resulting from personal injury suffered or disease contracted in line of duty”; “disability” refers to a veteran’s present-day “functional impairment.” “Resulting from" requires “but-for causation,” which is not limited to bringing something about or the onset or etiological link. That language may encompass situations where the service-connected disease or injury impedes the treatment of a disability. View "Spicer v. McDonough" on Justia Law

May is a disabled child of a deceased veteran. The VA found that May was disabled from birth, with permanent incapacity for self-support, and granted him entitlement to dependency and indemnity compensation (DIC) benefits in October 2018, with an effective date of May 18, 2016, concluding that May’s entitlement to DIC benefits ended on February 1, 2017, when he married. May sought reinstatement of DIC benefits based on his divorce. May filed a notice of appeal to the Veterans Court in February 2021, listing the date of the Board’s decision as February 19, 2019. The Board had not rendered a decision on February 19, 2019; rather, May had received correspondence that day from a VA regional office certifying an appeal to the Board.The Veterans Court ordered May to show cause why his appeal should not be dismissed. In letters, May asked that his appeal not be dismissed and that his benefits be reinstated. May did not identify a Board decision from which he was appealing, nor did he argue that the Board had unreasonably delayed its decision. The Federal Circuit affirmed the dismissal of the appeal for lack of jurisdiction. The court’s jurisdiction is limited to appeals from Board decisions; absent such a decision, it could not consider May’s appeal, 38 U.S.C. 7252(a), 7266(a)). View "May v. McDonough" on Justia Law

Doyon served in the Navy, 1966-1968; he received several medals and commendations. In 1967, Doyon witnessed the immediate aftermath of an explosion and fire that resulted in more than 130 deaths. When four of his friends went AWOL. Doyon was allegedly harassed and threatened by his shipmates. In 1968, Doyon went AWOL for two days. Upon his return, Doyon was referred to the sick bay. He was sedated with Thorazine, and later was diagnosed with “passive-aggressive personality disorder.” Doyon later witnessed a fatal plane crash, including the dismemberment of a fellow Airman, while he was standing duty at a video recording console. Doyon later spent hours replaying video recordings of the crash for Report Personnel. In 1968, Doyon was discharged. Doyon’s DD-214 form characterized his discharge as “Honorable,” and the “Reason and Authority” field contained a code indicating unsuitability due to a personality disorder. Doyon was not eligible to receive a military disability retirement.In 2013, Doyon unsuccessfully petitioned the Board for the Correction of Naval Records to correct his service records to state that he was discharged for service-connected PTSD, to be eligible for disability retirement payment under 10 U.S.C. 1201. The Claims Court upheld the denial. The Federal Circuit vacated. Doyon challenges the correctness of the narrative reason for his discharge, as stated in his military records. Both 10 U.S.C. 1552(h) and a Department of Defense memorandum (Kurta Memo) require “liberal consideration” for such correction requests. View "Doyon v. United States" on Justia Law

Approximately 30 years after Arellano’s honorable discharge from the Navy, a VA regional office granted Arellano service-connected disability benefits for his psychiatric disorders. Applying the default rule in 38 U.S.C. 5110(a)(1), the VA assigned an effective date of June 3, 2011—the day that it received Arellano's claim—to the award. Arellano argued that the effective date should be governed by an exception in section 5110(b)(1), which makes the effective date the day following the date of the veteran’s discharge or release if the application “is received within one year from such date of discharge or release.” Alleging that he had been too ill to know that he could apply for benefits, Arellano maintained that this exception’s one-year grace period should be equitably tolled to make his award effective the day after his 1981 discharge.The Board of Veterans’ Appeals, Veterans Court, Federal Circuit, and Supreme Court disagreed. Section 5110(b)(1) is not subject to equitable tolling. Equitably tolling one of the limited exceptions would depart from the terms that Congress “specifically provided.” The exceptions do not operate simply as time constraints, but also as substantive limitations on the amount of recovery due. Congress has already considered equitable concerns and limited the relief available, aware of the possibility that disability could delay an application for benefits. View "Arellano v. McDonough" on Justia Law

Cooper served on active duty in the Marine Corps from March-September 1972 and from February-April 1973. In 2008, the VA granted Cooper entitlement to a non-service-connected (NSC) pension. In 2014, the VA notified Cooper that it had adjusted his income from December 2008-2010 based on his receipt of unemployment compensation from the state of Wisconsin, which resulted in an overpayment of $13,094.The Board of Veterans’ Appeals and Veterans Court found that unemployment compensation payments are not excluded from a veteran’s annual income under an exception for “donations from public or private relief or welfare organizations,” 38 U.S.C. 503(a)(1). The Federal Circuit affirmed NSC pensions are need-based, so the maximum annual rate of pension is “reduced by the amount of the veteran’s annual income.” In general, a veteran’s “annual income” includes “all payments of any kind or from any source,” 38 U.S.C. 1503(a). View "Cooper v. McDonough" on Justia Law