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

Grounds served in the Army from 1969-1972. He was charged with being AWOL during three periods in 1972 (less than 180 days). To avoid a court-martial. Grounds requested to be discharged “for the good of the service,” citing marital and financial problems and stating, if he were to remain in the Army, he would continue going AWOL. Grounds was discharged “[f]or the good of the [s]ervice” and “[u]nder conditions other than [h]onorable.”In 2013, Grounds applied for veterans' benefits. The VA found his multiple periods of AWOL constituted “willful and persistent misconduct,” rendering him ineligible for benefits under 38 C.F.R. 3.12(d)(4). The Board of Veterans Appeals agreed, concluding his discharge was considered “dishonorable” for VA benefits purposes. The Federal Circuit affirmed the Veterans Court's rejection of an argument that 38 U.S.C. 5303(a) controls and cannot be superseded by 38 C.F.R. 3.12(d)(4). Section 5303(a) provides that a veteran is not eligible for benefits if he was discharged by reason of court-martial on the basis of being AWOL for a continuous period of at least 180 days. Under Federal Circuit precedent, section 5303(a) is not the exclusive test for benefits eligibility; 38 C.F.R. 3.12(d)(4) is consistent with and authorized by statute. While Grounds’ misconduct did not constitute a statutory bar to VA benefits under section 5303. the Board did not clearly err in finding that his multiple periods of AWOL constituted a regulatory bar to benefits. View "Grounds v. McDonough" on Justia Law

The VA’s Schedule for Rating Disabilities includes diagnostic codes (DCs), each with a corresponding disability rating, 38 U.S.C. 1155. A particular veteran’s disability may not clearly fall under a delineated DC. VA regulations provide: When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. The VA considers the functions affected by ailments, the anatomical localization of the ailments, and the symptomatology of the ailments.Webb served in the Army, from 1968-1970, receiving an honorable discharge. Webb later developed service-connected prostate cancer, the treatment for which caused him to develop erectile dysfunction (ED). In 2015, Webb was assigned a non-compensable (zero percent) rating for his ED. The Schedule did not then include a diagnostic code for ED. The VA rated Webb’s disability by analogy to DC 7522, which provides a 20 percent disability rating for “[p]enis, deformity, with loss of erectile power.” The Board explained that DC 7522 required Webb to show “deformity of the penis with loss of erectile power.” Without such a deformity, he was not entitled to a compensable disability rating. The Veterans Court affirmed. The Federal Circuit vacated. The listed disease or injury to which a veteran’s unlisted condition is being rated by analogy must be only “closely related,” not identical. View "Webb v. McDonough" on Justia Law

Hampton served in the Navy from 1985-1989. In 1997, she filed a claim for VA disability compensation for migraines. In 1998, the regional office (RO) increased Hampton’s rating to 30 percent, effective from 1997. In 1999, Hampton applied for a total disability rating based on individual unemployability (TDIU) effective from 1997 due to “migraine[s], bladder, [and] reflux.” The RO denied TDIU. Hampton never filed a notice of disagreement but filed a new claim for increased compensation based on migraines. This claim was denied in 1999; Hampton filed a notice of disagreement. In 2000, the Board affirmed the RO. In 2003, Hampton filed a new claim for increased compensation and a second TDIU application. The Board ultimately granted Hampton TDIU, effective from 2003. Hampton argued that her 1999 TDIU claim was still pending because she submitted additional evidence within the one-year appeal window but never received a determination. The Board denied entitlement to an earlier effective date, finding that the 1999 TDIU claim was not still pending when Hampton filed her 2003 claims.The Veterans Court and Federal Circuit affirmed; 38 CFR 3.156(b) does not require the VA to explicitly state whether submitted evidence is new and material to a claim, where that claim is implicitly denied after consideration of the evidence. The Board’s 2020 decision, by finding the 2000 decision an implicit denial of TDIU, was not making a new and material evidence determination in the first instance. The RO did so in 1999. View "Hampton v. McDonough" on Justia Law

Kelly served as a Navy diver from 2008-2013 and received numerous accolades but suffered multiple injuries. Following a 2012 dive mission, Kelly received hyperbaric chamber treatment. Kelly then experienced emotional and behavioral changes. He was diagnosed with an adjustment disorder, depressed mood, and anxiety. In 2013, Kelly was cited for criminal incidents. The Navy removed Kelly’s diver classification. Kelly was discharged “Under Honorable Conditions (general).” The narrative recited “misconduct” for the commission of a “serious offense.” Based on the “liberal consideration” policy, the Discharge Review Board removed the reason for separation.Kelly subsequently requested that the Record Correction Board correct his military records to reflect disability retirement under 10 U.S.C. 1201. A Senior Medical Officer advisor opined that Kelly was fit to perform his duties at the time of his separation and that his misconduct did not result from “a legal[ly] exculpating level of psychological impairment incident to a potentially compensable psychiatric condition.” The Board denied Kelly’s request.The Federal Circuit vacated. The Board failed to evaluate all relevant criteria under Secretary of the Navy Instruction 1850.4E 3304 (common military tasks, physical readiness/fitness tests, deployability, special qualifications); failure to evaluate the effect the upgrade change in Kelly’s record had on his eligibility for retirement disability pay was arbitrary. The Board must determine whether Kelly’s medical condition affected his deployability or special qualifications. Section 1201 military disability retirement benefits are nondiscretionary and statutorily mandated; they confer a property interest protected by the Due Process Clause. View "Kelly v. United States" on Justia Law

Nordby served as an administrative law judge with the Social Security Administration. He was also a First Lieutenant in the Judge Advocate General’s Corps of the Army Reserve. From January-May 2017, Nordby was activated under 10 U.S.C. 12301(d) to perform military service in the Army Reserve; he conducted basic training for new Judge Advocates in Georgia and Virginia. Federal employees who are absent from civilian positions due to military responsibilities and who meet the requirements listed in 5 U.S.C. 5538(a) are entitled to differential pay to account for the difference between their military and civilian compensation.The agency denied Nordby’s request for differential pay, reasoning that those called to voluntary active duty under section 12301(d) are not entitled to differential pay. The Merit Systems Protection Board rejected Nordby's argument that he was called to duty under section 101(a)(13)(B)— “any [] provision of law during a war or during a national emergency declared by the President or Congress” and that his activation was “during a national emergency” because the U.S. has been in a continuous state of national emergency since September 11, 2001. The Federal Circuit affirmed. Nordby failed to allege any connection between the training and the ongoing national emergency that resulted from the September 11 attack. View "Nordby v. Social Security Administration" on Justia Law

Frazier served in the Navy from 1988-1993. In 2008, Frazier fractured the fourth and fifth fingers of his right hand after being startled by a nightmare--according to Frazier, a frequent occurrence due to PTSD, a disability for which Frazier had been awarded service connection. The VA's examining physician noted that Frazier experienced pain in his right hand and that the injury was secondary to his PTSD but that the pain “does not result in/cause functional loss.” The Board of Veterans Appeals granted Frazier service connection for the injury; the regional office assigned a noncompensable rating for that injury,The Federal Circuit affirmed, rejecting Frazier’s argument that he was entitled to a compensable rating of 10 percent under 38 C.F.R. 4.59. That regulation provides: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Frazier cited Diagnostic Codes 5219 and 5223, which provide 20 percent and 10 percent ratings, respectively, for unfavorable and favorable ankylosis of the ring and little fingers. The Board properly focused on Diagnostic Code 5230, which provides for a zero percent rating for limitations of motion in the little or ring fingers. Section 4.59 does not “create a freestanding painful motion disability that is always entitled to a 10% disability rating” and Frazier did not have ankylosis. View "Frazier v. McDonough" on Justia Law

Bean served in the U.S. Army from 1966-1969. In 1997, he sought disability compensation. Bean was diagnosed with major depression and generalized anxiety disorder, but not PTSD. The VA denied him entitlement to service connection for PTSD. In 2006, Bean sought service connection for major depression, generalized anxiety disorder, and PTSD. In response, the VA notified Bean that it was “working on [his] application for service-connected compensation” for major depression and generalized anxiety disorder and his “claim to reopen for” his PTSD-related claim. In 2007, he was diagnosed with PTSD and major depressive disorder. The VA found service connection for PTSD, deemed the PTSD 30% disabling, and assigned an August 2006 effective date. Bean filed a Notice of Disagreement, concerning the disability rating and effective date.In 2012, the Board of Veterans Affairs addressed Bean’s rating. Bean sought reconsideration. In 2019, the Board dismissed Bean’s appeal of the 2013 denial of his claim without addressing the merits.The Federal Circuit reversed the Veterans Court’s dismissal of the appeal for lack of jurisdiction. When a claim is adequately presented to, but is not addressed by the Board, the Board’s disposition of the appeal constitutes the Board's decision on that claim that may be appealed to the Veterans Court. The Veterans Court's jurisdiction is not limited to the Board's affirmative determinations and covers the disposition of an appeal that is challenged as improperly failing to address contentions clearly before the Board. View "Bean v. McDonough" on Justia Law

Crawford served in the U.S. Army and Florida National Guard for two decades. He was discharged in 2011 due to his service-connected PTSD. Crawford’s PTSD began after his second tour of duty in Iraq. The Florida State Surgeons Medical Discharge Review Board (SSMDRB) found Crawford did not meet medical retention standards and that his PTSD was incurred in the line of duty. It recommended a fitness determination by a Physical Evaluation Board (PEB), a prerequisite for medical retirement, 10 U.S.C. 1201. Crawford was not referred to a PEB but was discharged as if his PTSD was not service-related, without medical retirement.Crawford sought correction of his records and retroactive benefits before the Army Board for the Correction of Military Records (ABCMR). Notwithstanding the SSMDRB’s findings and the fact that Crawford was discharged for failure to meet medical retention standards, a doctor opined Crawford met retention standards at the time of his discharge. Crawford filed suit. On the government's motion, the court remanded for a fitness determination and development of the record. On remand, the ABCMR found Crawford was entitled to medical retirement based solely on the evidence available at the time of his separation and granted him complete relief, including the correction of his records and retroactive medical retirement benefits.The Federal Circuit reversed the denial of Crawford’s subsequent motion for attorneys’ fees and expenses under the Equal Access to Justice Act. Crawford was a prevailing party. View "Crawford v. United States" on Justia Law

Pitts, the surviving spouse of an Army veteran, filed for dependency and indemnity compensation from the VA in 2001. The Board of Veterans’ Appeals affirmed. In 2012, Pitts employed attorney Viterna. Their fee agreement was filed with the VA and provided that Viterna was owed 20% of any past-due benefits Pitts recovered, less certain expenses but applied only to claims for which a notice of disagreement was filed after June 20th, 2007; the NOD covering the 2001 claim was filed in 2005. Viterna asserts that this was an “unintentional drafting error.”In 2014, Viterna secured past-due benefits for Pitts, which related back to the 2005 NOD. The agency refused to pay Viterna 20% of those benefits. The Board affirmed. Before the Veterans Court, Viterna argued that Congress only gave the VA the power to assess whether a fee agreement was valid and if its terms were excessive or unreasonable—not whether the agreement covered the claim at issue.The Veterans Court and Federal Circuit disagreed. There was no qualifying agreement between Viterna and Pitts providing for payment of a fee for the claim in question. The court noted that between 1988-2006, attorneys could only charge fees for representing claimants after the Board’s “final decision.” In 2006, Congress amended 38 U.S.C. 5904, effective June 20th, 2007, to allow attorneys to charge for VA representation as soon as a claimant had filed a NOD seeking review of a regional office decision. View "Viterna v. McDonough" on Justia Law

Pickett served in the Army from 1969-1971, including service in Vietnam. In 2004, sought service-connected compensation for an anxiety disorder, which he attributed to exposure to Agent Orange or other herbicides. The VA eventually granted Pickett service-connected compensation for post-traumatic stress disorder (PTSD) and coronary artery disease (CAD) effective 2004. Pickett appealed, seeking a total disability rating based on individual unemployability (TDIU), starting in 2007, the date he last worked. A 2013 VA decision denied the application. The VA notified Pickett that he had a year to appeal. He did not appeal. A 2014 decision listed the 2013 decision and proposed decreasing Pickett’s PTSD rating. Pickett only challenged the proposed reduction.In 2017, Pickett filed a supplemental claim and new TDIU application, again citing service-connected CAD and PTSD. The VA awarded Pickett TDIU due solely to PTSD and increased his ratings, effective January 2017. Pickett filed a notice of disagreement, citing 38 C.F.R. 3.156(b), and arguing he was entitled to “an extra-schedular total rating,” which could include TDIU, effective from 2007.The Board of Veterans’ Appeals, Veterans’ Court, and Federal Circuit denied Pickett an earlier effective date. Pickett’s failure to perfect an appeal following the 2013 or 2014 decisions meant that his 2004 claim for the maximum CAD evaluation—including entitlement to TDIU—became final by 2017. The finalized claim could not provide a basis for an earlier entitlement to TDIU. View "Pickett v. McDonough" on Justia Law