Justia Public Benefits Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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Mote served in the Air Force, 1961-1965, participating in missions to Vietnam, where Agent Orange was deployed. Mote later developed coronary artery disease and lung cancer. In 2010, Mote filed a disability claim based. In 2013, Mote filed his Notice of Disagreement with the denial of that claim. He died months later. Mrs. Mote substituted for his claim and filed a dependency-and-indemnity compensation claim. The VA denied Mrs. Mote’s claim in 2015; she filed her Notice of Disagreement and requested a Board of Veterans’ Appeals “Travel Board hearing.”Mote sought mandamus relief, 28 U.S.C. 1651, alleging unreasonable delay. The Veterans Court denied the petition, applying the “Costanza” standard. The government claimed, due to limited resources, it “could not predict how long” Mote might have to wait for a hearing. The Federal Circuit consolidated her appeal with others and held that the Veterans Court should use the Telecommunications Research & Action Center v. FCC (TRAC) standard to evaluate unreasonable-delay mandamus petitions rather than the Costanza standard. On remand, Mote requested a “reasoned decision” from the Board (within 45 days) and periodic progress reports. In March 2019. the Board scheduled her Travel Board hearing for May 2019. The Veterans Court dismissed Mrs. Mote’s mandamus petition without applying the TRAC standard. The Board subsequently remanded for further factual findings.The Federal Circuit again remanded, for a TRAC analysis, noting that Mote sought progress reports, in addition to a decision, and that the Veterans Court was not powerless to fashion other relief, such as a more lenient, specific, deadline. Whether a delay is so egregious as to justify the extraordinary writ depends on issues that are likely to arise frequently among veterans. The Veterans Court is uniquely well-positioned to address these issues first. View "Mote v. Wilkie" on Justia Law

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John served in the Army in the 1960s. In 1972, John and Roberta married. In 2001, they separated. In 2005, a New York court issued a Separation Judgment, requiring John to pay Roberta $300 per month in spousal maintenance. In 2006, the VA granted John service connection for various disabilities; he began receiving monthly compensation. The New York court held a hearing where both parties appeared with counsel with a proposed settlement. That Stipulation provided that no later than December 2006 John was to pay Roberta $7,000 for past and future maintenance, health insurance, and other obligations. John made the payment. In 2010, following John’s relocation, a Pennsylvania state court issued a Divorce Decree.In 2008, Roberta had filed a VA claim for apportionment, 38 U.S.C. 5307, of John’s disability benefits. John objected, arguing only that the 2006 Stipulation “precluded” the claim. The VA denied Roberta’s claim, despite her demonstrated financial need, concluding she had “voluntarily renounced" maintenance or support. The Board of Veterans’ Appeals granted Roberta special apportionment from the 2008 date of her claim until the date of her 2010 divorce. The Veterans Court and Federal Circuit affirmed. A state court domestic relations separation agreement plays no role in VA’s determination of entitlement to special apportionment. John’s remedy lay in state court where he could sue for breach of contract. Special apportionment turns not on the veteran’s degree of support but on the dependent’s showing of hardship. View "Batcher v. Wilkie" on Justia Law

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Graham served in the Marine Corps from 1967-1970 and has been receiving disability compensation benefits since 2001. The VA regional office (RO) informed Graham in 2009 that authorities had identified him as a fugitive felon and the subject of an outstanding warrant issued in 1992. That warrant was withdrawn in February 2009. In May 2009, the RO issued a rating decision that retroactively discontinued Graham’s compensation from December 2001 through February 2009, due to his then-fugitive felon status, and informed Graham that he had been improperly paid $199,158.70 and that his monthly compensation would be partially withheld to pay back the debt.Graham appointed Gumpenberger as his representative on appeal and signed a direct-pay agreement stating that Gumpenberger’s fee would be “20 percent of all past-due benefits awarded … as a result of winning … as provided in 38 C.F.R. 14.636.” In 2013, the Board reversed the RO’s debt ruling, finding that Graham was not a fugitive felon for VA purposes because he had never been aware of the outstanding warrant. The VA had recouped $65,464 from Graham’s monthly benefits. The Veterans Court and Federal Circuit affirmed the RO’s determination that Gumpenberger was entitled to a fee of $13,092.80. Although the total debt invalidated was $199,158.70, the past-due benefit, per 38 U.S.C. 5904(d)(1), being awarded was $65,464. View "Gumpenberger v. Wilkie" on Justia Law

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Garvey served in the Army, 1966-1970. While posted in Germany, Garvey was punished for “disorderly conduct.” Garvey was posted to Vietnam, where he was convicted by special courts-martial of possessing four pounds of cannabis with intent to sell and of being absent without leave three times. Garvey was discharged as unfit for service with an “Undesirable Discharge.” He waived consideration of his case before a board of officers and acknowledged that he “may be ineligible for many or all benefits as a veteran.” In 1977, under the Special Discharge Review Program for Vietnam-era service members, Garvey’s discharge status was upgraded to “Under Honorable Conditions (General).” In 1978, a Discharge Review Board found that Garvey would not have been entitled to an upgrade under generally applicable standards. Garvey died in 2010.His widow applied for dependency and indemnity compensation and death pension benefits. The Veterans Court and Federal Circuit affirmed the denial of her claim; 38 C.F.R. 3.12(d)(4) is not contrary to 38 U.S.C. 5303, which is not the exclusive test for benefits eligibility. A former service member is ineligible for benefits unless he is a “veteran.” Under 38 U.S.C. 101(2), to be a veteran, a former service member must have been discharged “under conditions other than dishonorable.”The VA was authorized to define a discharge for willful and persistent misconduct as a discharge under “dishonorable conditions.” View "Garvey v. Wilkie" on Justia Law

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Burkhart is the widow of U.S. Army veteran David, who served honorably in the Korean War. He had no service-connected disabilities. In the late 1990s, he was admitted to a VA nursing facility, where he died. Burkhart filed a claim for dependency and indemnity compensation (DIC) benefits under 38 U.S.C. 1151, which provides for compensation related to the death or injury of a veteran in certain circumstances while the veteran was under VA care “as if such additional disability or death were service-connected.” Having determined that David’s death was due to an event “not reasonably foreseeable,” the VA granted DIC benefits.In 2007, Burkhart obtained a certificate of eligibility (COE) for home loan guaranty benefits available under chapter 37 but never finalized a loan. In 2013, she requested a new COE for a guaranty. The VA determined that she was ineligible. The Board of Veterans’ Appeals found that home loan guaranty benefits are available only to “the surviving spouse of any veteran . . . who died from a service-connected disability,” 38 U.S.C. 3701(b)(2). The Veterans Court affirmed, requesting requests for equitable relief. The Veterans Court reasoned that an “incontestability provision” (section 3721) gives only lenders receive the privilege of estoppel with respect to COEs. The Federal Circuit affirmed. Burkhart is not eligible for home loan guaranty benefits under any of the cited statutes and the Veterans Court lacked the power to grant her equitable relief. View "Burkhart v. Wilkie" on Justia Law

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Lang served in the Marine Corps in 1966-1968 and was badly injured in Vietnam. Lang sought psychiatric treatment at the Pittsburgh VA Medical Center. In 1995, an examiner explained: [T]he Veteran from a physical standpoint is permanently and totally disabled from any type of gainful employment [and] is also socially handicapped to a severe degree . . . . He has a very severe form of PTSD that he has treated himself with alcohol abuse... not to mention the horrendous physical deformities. Lang was granted a 10% disability rating in 1996. Lang did not appeal but continued to receive treatment.In 2014, Lang moved to revise the 1996 rating, citing clear and unmistakable error (CUE). The Veterans Court affirmed the denial of Lang’s request for an adjustment, stating that Lang failed to prove that the “VA had sufficient knowledge of the VA treatment records . . . to trigger the Board’s duty to make the requested findings.” The Federal Circuit vacated. Lang’s post-decision medical records were constructively received by the VA adjudicator before the expiration of the one-year appeal period. A claim remains open until the VA determines whether post-decision evidence received within the one-year appeal period is “new and material.” The Board made no such determination as to Lang’s post-decision medical records, so the 1996 rating decision was not final and a CUE analysis was not required. View "Lang v. Wilkie" on Justia Law

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Kisor served in the Marine Corps, 1962-1966. In 1982, he sought disability compensation benefits for PTSD. A 1983 psychiatric examination noted Kisor's combat experiences in Vietnam. The examiner expressed his “distinct impression” that Kisor suffered from “a personality disorder as opposed to PTSD,” which cannot be a basis for service connection. Kisor did not pursue an appeal. In 2006, Kisor submitted a request to reopen and presented a 2007 report of a psychiatric evaluation diagnosing PTSD. He was granted a 50% rating. The Veterans Court and Federal Circuit affirmed that Kisor was not entitled to an effective date earlier than 2006.On remand from the Supreme Court, the Federal Circuit again affirmed. In the setting of 38 C.F.R. 3.156(c)(1), for purposes of reconsideration of the 1983 denial, the term “relevant” is not “genuinely ambiguous” and “Auer deference” is not appropriate. In the context of section 3.156(c)(1), “relevant” has only “one reasonable meaning.” As the Board determined, under the regulation, to be “relevant,” a record must speak to a matter in dispute. Service department records received in 2006 and 2007 were not “relevant” under the regulation because they did not pertain to the basis of the 1983 denial of Kisor’s claim, which was the lack of a diagnosis of PTSD. View "Kisor v. Wilkie" on Justia Law

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The parents were domiciled in Nassau, the Bahamas. Mother traveled to the U.S. five times while pregnant. A.R. was born in November 2015, in Nassau, and lived in Nassau for six months. He received his first two sets of vaccinations in Nassau, with no apparent adverse consequences. During his six-month well-child visit in Nassau, A.R. received his third set of eight vaccinations that are listed in the Vaccine Injury Table and were manufactured by companies with a U.S. presence. Days later, A.R. became ill. A.R. was flown to Nicklaus Children’s Hospital in Miami, Florida, where he was diagnosed with hemophagocytic lymphohistiocytosis, an autoimmune disease of the blood. He remained in Florida as an outpatient, returning to Nassau for Christmas, and months later, was diagnosed with acute myeloid leukemia. A.R. underwent treatment, at Cincinnati Children’s Hospital and at Johns Hopkins before he died.The Federal Circuit affirmed the dismissal of the parents’ Vaccine Act claim (42 U.S.C. 300aa). The parents asserted that the condition that caused A.R.’s death was a complication resulting from the treatment he had received for his vaccine-induced condition. The Act grants standing to a person who “received [a covered] vaccine outside the” U.S. if “such person returned" to the U.S. not later than 6 months after the vaccination. A.R., while living outside of his mother’s body, was never present in the U.S. before his vaccinations such that his entrance for medical treatment could be a “return.” View "Dupuch-Carron v. Secretary of the Department of Health & Human Services" on Justia Law

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While serving in the Navy 1968-1970, Simmons experienced feelings of depression and homesickness. A VA physician diagnosed Simmons with situational depression but no permanent disability. Another VA physician diagnosed him with immature personality disorder and recommended he be discharged. In 1972, the VA awarded Simmons a non-service-connected pension on his polyarthritis claim. In 1974, Simmons sought additional compensation, asserting that his arthritis was service-connected and that he also had a nervous condition that justified compensation. The VA denied the claim. In 2005, after receiving a total disability rating for an unrelated asbestosis-based claim, Simmons claimed that there was clear and unmistakable error (CUE) in the 1974 decision, with respect to the denial of service connection, citing the presumptions of soundness and service connection in 38 U.S.C. 105(a) and 1111.The Board found that Simmons’s current psychiatric disorder was due to his non-service-connected arthritis and that the presumptions did not apply. The Veterans Court affirmed, finding that although the Board erred in analyzing the presumptions, that error was harmless because Simmons’s current disability was not causally related to his in-service condition. The Federal Circuit affirmed, rejecting an argument that a failure to apply an evidentiary presumption is per se prejudicial. A per se rule of prejudice for failure to apply the presumptions would undo any proper VA finding that the claimant had failed to establish a causal nexus. View "Simmons v. Wilkie" on Justia Law

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While serving in the Navy, 1972-1073, Merritt sustained a concussion in an automobile accident. In 2006, a VA psychologist prepared a note. stating that Merritt had “[s]ymptoms of bipolar disorder[, which] first began ... on active duty,” and that Merritt’s “work performance began to suffer” after the in-service accident. In 2010, Merritt sought disability benefits for bipolar disorder, anxiety, and personality disorders. The Board determined that Merritt’s psychiatric disorders were not service-connected, relying solely on an independent medical expert opinion. On remand, the Board again denied Merritt’s claim, stating that the VA psychology note was entitled to little probative weight, apparently because there was no evidence that the VA psychologist had access to Merritt’s records, and there was a discrepancy between that note and Merritt’s treatment records as to the length of time that Merritt was unconscious following the automobile accident. The Veterans Court affirmed, finding the Board’s error in not following the remand order harmless because the VA note “described no symptoms that . . . supported . . . a retrospective diagnosis” of bipolar disorder, and “there [was] no possibility that the Board could have awarded service connection based on [the note].”Merritt died; Mrs. Merritt was allowed to substitute herself as the surviving spouse. The Federal Circuit subsequently dismissed her appeal as moot. Mrs. Merritt did not preserve her claim by filing a formal claim with the VA within one year of Merritt’s death as required. View "Merritt v. Wilkie" on Justia Law