Articles Posted in Military Law

by
Petitioners, employed by the Office of Air and Marine (OAM), within the Department of Homeland Security, alleged that the agency’s actions and policies violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335. They were members of the Air Force and Navy Reserves. They subsequently resigned, claiming that they were “forced to quit.” An administrative judge (AJ) rejected Petitioners’ contention that the OAM violated USERRA by failing to grant them waivers from participating in training courses that conflicted with their military service dates, creating a hostile work environment, forcing them to surrender their badges and weapons during military leaves of 30 or more days, delaying within-grade pay increases, and requiring them to use annual, sick, or other leave in lieu of military leave. The AJ found “a legitimate basis for the [Agency’s] security policy,” and an “absence of any evidence that its [weapons] policy was adopted with discriminatory intent.” Allegedly hostile incidents were either “‘unavoidable’ workplace friction” or did not rise to the level of “humiliating,” “physically threatening,” or “so frequent and pervasive” to render their work environment hostile. They later filed a second complaint, alleging constructive discharge. The AJ, the Merit Systems Protection Board, and the Federal Circuit agreed that the constructive discharge claims were barred by collateral estoppel as “inextricably linked” to their previous hostile work environment claims. The standard for establishing constructive discharge is higher than that for hostile work environment, View "Bryant v. Merit Systems Protection Board" on Justia Law

by
Crediford served with the Coast Guard in 1983-1985 and in 1990-1991. In 1985, he visited the VFW Club after work and drank alcohol, then was in a single-vehicle accident. A breath test registered a blood alcohol level of 0.12 percent, more than three hours later. The police charged him with DUI. Crediford's commanding officer’s report stated that fatigue and alcohol were responsible for the accident and that Crediford’s “injuries were not a result of his own misconduct and were incurred in the line of duty.” The conclusion was approved in an “ACTION OF THE CONVENING AUTHORITY.” In December 1985, the Commander of the Thirteenth Coast Guard District issued a Memorandum, that “approved a finding that injuries … were ‘not incurred in the line of duty and were due to his own misconduct.’” In 2004, Crediford sought compensation for chronic pain due to spinal and soft tissue injury resulting from the accident. The VA Regional Office denied compensation, characterizing the injuries as the result of willful misconduct, not occurring in the line of duty. Crediford argued that the Memorandum was issued “post-discharge, without notice that an investigation was ongoing. The Federal Circuit vacated. The Board erred in making its own findings when there were service department findings before it. VA regulations assign “binding” determination of “willful misconduct” and “line of duty” to the Service Department. The Coast Guard’s determinations, made in 1985, must be addressed. View "Crediford v. Shulkin" on Justia Law

by
Ebanks sought veterans benefits for service-connected posttraumatic stress disorder, hearing loss, and arthritis. His claim for an increased disability rating was denied by the VA Regional Office (RO) in October 2014; in December he sought Board of Veterans Appeals review, with a video-conference hearing (38 U.S.C. 7107). Two years later, the Board had not scheduled a hearing. Ebanks sought a writ of mandamus. The Veterans Court denied relief. While his appeal was pending, the Board held his hearing in October 2017. The Federal Circuit vacated, finding the matter moot so that it lacked jurisdiction. The delay is typical and any Board hearings on remand are subject to expedited treatment under 38 U.S.C. 7112. Congress has recently overhauled the review process for RO decisions, so that veterans may now choose one of three tracks for further review of an RO decision, Given these many contingencies, Ebanks has not shown a sufficiently reasonable expectation that he will again be subjected to the same delays. Even if this case were not moot, the court questioned “the appropriateness of granting individual relief to veterans who claim unreasonable delays in VA’s first-come-first-served queue.” The “issue seems best addressed in the class-action context,.” View "Ebanks v. Shulkin" on Justia Law

by
To receive disability compensation based on service, a veteran must demonstrate that the disability was incurred or aggravated in the line of duty, 38 U.S.C. 101(16). Congress has enacted presumptive service connection laws to protect certain veterans who faced exposure to chemical toxins but would find it difficult to prove a “nexus” between their exposure and their disease. Under the Agent Orange Act, 38 U.S.C. 1116, any veteran who served in Vietnam during the Vietnam era and who suffers from any designated disease “shall be presumed to have been exposed during such service” to herbicides. The VA determines which diseases qualify for presumptive service connection and defines service in Vietnam. Absent on-land service, the VA concluded that the statute did not authorize presumptive service connection for veterans serving in the open waters surrounding Vietnam. The Federal Circuit upheld that position in 2007. In 2016, the VA amended its M21-1 procedures manual to also exclude veterans who served in bays, harbors, and ports of Vietnam. The VA did not implement this additional restriction by way of notice and comment regulation as it did its open waters restriction and has not published its view on this issue in the Federal Register. The Federal Circuit rejected a challenge for lack of jurisdiction. The VA’s revisions are not agency actions reviewable under 38 U.S.C. 502. The M21-1 Manual provisions are only binding on Veterans Benefits Administration employees. View "Gray v. Secretary of Veterans Affairs" on Justia Law

by
TRICARE provides current and former members of the military and their dependents' medical and dental care. Hospitals that provide TRICARE services are reimbursed under Department of Defense (DoD) guidelines. TRICARE previously did not require, DoD to use Medicare reimbursement rules. A 2001 amendment, 10 U.S.C. 1079(j)(2), required TRICARE to use those rules to the extent practicable. DoD regulations noted the complexities of the transition process and the lack of comparable cost report data and stated “it is not practicable” to “adopt Medicare OPPS for hospital outpatient services at this time.” A study, conducted after hospitals complained, determined that DoD underpaid for outpatient radiology but correctly reimbursed other outpatient services. TRICARE created a process for review of radiology payments. Each plaintiff-hospital requested a discretionary payment, which required them to release “all claims . . . known or unknown” related to TRICARE payments. Several refused to sign the release and did not receive any payments. Although it discovered calculation errors with respect to hospitals represented by counsel, TRICARE did not recalculate payments for any hospitals that did not contest their discretionary payment offer. The Claims Court dismissed the hospitals’ suit. The Federal Circuit reversed in part, finding that they may bring a claim for breach of contract but may not bring money-mandating claims under 10 U.S.C. 1079(j)(2) and 32 C.F.R. 199.7(h)(2) because the government’s interpretation of the statute was reasonable. View "Ingham Regional Medical Center v. United States" on Justia Law

by
Goodman served in the U.S. Army, 1972-1992, with service in Southwest Asia during the Persian Gulf War. During his service and at his discharge, Goodman underwent medical examinations that returned negative for rheumatoid arthritis; he denied having pain in his joints or arthritis. In 2007, Goodman sought treatment at a VA medical center for hand stiffness and knee pain, which he said had begun during service. He sought VA benefits for rheumatoid arthritis. The Board sought an independent medical advisory opinion from the Veterans Health Administration, which was conducted by a VA medical center Director of Rheumatology in 2014 and concluded that “it is less likely than not” that Goodman’s rheumatoid arthritis can be characterized as a medically unexplained chronic multi-symptom illness (MUCMI) under 38 C.F.R. 3.317, and that it “is less likely than not that his rheumatoid arthritis is related to a specific exposure event experienced … during service. The Board concluded that Goodman was not entitled to a presumptive service connection for a MUCMI; the Federal Circuit affirmed. The VA adjudicator may consider evidence of medical expert opinions and all other facts of record to make the final determination of whether a claimant has proven, based on the claimant’s unique symptoms, the existence of a MUCMI. View "Goodman v. Shulkin" on Justia Law

by
Kisor served in the Marine Corps from 1962-1966. In 1982, he sought disability compensation benefits for PTSD with the Portland, Oregon VA Regional Office (RO), which received a letter from a Vet Center counselor, expressing concerns that Kisor had “depression, suicidal thoughts, and social withdraw[a]l.” In 1983, the RO obtained a psychiatric examination for Kisor, which noted that Kisor had served in Vietnam; that he had participated in “Operation Harvest Moon”; that he was on a search operation when his company came under attack; that he reported several contacts with snipers and occasional mortar rounds fired into his base of operation; and that he “was involved in one major ambush which resulted in 13 deaths in a large company.” 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 June 2006 for the PTSD. Kisor’s remedy for the earlier denial would have been an appeal. View "Kisor v. Shulkin" on Justia Law

by
Lt. Harris has been an officer in the Navy since 2005. He was arrested by civilian authorities in 2013 for sexual offenses involving minors and was held in confinement until his 2015 conviction and sentencing. Between his arrest and conviction, the Navy withheld Harris’s pay pending the outcome of his criminal proceedings. Based on his conviction, the Navy determined that, under the Military Pay Act, 37 U.S.C. 204, and Department of Defense regulations, Harris’s absence was unexcused and he was not entitled to any pay for his absence during confinement. The Federal Circuit affirmed the Claims Court’s dismissal of his suit, in which he sought back pay, challenged the civilian court’s jurisdiction to convict him, and claimed due process violations. Harris failed to state a claim under the Military Pay Act because he was convicted of his crimes, and was not entitled to pay during his unexcused absence. Harris failed to state a due process claim because he was not statutorily eligible to receive pay during his detention; the Fifth and Fourteenth Amendments were not implicated. The Claims Court lacked jurisdiction to review the jurisdiction of civilian authorities to prosecute and convict him as a military service member. View "Harris v. United States" on Justia Law

by
Gazelle served in the U.S. Army, 1962-1965, and incurred service-connected disabilities. He receives compensation for: degenerative disc disease and joint disease of the cervical spine rated at 20 percent; degenerative disc disease and spondylosis of the thoracolumbar spine rated at 20 percent; left upper extremity radiculopathy rated at 10 percent; left lower extremity radiculopathy rated at percent; and post-traumatic stress disorder. In 2009, the VA increased Gazelle’s disability rating for his service-connected PTSD to 100 percent. Gazelle filed a Notice of Disagreement, alleging the VA failed to award him additional special monthly compensation under 38 U.S.C. 1114(s)(1). In 2011, Gazelle was denied entitlement to special monthly compensation because he did not have additional service-connected “disabilities . . . independently ratable as [60 percent] or more disabling.” Instead of adding together Gazelle’s additional service-connected disabilities at their respective amounts, the VA calculated the independent additional rating via the combined ratings table pursuant to 38 C.F.R. 4.25 (2010), which resulted in a combined rating of 50 percent. In 2014, the Board affirmed. The Veterans Court and Federal Circuit affirmed, holding that consistent with the plain meaning of subsection 1114(s), the Board appropriately applied the combined ratings table to determine eligibility for special monthly compensation benefits. View "Gazelle v. Shulkin" on Justia Law

by
Manzanares served on active duty, 1986-1991. In 1992, she was awarded service connection for a history of stress fractures in both legs, with a non-compensable rating. In 2006, she sought an increased rating. The VA assigned a 10-percent rating for each ankle, with a February 2006 effective date. Manzanares filed a notice of disagreement and claimed: “[e]ntitlement to service connection for degenerative disc disease lumbar spine as secondary to bilateral ankle disabilities.” The VA granted secondary service connection for “degenerative arthritis and disc disease, lumbar spine” with a rating of 20 percent and an April 2007 effective date. Manzanares argued that the VA should have awarded a February 2006 effective date for the secondary service-connected condition, citing 38 C.F.R. 3.156(b), which provides that, for a pending claim, “[n]ew and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” The Board of Veterans’ Appeals, Veterans Court, and Federal Circuit rejected her argument. The effective date for service connection is the later of the date the VA receives the claim or the date that entitlement arose; Manzanares’s secondary service claim was not filed until April 2007 and was not part of the ankle claim. View "Manzanares v. Shulkin" on Justia Law