Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

Articles Posted in Military Law
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Gudinas served in the Army, 1966-1968. In 2005, the VA determined that Gudinas suffered from service-connected PTSD and awarded him a 50 percent disability rating plus a 10 percent disability rating for service-connected tinnitus. In 2014, Gudinas filed an unsuccessful claim for service-connected sleep apnea. Gudinas timely filed a notice of disagreement. Gudinas sent a letter indicating that the claim was secondary to his service-connected PTSD, requested increased compensation for total disability based on individual unemployability (TDIU), and sought to increase his PTSD disability rating. The VA denied the TDIU claim but increased his PTSD disability rating to 100 percent, effective October 2015. Gudinas argued that 38 C.F.R. 3.156(b) entitled him to an effective date of May 2014, because his October 2015 submission constituted new and material evidence relating to his May 2014 claim.The Board of Veterans’ Appeals rejected that argument, noting that Gudinas’s May 2014 claim did “not mention a psychiatric disability” (PTSD), and that the claim contained no reference to an increase in the PTSD rating. The Veterans Court and Federal Circuit affirmed. Even if Gudinas’s claim for sleep apnea were considered secondary to his PTSD claim, the two claims would not need to be treated as the same claim for purposes of determining their effective dates; the Board is not required to explicitly determine whether a submission constitutes “new and material evidence” where, as here, the conditions underlying the two claims have no apparent connection. View "Gudinas v. McDonough" on Justia Law

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Rhone served in the military 1950-1953 and 1959-1988. In 1986, Rhone and JoAnne, divorced; the Florida Divorce Decree stated that JoAnne would receive 40% of Rhone’s military retirement benefits. In 1988, Rhone left military service due to disability. To receive disability compensation, Rhone waived part of his military retirement pay (38 U.S.C. 5305). The state court denied Rhone’s motion to modify the Divorce Decree, stating that the payment of retirement benefits constituted alimony, not a property division. The state court issued a Continuing Writ of Garnishment directing the VA to withhold that payment from Rhone’s retirement pay. The VA determined that the order obliged the VA to make payments from Rhone’s disability compensation. After Rhone attempted to avoid garnishment by renouncing benefits, in 2002 the VA determined that Rhone's compensation benefits were not subject to garnishment and had been erroneously withheld. Rhone was reimbursed for $27,664. In 2005, the VA determined that it must comply with the alimony award and resumed garnishing Rhone’s disability compensation.The Board of Veterans’ Appeals issued a 2020 decision, finding the 1991 order “valid on its face” and providing for “permanent periodic alimony” so that the VA legally garnished Rhone’s disability compensation under 42 U.S.C. 659(a); (h)(1)(A)(ii)(V). The Veterans Court and Federal Circuit affirmed, finding no due process violation. The statutes authorize the VA to withhold a portion of a veteran’s VA disability payment for alimony or child support pursuant to legal process when a veteran has waived a portion of military retirement pay to receive VA benefits. The VA lacks jurisdiction to decide questions associated with a state garnishment order. View "Rhone v. McDonough" on Justia Law

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The Department of Veterans Affairs rating schedule standardizes the evaluation of how severely diseases and injuries resulting from military service impair veterans’ earning capacity, 38 C.F.R. 4.1. The rating schedule is divided into diagnostic codes that provide disability ratings for various symptoms or conditions. The Federal Circuit, pursuant to 38 U.S.C. 502, reviewed the VA’s interpretation of two diagnostic codes: DCs 5055 and 5257: the “Knee Replacement Manual Provision” and the “Knee Joint Stability Manual Provision.” The court concluded that DC 5055 is ambiguous as to whether it includes partial knee replacements and, that under controlling Supreme Court precedent, the Secretary’s interpretation is not entitled to deference. A “Guidance” promulgated to clarify that the Provision applied only to total joint replacement did not go through the notice-and-comment procedure followed when the original Diagnostic Code was enacted. The court, therefore, applied the “pro-veteran” canon of construction. The court dismissed the challenge to the Knee Joint Stability Manual Provision as moot because the Secretary rescinded the Manual provision. View "Nova v. Secretary of Veterans Affairs" on Justia Law

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Air Force veteran Skaar was exposed to ionizing radiation while participating in a cleanup operation in Palomares, Spain following a 1966 midair collision involving a plane carrying nuclear weapons. In 1998, he was diagnosed with leukopenia. His doctor opined that exposure to ionizing radiation “appear[s] to be the positive agent” that historically causes leukopenia. Skaar filed an unsuccessful claim with the VA for service-connected benefits. Before the Veterans Court, he challenged the radiation dose estimates provided by the Air Force. The Veterans Court certified a class of similarly situated veterans who had participated in the Palomares cleanup operation, including veterans who had not received a Board decision but excluding veterans whose claims had been denied but not timely appealed.The Federal Circuit vacated. The Veterans Court lacked authority to certify a class that includes veterans who had not received a Board decision, a statutory prerequisite for the court’s jurisdiction, 38 U.S.C. 7252(a). Jurisdiction over Skaar’s individual claim did not create further jurisdiction over similarly situated veterans whose individual claims were beyond the court’s jurisdiction. The court rejected Skaar’s argument that the Veterans Court should have equitably tolled the appeal period for veterans whose claims had been denied but not timely appealed and should have included such veterans as members of the certified class. None of the claimants alleged the requisite due diligence in pursuing their rights. View "Skaar v. McDonough" on Justia Law

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Carter served on active duty in the U.S. Marine Corps from 1979-1980; he was identified as having damaged a government vehicle. According to the military police (MP), Carter became combative during his apprehension and struck an MP. Another MP then struck Carter in the head with his nightstick, resulting in an in-service head injury. Carter has residuals of a traumatic brain injury due to the incident. In 1981, Carter filed a VA claim seeking benefits for his head injury. The regional office denied his claim, Under 38 C.F.R. 3.301(a), service connection may be granted only when a disability was incurred or aggravated in the line of duty “and not the result of the veteran’s own willful misconduct.” The office concluded Carter’s own action “was the proximate cause of his injuries.”The Board of Veterans’ Appeals reopened the matter in 2014. After the regional office completed additional fact-finding on remand, the Board concluded that Carter’s combative behavior during his arrest “represent[ed] deliberate or intentional wrongdoing on the part of [Carter] and reckless disregard of its probable consequences,” and that the MP’s use of force in response “reasonably f[ell] within the realm of ‘probable consequences.'” The Veterans Court and Federal Circuit affirmed. The Board applied the correct legal standard in determining that Carter’s injury was the result of his willful misconduct. View "Carter v. McDonough" on Justia Law

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In 2006, LaBonte went absent without leave (AWOL) from the Army for six months. He voluntarily returned to his base, pleaded guilty to desertion in a court-martial proceeding, and received a Bad Conduct Discharge. In 2012, LaBonte was diagnosed with post-traumatic stress disorder (PTSD), stemming from his combat service in Iraq. In 2014, he was found eligible for VA benefits for service-connected PTSD, traumatic brain injury, depression, headaches, back pain, tinnitus, a painful scar, and ulcers. In 2016, LaBonte received a 100% service-connected disability rating.In 2015, LaBonte applied to the Army Board for Correction of Military Records (ABCMR), seeking retroactive medical retirement. He alleged that, while in the Army, he had permanent disabilities incurred during service that rendered him unfit for service before his absence without leave. In 2020, on remand, ABCMR again denied LaBonte’s claim. The Claims Court dismissed an appeal, finding that, in order for ABCMR to grant LaBonte disability retirement, it would have to correct LaBonte’s DD-214 Form to show that he was separated due to physical disability rather than due to a court-martial conviction and that 10 U.S.C. 1552(f), prohibited such a correction. The Federal Circuit reversed. ABCMR was not required to change LaBonte’s DD-214 in order to grant him disability retirement. The 214 is a record of events, not intended to have any legal effect on the termination of a soldier’s service. View "LaBonte v. United States" on Justia Law

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Morris served in the Army, 1965-1968. In 1970, he unsuccessfully sought disability benefits (38 U.S.C. 1110), alleging a disability based on a nervous condition connected to his service. The VA instead granted his claim for a pension based on a non-service-connected condition. In 2005, Morris sought compensation based on service-connected PTSD; he was eventually assigned a 100% disability rating.Morris has for many years been seeking an earlier effective date for service-connected disability compensation. The VA regional office and the Board of Veterans’ Appeals found no clear and unmistakable error. The Court of Appeals for Veterans Claims rejected a claim that a September 1970 notice from the VA—giving notice of the August 1970 rating decision—was constitutionally inadequate under the Due Process Clause; Morris had not presented this argument to the Board but contended that the Veterans Court was obligated to consider this constitutional question in the first instance under 38 U.S.C. 7261(a)(1). The Veterans Court exercised its discretion, under issue-exhaustion precedents, to decline to entertain the argument presented for the first time on appeal. The Federal Circuit affirmed the dismissal of the appeal. The Veterans Court had the discretion to apply an issue-exhaustion analysis and correctly applied that analysis. View "Morris v. McDonough" on Justia Law

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Long served in the Air Force, 1969-1976 and spent most of that time as an air traffic control radar repairman, working without ear protection near active runways. In 2009, Long filed a disability compensation claim for hearing loss and tinnitus. The Department of Veterans Affairs found his hearing loss and tinnitus were service-connected, assigning a 0% disability rating for his hearing loss and a 10% disability rating for his tinnitus according to the schedular rating criteria, 38 C.F.R. 4.85. The Board of Veterans’ Appeals denied his request for an extra-schedular rating. Long had argued that the schedular rating criteria did not capture the functional effects of his hearing loss, including ear pain caused by his hearing aids. The Veterans Court affirmed, finding no direct causal link between Long’s ear pain and his service-connected hearing loss.The Federal Circuit vacated. A secondary condition is considered service-connected if it is “proximately due to or the result of” a service-connected disability. Direct causation is not required. The court remanded, stating that the Veterans Court engaged in impermissible fact-finding. View "Long v. McDonough" on Justia Law

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Bowling and Appling were discharged from military service under conditions other than honorable. Each eventually sought veterans’ benefits. Their discharges would statutorily bar the benefits at issue unless they came within an exception that applies where an offense led to the discharge and the service member was “insane” at the time of the offense, 38 U.S.C. 5303(b). The Board of Veterans’ Appeals found the regulatory definition of “insane” not to be met either in either case. The Veterans Court rejected their argument of unconstitutional vagueness of the insanity-defining regulation on its face, though not as applied to them. The court declined to take judicial notice of material outside the record, such as a publication by advocates for veterans addressing VA actions across a range of cases over many years.The Federal Circuit affirmed. The court upheld the Veterans Court’s refusal to take judicial notice; there was no "futility" in developing the record on the constitutional issue before the Board even if the Board could not have held the regulation unconstitutional. The Board could have performed at least record-development functions and associated fact-finding functions. The facial-vagueness challenge fails on the merits. The court noted that the regulation does not call for a categorical approach to interpretation. View "Bowling v. McDonough" on Justia Law

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The U.S. military sprayed over 17 million gallons of herbicides over Vietnam during “Operation Ranch Hand,” primarily Agent Orange. Concerns about the health effects of veterans’ exposure to Agent Orange led to the Agent Orange Act of 1991, 105 Stat. 11. For veterans who served in the Republic of Vietnam during a specified period, the Act presumes exposure to an herbicide agent containing 2,4-D or dioxin, 38 U.S.C. 1116(f), and presumes a service connection for certain diseases associated with herbicide-agent exposure, such as non-Hodgkin’s lymphoma and soft-tissue sarcoma. The VA subsequently issued regulations extending similar presumptions to other groups of veterans. In 2017, the House of Representatives Armed Services Committee expressed concern that additional exposures to Agent Orange may have occurred in Guam.In 2018, MVA petitioned the VA to issue rules presuming herbicide-agent exposure for veterans who served on Guam or Johnston Island during specified periods. The VA denied MVA’s petition. The Federal Circuit rejected MVA’s petitions under 38 U.S.C. 502 to set aside the VA’s denial. MVA has not shown that the VA’s determination that the evidence did not warrant presuming exposure for every single veteran who served in named areas during the relevant period was contrary to law nor that the denial “lacked a rational basis.” View "Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs" on Justia Law