Justia Public Benefits Opinion Summaries

In 1996 petitioner, who had served in the Marine Corps from 1965 to 1968, filed a claim for compensation for post-traumatic stress disorder. The VA Regional Office granted the claim and assigned a disability rating of 30%, effective October 1996. Petitioner requested an increase in the percentage and made multiple submissions before 2000, when the Office increased the rating to 70%, effective July 1999. The Veterans Court affirmed as to the rating, but remanded with instructions for assigning an effective date. On remand, the Board found that a February 1998 submission met the requirements for an informal claim for TDIU and assigned an effective date of February 11, 1998 that was affirmed by the Veterans Court. The Federal Circuit vacated. To comply with the directive of 38 C.F.R. 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, the VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim; the VA failed to make such a determination.

Petitioner married in 2001. Her husband had retired unmarried under the Civil Service Retirement System and elected to receive an annuity payable during his lifetime with no survivor benefits. He died in 2003, and petitioner's application for survivor annuity benefits was denied. After considering evidence about a conversation that husband purportedly had with one of its employees, the Office of Personnel Management affirmed, stating that husband could have elected to receive a reduced lifetime annuity with survivor benefits for a new wife only by notifying OPM of his intentions in a signed writing within two years of his marriage, 5 U.S.C. 8339(k)(2)(A). An administrative judge upheld the decision, stating that the decision would become final on June 21, 2004, unless a petition for review was filed. Petitioner did not file until 2010, claiming disability made her unable to attend to the matter. The Board denied her petition for review as untimely filed, finding no credible medical evidence regarding her condition. The Federal Circuit affirmed.

In 1971 the veteran unsuccessfully sought benefits. In 1979, he sought to reopen and provided a psychiatric evaluation. The veteran took steps to appeal the regional office's refusal to reopen. The regional office requested form I-9 to "reactivate" the appeal. He responded that he had already sent the form. The VA responded in 1980 that no further action would be taken unless he submitted the form within 30 days. The veteran did not respond. In 1994, he again sought to reopen. The regional office granted him service connection for bipolar disorder with an effective date of 1994. He contended that the effective date should be 1979. In 2005 the Board rejected his "pending claim" argument because he had not filed Form 1-9 within one year of the 1979 decision. The veterans court agreed. The Federal Circuit reversed. An appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case (38 U.S.C. 7105(d)(3) ); the statute must be construed liberally. Since there was a single issue identified in the statement of the case, the 1980 letters were sufficient to identify the issue on appeal and satisfy the statute.

A veteran of the Vietnam War, who suffers from post-traumatic stress disorder and schizophrenia, applied for disability benefits in 1981 but his claim was rejected. Years later, the Veterans Court concluded that he was entitled to benefits stemming from the initial claim. The veteran challenged the procedures of the Board of Veterans Appeals in retrospectively assessing his level of disability during the years 1980 to 2007. The Federal Circuit upheld the determination, stating that the legal process was sufficient to satisfy Fifth Amendment rights. The veteran has had his day in court concerning the staged rating assessment, which included a total disability period exceeding five years and reduction of the rating during subsequent periods.

Petitioner served in active military duty from 1972 to 1979, and in the National Guard before and after active service. He also worked as a laborer in a supply company and in coal mines and as a carpenter. In 1997, he claimed entitlement to TDIU, which provides a veteran with a total disability rating when his disability rating is below 100% if the veteran is at least 60% disabled, meets other disability rating criteria, and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 1 C.F.R. 4.16(a). The VA rejected the claim and, on three remands, petitioner underwent a total of five VA medical examinations. In 2007, the Board denied the claim. The Veterans Court and Federal Circuit affirmed. The VA was not obligated to obtain an industrial survey from a vocational expert in order to evaluate whether petitioner was employable in a job other than his former occupation (i.e., a job that did not involve heavy manual labor).

The World War II veteran died in 2004, during litigation of whether a hip injury was service-related. The VA dismissed a pending appeal as moot and rejected the widow's request to be substituted. The Federal Circuit reversed. The widow filed her own claim for accrued benefits. The motion to substitute was denied, but the widow was awarded accrued benefits and sought $87,802.17 in attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. 2412. The veterans' court determined that the widow had the right, as representative of the estate, to recover fees for attorney hours expended prior to his death, but had no right to recover fees for work performed after her husband’s death. The Federal Circuit reversed, stating that attorney work performed after the veteran's death was directly related to his claim; it was his claim, not the widow's claim, that was being litigated.

In 1968, petitioner sustained a gunshot wound to his thigh. In 1995 he was granted service connection for the thigh wound, shrapnel wounds on forehead, and post-traumatic stress disorder. Petitioner appealed the rating, referring to pain and the inability to stand. The Veterans' Court remanded for an examination to determine muscle injury. The rating did not change; the board and the court affirmed, rejecting an argument that a change in diagnostic code to represent an injury to a different muscle group was an impermissible severance of service connection under 38 U.S.C. § 1159, which provides that service connection in force for ten or more years shall not be severed, except upon proof of fraud or that the veteran did not have the requisite service or discharge. The Federal Circuit affirmed, reasoning that a diagnostic code is most similar to the level of disability element of a claim for benefits and is not protected by the statute. The disability remains the same and remains service-connected.

The veteran, active in the Navy 1968-1971, reported traumatic events during a 1991 psychiatric evaluation. In 1993-1994 he sought benefits for post-traumatic stress disorder, again reporting an incident involving the death of a friend. In 1999 the VA awarded 100% disability, effective as of 1993. The veteran's complaints about how his claim was handled led to an OIG inspection in 2004, which disclosed that the veteran was not present at the accident that killed his friend. The veterans' court upheld a decision to severe benefits on the basis of fraud. The veteran had already receive about $320,000 and was subsequently convicted of fraud and sentenced to 48 months in prison and ordered to pay restitution. The federal circuit affirmed the veterans' court. The veteran had only claimed one stressor, so the VA was not required to investigate other possible stressors before terminating benefits. The VA properly followed its own procedures after determining that the matter exceeded the jurisdictional cap under the Program Fraud Civil Remedies Act, 31 U.S.C. 3801. The Act is not an exclusive remedy and the veteran was afforded due process.

Records indicate that the veteran's knee was injured in 1949 while he was playing football with a military team. Treatment at a field hospital in Germany included x-rays that revealed no bone or joint injury. The knee was not treated again until 1999, when the veteran claimed service-related disability. X-rays at a VA clinic showed minimal degeneration consistent with osteoarthritis. On remand, for the VA's failure to assist the veteran, instructions to the VA hospital stated "NO EXAM" and indicated a file review, but did state that an exam was allowable if necessary. The Veterans' Court upheld a second denial of benefits. The Federal Circuit affirmed; the Veterans Court acted correctly in not requiring the Board to state reasons why the medical examinersâ reports were competent and sufficiently informed. The court noted that the veteran did not raise his concerns about the instructions with the Board and that it cannot review a challenge to a law or regulation as applied to the facts of a particular case under 38 U.S.C. 7292.

The plaintiff was an "excepted" (not in the competitive service or the Senior Executive Service) employee of the Veterans Canteen Service and was not preference-eligible (as a veteran or close relative). She appealed a notice of termination for misconduct. The Merit Systems Protection Board dismissed for lack of jurisdiction because she had been hired under 38 U.S.C. 7802(e). The Federal Circuit affirmed, holding that the plain language of the statute allows removal of such employees without regard to other civil service laws. Civil Service Due Process Amendments in 1990 did not extend protections to excepted, non-preference eligible employees.