Articles Posted in U.S. Federal Circuit Court of Appeals

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M.L. was born in 2003. At his 15-month well-child visit, his pediatrician noted that M.L. was walking and generally developing normally but did not “want to talk.” In 2005, M.L. received several immunizations, including the DTaP vaccination. Hours later, M.L. allegedly began experiencing an abnormally high fever and swelling. He was admitted to the hospital with a diagnosis of “vaccine adverse reaction with secondary fever, angiodema, and anaphylactoid reaction.” The morning after his discharge, M.L.’s mother called an ambulance because M.L. was exhibiting signs of hypothermia and seizure-like episodes. In the months that followed, M.L.’s vocabulary allegedly decreased. An MRI of M.L.’s brain with and without contrast was normal. After observing M.L.’s developmental delays and repetitive behaviors, a pediatric neurologist placed M.L. in the autism spectrum disorder category. A special master rejected claims under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa-1 to -34, and the Claims Court affirmed. The Federal Circuit affirmed. While the DTaP vaccination likely caused the initial anaphylactic reaction, there was no reliable medical theory that the M.L.’s anaphylaxis caused a focal brain injury. View "LaLonde v. Sec'y of Health & Human Servs." on Justia Law

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The Federal Grant and Cooperative Agreement Act, 31 U.S.C. 6301, states that an executive agency must use: “a procurement contract . . . when . . . the principal purpose … is to acquire … property or services for the direct benefit or use” of the government and must adhere to the Competition in Contracting Act and the Federal Acquisition Regulation However, an “agency shall use a cooperative agreement . . . when . . . the principal purpose … is to transfer a thing of value … to carry out a public purpose of support or stimulation … instead of acquiring . . . property or service” and can avoid procurement laws. Under Section 8 of the Housing Act, HUD provides rental assistance, including entering Housing Assistance Program (HAP) contracts and paying subsidies directly to private landlords. A 1974 amendment gave HUD the option of entering an Annual Contributions Contract (ACC) with a Public Housing Agency (PHA), which would enter into HAP contracts with owners and pay subsidies with HUD funds. In 1983, HUD’s authority was amended. HUD could administer existing HAP contracts, and enter into new HAP contracts for existing Section 8 dwellings by engaging a PHA if possible, 42 U.S.C. 1437f(b)(1). Later, HUD began outsourcing services and initiated a competition to award a performance-based ACC to a PHA in each state, with the PHA to assume “all contractual rights and responsibilities of HUD.” After making an award, HUD chose to re-compete, seeking greater savings, expressly referring to “cooperative agreements,” outside the scope of procurement law. The Government Accountability Office agreed with protestors that the awards were procurement contracts. HUD disregarded that recommendation. The Claims Court denied a request to set aside the award. The Federal Circuit reversed, finding that the awards are procurement contracts, not cooperative agreements. View "CMS Contract Mgmt. Servs. v. United States" on Justia Law

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Larson, a Vietnam War veteran, suffered a gunshot wound in service. In 1969, he was granted a 40 percent combined disability rating. He did not appeal. In 2007, he claimed clear and unmistakable error (CUE), arguing misapplication of diagnostic codes in effect in 1969. The Regional Office denied his claim. The Board affirmed, stating: “the Veteran has not demonstrated that the law in effect during that time was incorrectly applied or that the correct facts, as they were known at the time, were not before the adjudicators.” The Veterans Court rejected his challenges on the merits and a motion to modify the decision by deleting the phrase “or that the correct facts, as they were known at the time, were not before the adjudicators.” Larson was concerned that the language could be interpreted as a ruling on a “correct facts” CUE claim, precluding him from raising such a claim in the future. The Federal Circuit reversed. The Veterans Court erred in holding that there is only one opportunity to raise any allegation of CUE for each claim decided by the Board. Under 38 C.F.R. 3.105(a) a veteran may raise a new argument that a RO committed CUE at any time. Larson only challenged the legal basis for the 1969 determination, and did not assert that the adjudicators did not have the correct facts before them; he remains free to raise a “correct facts” CUE claim, so his request for clarification of the Board’s decision was not moot. View "Larson v. Shinseki" on Justia Law

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When an attorney successfully represents a veteran, the Veterans Administration may directly pay reasonable legal fees to the attorney from any past-due benefits awarded to the veteran, 38 U.S.C. 5904(d). For most types of claims, an attorney has one year to challenge denial of direct pay, 38 U.S.C. 7105, but for “simultaneously contested claims,” the period is 60 days, 38 U.S.C. 7105A. A regional office applied the 60-day period to reject a challenge filed by an attorney 90 days after written denial of his direct-fee request, based on its award to the veteran on a claim other than the claim for which the attorney represented the veteran. Because the statute does not define the term, the VA relied on 38 C.F.R. 20.3(p), which explains that simultaneously contested claim refers to the "situation in which the allowance of one claim results in the disallowance of another claim involving the same benefit or the allowance of one claim results in the payment of a lesser benefit to another claimant” and its Claim Adjudication Manual’s guidance that a denial of an attorney fee request should be treated as a simultaneously contested claim. The Board of Veterans Appeals, the Veterans Court, and the Federal Circuit affirmed. View "Mason v. Shinseki" on Justia Law

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Stallworth served in the U.S. Army, 1974-1975, during which time he experienced a psychotic episode that was attributed to his illicit use of the drug LSD. He recovered with hospitalization, but relapsed following return to active duty and was diagnosed with acute paranoid schizophrenia. A treating physician noted that it was not clear whether Stallworth’s illness was caused by his drug use or by independent psychosis. An Army medical board found him unfit for further military duty. Weeks later, a VA Regional Office awarded Stallworth service connection for schizophrenia at a 50% disability rating. Thereafter, Stallworth was often admitted to inpatient psychiatric facilities where medical professionals repeatedly opined that he had “no mental disorder” and that Stallworth’s service connection diagnosis was in error. The VA severed Stallworth’s service connection on the basis of clear and unmistakable error (CUE) and declined to reopen his claim because of a lack of new evidence. In 1981, the Appeals Board affirmed. The Veterans Court and Federal Circuit affirmed. View "Stallworth v. Shinseki" on Justia Law

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Dixon served in the Army, 1979-1992, including as a chemical operations specialist in the Persian Gulf, where he was exposed to pyridostigmine and “encountered smoke from oil fires, diesel, and burning trash,” and had “cutaneous exposure [to] diesel and petrochemical fuel.” In 2003, Dixon was diagnosed with sarcoid lungs and transverse myelitis, which left him temporarily paralyzed from the waist down. He sought service-connected disability benefits. In 2004 a VA regional office denied Dixon’s claim. The Board of Veterans’ Appeals affirmed, Dixon filed a pro se notice of appeal, 60 days after the 120-day filing deadline, 38 U.S.C. 7266(a). The Veterans Court dismissed, concluding that it was “without jurisdiction.” In 2011 the Supreme Court held that the filing deadline is not jurisdictional. The Veterans Court issued an order allowing Dixon and others to move to recall the dismissals. Still acting pro se, Dixon sought equitable tolling, explaining that he suffered from physical and psychiatric disabilities that prevented him from filing in a timely manner, accompanied by a statement from his psychiatrist. The Veterans Court denied Dixon’s motion. Attorneys subsequently agreed to represent Dixon. The Veterans Court allowed until October 4, 2012 to move for reconsideration. The VA refused to provide a copy of the file and the earliest available appointment for reviewing the file was October 1. On that dated, VA staff monitored the review and declined requests for copies of documents. The Federal Circuit reversed the denial of an extension, stating that the disability compensation system is not meant as a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim. View "Dixon v. Shinseki" on Justia Law

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Sneed is the surviving spouse of Reginald, who served on active duty 1964-1968 and suffered service-connected disabilities, including post-traumatic stress syndrome, post-concussion syndrome, degeneration of the vertebrae, narrowing of the spinal column, tinnitus, a perforated tympanic membrane, and scarring of the upper extremities. In 2001, Reginald fell and suffered a spinal cord contusion, rendering him a quadriplegic. In 2003, he was living in a nursing home for paralyzed veterans. There was a fire and all of the residents died of smoke inhalation. Sneed sought dependency and indemnity compensation, 38 U.S.C. 1310, alleging that her husband’s service-connected disabilities were a cause of his death. The VA denied the claim. The Board affirmed. Sneed’s notice of appeal was due by August 3, 2011. Sneed retained attorney Eagle, communicated with Eagle’s office “for a year or longer” and stated that “Eagle knew that there was a deadline.” On August 2, 2011 Sneed received a letter stating that Eagle would not represent Sneed in her appeal. Failing to find new counsel, Sneed filed notice of appeal on September 1, 2011, with a letter explaining her late filing. The Veterans Court dismissed the appeal as untimely. The Federal Circuit vacated, holding that attorney abandonment can justify equitably tolling the deadline for filing an appeal. View "Sneed v. Shinseki" on Justia Law

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Prinkey served in the Army, 1969 to 1970, including time in Vietnam. He was diagnosed with diabetes in 1996. Diabetes mellitus type II is presumed to be service connected if the veteran was exposed to Agent Orange, 38 U.S.C. 1116(a)(2)(H) (2002). In 2003, the VA received Prinkey’s claim for benefits on account of his diabetes, asserting exposure to Agent Orange. The VA Regional Office grantedservice connection for diabetes, evaluated at 20%, and lesser rated service connection for other disabilities secondary to diabetes. Prinkey sought to reopen his claim. During reexamination, the VA concluded that his diabetes more likely than not resulted from the surgery that removed most of his pancreas following years of alcohol abuse, not from his exposure to Agent Orange. Ultimately the Board of Veterans’ Appeals sustained severance of service connection for diabetes and related disabilities and denied entitlement to a total disability rating based on individual unemployability. The Veterans Court affirmed. The Federal Circuit affirmed. Under 38 C.F.R. 3.105(d) “service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous; the VA may consider medical evidence and diagnoses that postdate the original award of service connection. View "Prinkey v. Shinseki" on Justia Law

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Geib, a World War II veteran, suffers from multiple disabilities connected to his combat service. He developed trenchfoot as a result of exposure to extreme cold weather conditions while stationed in Germany; an enemy artillery shell exploded close to Geib, causing hearing damage. The VA granted Geib disability benefits. He was assigned a 10% disability rating for trenchfoot when he was discharged in 1946. The VA increased the disability rating to 20% in 2003 to account for trenchfoot on his other foot. In 2005, Geib was assigned a 70% combined disability rating after he was diagnosed with service-connected bilateral hearing loss and tinnitus. In 2007, Geib applied for total disability based on individual unemployability, stating that he had worked as a self-employed carpet consultant, 1984-1989, prior to becoming too disabled to work. The regional office denied the claim. On remand, following medical examinations, Geib’s combined disability rating increased to 90%. The Board determined that Geib was not entitled to total disability. The Veterans’ Court and Federal Circuit affirmed. View "Geib v. Shinseki" on Justia Law

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At age four months, Elias received a Diptheria-Tetanus-acellular-Pertussis (DTaP) vaccine. Elias developed a seizure disorder shortly afterwards. While a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa-1, was pending, Elias died as a result of his seizure disorder at the age of seven. A special master determined that the DTaP vaccine caused Elias’ epilepsy and resulting death. The Secretary of Health and Human Services and the estate agreed to a $250,000 death benefit plus $175,000 for actual pain and suffering and past unreimbursable expenses. The estate also sought future lost earnings under section 300aa-15(a)(3)(B). The special master determined that the estate was entitled to future lost earnings. Subject to the right to seek review, the Secretary proffered, and the estate accepted the sum of $659,955.61 as a measure of the lost earnings. The Claims Court affirmed the special master’s future lost earnings award. The Federal Circuit reversed, holding that an estate cannot recover lost future earnings under section 300aa-15(a)(3)(B) when the person injured by a vaccine dies before entry of a compensation judgment. View "Tembenis v. Sec'y of Health & Humans Servs." on Justia Law