Articles Posted in US Court of Appeals for the Federal Circuit

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Cook served on active duty in the Navy, 1972-1973. Cook’s service records indicate that he experienced back pain. In 2000, Cook sought service connection for back problems and later filed a claim for total disability based on individual unemployability (TDIU), also back-related. The regional office (RO) denied both claims. Cook appealed and testified at a Board hearing in 2012. The Board remanded; the RO again denied both claims. Cook again appealed and requested an additional hearing to present further evidence. The Board denied Cook that additional hearing and denied both of his claims. The Veterans Court, upon joint motion, vacated and remanded because the Board did not adequately explain its decision. On remand, Cook again requested another Board hearing. The Board denied a hearing and denied Cook’s claims for service connection and TDIU. The Veterans Court vacated and ordered a hearing. The Federal Circuit affirmed. The Veterans’ Judicial Review Act codified a veteran’s longstanding right to a Board of Veterans’ Appeals hearing, 38 U.S.C. 7107(b). The courts concluded that the statute entitles an appellant to an opportunity for a hearing whenever the Board decides an appeal, including on remand. View "Cook v. Wilkie" on Justia Law

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Garcia served in the Army from 1952-1954. The military’s records of his medical treatment during service were among those destroyed in a fire in 1973 at the National Personnel Records Center in St. Louis. The record of his medical examination upon leaving the service was not destroyed and reveals a normal psychiatric state and no severe illnesses or injuries. Garcia saw Dr. Smoker, in 1965 for a burn from a welding accident. In 1969, Dr. Smoker diagnosed Garcia with, and prescribed medication for, paranoid schizophrenia. In 2002, Garcia sought disability benefit, alleging service connection of disability-causing paranoid schizophrenia. The regional office denied the claim. The Board of Veterans’ Appeals remanded for a VA psychiatric examination. Although García claimed to have been seen twice for his condition while in service, a VA examiner found it “impossible to say, without resorting to mere speculation, as to whether this veteran’s schizophrenia, paranoid type actually started in Service, without more documentation and records.” The previous denial was “confirmed.” Garcia collaterally challenged the 2006 Board decision, alleging clear and unmistakable error (CUE). The Board and Veterans Court rejected Garcia’s CUE arguments. The Federal Circuit affirmed, upholding the Veterans Court’s application of 38 C.F.R. 20.1409(c) to bar a due process allegation of CUE. View "García v. WIlkie" on Justia Law

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Robinson served in the Marine Corps in the 1960s, with a deployment in Vietnam. He subsequently experienced heart problems. In 20016, Robinson saw his VA cardiologist, Dr. Sadoughian, who recommended diagnostic testing, but the testing was not performed. Nine months later, Robinson returned after a week in the hospital with blood clots in his leg. Dr. Sadoughian again recommended testing. Robinson received the prescribed testing in April 2007, 14 months after his initial recommendation. The results indicated “[c]oronary artery disease with prior inferior wall myocardial infarction.” In August 2010 the VA amended its regulations to add coronary artery disease to its list of conditions that are presumptively service-connected for veterans who were exposed to certain herbicides, 38 C.F.R. 3.309(e). In 2011, the VA retroactively granted disability benefits to Robinson for that disease following a “Nehmer” review. The Board of Veterans’ Appeals denied Robinson’s claim for an earlier effective date because the April 2007 test results were the earliest medical evidence demonstrating that he satisfied the criteria the disability rating. Robinson argued that he should not be penalized for the delay in scheduling tests and that he would have received an earlier effective date if the VA had provided him with prompt treatment as required by section 17.33(a)(2). The Board concluded that section 17.33 applies only to treatment and has no bearing on effective date criteria. The Veterans Court and Federal Circuit affirmed, noting that the record did not indicate what caused the testing delay or whether Robinson would have satisfied the disability rating requirements earlier. View "Robinson v. Wilkie" on Justia Law

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Cousin served in the Army, 1951-1953. His entrance examination showed normal findings as to his back. In service, he injured his back while lifting cans; a month later, he complained of back pain. He was diagnosed with a mild back strain and placed on medically restricted duty. In 1952, his back condition was noted to have improved, and he was removed from restricted duty. Records from 1953 note back pain before service; an x-ray showed a “pedicle defect L5” and “spondylolysis.” He was placed on a permanent profile for a “weak back.” An examination report of his discharge noted his back had been taped in 1952 and that he was then asymptomatic. In 1954, Cousin unsuccessfully sought disability compensation for his back condition. Between 1979-2009, Cousin filed three unsuccessful applications to reopen that claim. In 2012, Cousin filed another application. In 2013, the regional office granted him service connection for a back disability effective January 2012. Cousin filed a Notice of Disagreement, arguing that an earlier effective date was warranted because there was clear and unmistakable error (CUE) in the prior denials. The Veterans Court upheld the denial, finding the Board “offered a plausible explanation for why the RO may have discounted the 1953 records.” The Federal Circuit reversed. Given the proper legal interpretation of defect in the regulation then in effect and the government’s factual concessions, the regional office could not, without error, have determined that spondylolysis was a “defect.” The 1954 decision contained CUE.VA View "Cousin v. Wilkie" on Justia Law

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In April 2009, E.O. visited a pediatrician for his six-month visit and received several vaccinations. That night, Mrs. Oliver found E.O. seizing in his bed and called 9-1-1. At the emergency room, E.O. presented with a fever, red eyes with discharge, and a runny nose. The next day, E.O.’s pediatrician diagnosed E.O. with “complex febrile seizure and conjunctivitis.” E.O. did not have any health issues or seizures for two months but had several seizures over the summer and began to experience prolonged seizures in March 2010. Each seizure resulted in an emergency room visit. A pediatric neurologist diagnosed E.O. with an SCN1A gene defect. E.O. exhibited developmental delay. A pediatric neurologist performed examinations, which demonstrated “intractable, symptomatic childhood absence and complex partial seizures of independent hemisphere origin secondary to SCN1A gene defect (borderline SMEI syndrome) and encephalopathy characterized by speech delay.” E.O.’s family sought compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa-2–300aa-33, alleging that E.O. developed Dravet syndrome as a result of the vaccinations. The Claims Court and Federal Circuit affirmed the rejection of their claim. The government’s expert provided strong evidence that Dravet syndrome will develop in children with the SCN[1]A mutation, whether or not they receive vaccinations; the Olivers failed to establish that their theory has garnered widespread acceptance, as evidenced by an extensive discussion of articles with contradictory findings. View "Oliver v. Secretary of Health and Human Services" on Justia Law

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Arthur served on active Army duty, 1940-1945, as a prisoner of war of the German government for 25 months. He was service-connected for several disabilities and had VA claims pending when he died in 2011. Winters pursued those as a substituted claimant and her own claims for accrued benefits as his surviving spouse. In 2013, the Board of Veterans’ Appeals denied some claims and granted service-connected benefits for others, found that the awards were inextricably intertwined with Winters’s accrued benefits claim, and remanded for initial disability ratings and to readjudicate the accrued-benefits claim. The Board determined that a subsequent letter in which Winters sought earlier dates “d[id] not constitute [a] motion for revision,” directed the letter to the Regional Office, but did not notify Winters of its determination so that the 120-day appeal period did not start to run. In 2014, the Board denied Winters’s claims for entitlement to an earlier effective date and for accrued benefits. In 2016, the Veterans Court dismissed an appeal of the 2013 decision for lack of jurisdiction and vacated the 2014 decision as premature because the 2013 decision was not final. Winters sought attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. 2412(d) for that decision. The Federal Circuit affirmed the denial of her application. The court lacked jurisdiction to award EAJA fees relating to an appeal over which it did not have jurisdiction. With respect to the 2014 Board decision, Winters was not a “prevailing party.” View "Winters v. Wilkie" on Justia Law

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The VA denied the veterans’ claims for service-connected disability benefits. Based on delays in their cases, they sought writs of mandamus in the Veterans Court. The Federal Circuit vacated that court’s denial of relief, finding that the court did not apply the proper standard. The court noted the significant delays that occur in most cases and that the government has not explained the cause of the delays; the petitions alleged that a veteran whose disability benefits are denied waits, on average, 1448 days after the denial for a ruling on an appeal.” Whether the agency’s delay is so egregious as to warrant mandamus under the “TRAC” standard requires consideration of six factors: the time agencies take to make decisions must be governed by a “rule of reason”; where Congress has provided an indication of the speed with which it expects the agency to proceed, that statutory scheme may supply content for this rule of reason; delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority and the nature and extent of the interests prejudiced by delay; and the court need not find “any impropriety lurking behind agency lassitude” in order to hold that agency action is unreasonably delayed. View "Martin v. O'Rourke" on Justia Law

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Four veterans appealed the VA's denial of their claims for service-connected disability benefits. Based on delays in their cases, they unsuccessfully sought writs of mandamus from the Veterans Court. The Federal Circuit remanded two cases, citing its 2018 decision, Martin v. O’Rourke, so that the mandamus petitions may be considered under the TRAC standard: “whether the agency’s delay is so egregious as to warrant mandamus.” The TRAC standard involves six factors: the time agencies take to make decisions must be governed by a “rule of reason”; where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed, that statutory scheme may supply content for this rule of reason; delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; the court should also consider the nature and extent of the interests prejudiced by delay; and the court need not find “any impropriety lurking behind agency lassitude” to hold that agency action is unreasonably delayed. One veteran had died, rendering his appeal moot and another had his claim for benefits granted. View "Rose v. O'Rourke" on Justia Law

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Acree served on active duty in the Navy from 1985-1989 and 2007-2008. He was deployed to Iraq and received Seabee Combat Warfare Medals. Acree was diagnosed with post-traumatic stress disorder (PTSD) while serving in Iraq. After leaving the service, Acree filed several claims for service-connected disability benefits and appealed 11 claims to the Board of Veterans’ Appeals. A representative from the Disabled American Veterans (DAV) organization was present with Acree at the board hearing. Acree said “yes” when asked to withdraw seven issues. The board listed the four issues that would be discussed and would “continue to be in appellate status” and asked the DAV representative whether it had “correctly identified the issues.” The representative responded: “Yes.” The board remanded four and dismissed seven claims. Acree appealed, arguing that a veteran’s withdrawal of a claim “is not effective unless the withdrawal ‘is explicit, unambiguous, and done with a full understanding of the consequences’” and that since he “ha[d] a long history of taking psychotropic medications,” the hearing officer should have inquired as to his capacity to appreciate the consequences of dismissing the claims. The Veterans Court affirmed, citing the hearing transcript. The Federal Circuit vacated. Precedent (DeLisio) explicitly states that a withdrawal is effective only if undertaken with “a full understanding of the consequences of such action on the part of the [veteran].” The Veterans Court was required to make that determination even though a DAV representative was present. View "Acree v. O'Rourke" on Justia Law

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Robinson, a Marine Corps veteran, served in Vietnam from 1966-1969 and later had coronary problems. He sought treatment at a VA medical facility. In 2006, a VA cardiologist recommended that he undergo certain medical testing. The tests, performed 14 months later, revealed that Robinson suffered from left ventricular diastolic dysfunction. The VA granted Robinson a 60% disability rating effective April 2, 2007, the date he underwent cardiac testing. The Board denied Robinson entitlement to a higher rating. In the Veterans Court, Robinson argued for the first time—through the same counsel that represented him before the Board—that his rating should have been assigned an effective date in February 2006, when his doctor ordered tests. The court did not identify any error by the Board but “set aside” its decision and remanded for it to address Robinson’s argument in the first instance. Robinson sought attorney fees, arguing that, because he secured remand, he was a prevailing party under the Equal Access to Justice Act. The Federal Circuit affirmed denial of Robinson’s application. This particular remand did not confer prevailing party status on Robinson because it “was not predicated on administrative error by the Board,” did not materially alter the legal relationship of the parties, and was solely to allow the Board to consider an issue first raised on appeal. View "Robinson v. O'Rourke" on Justia Law