Articles Posted in Public Benefits

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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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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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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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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

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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

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Burris’s father served on active duty in Vietnam, 1969-1971, and was granted a permanent and total disability rating for schizophrenia effective 2000. Because of his father’s disability, Burris was eligible to receive Dependents’ Educational Assistance (DEA) benefits. In October 2010, Burris, then 35-years old, elected to receive retroactive benefits for a period 2002-2010. During a portion of that period, Burris was enrolled as an undergraduate student. Burris’s studies were interrupted in 2005 when his mother unexpectedly passed away. Burris became the primary caretaker for his father, who suffered from prostate cancer. Burris was unable to attend school until his DEA eligibility had expired. The VA denied Burris’s request for an extension of his eligibility period, citing VA regulations that prohibit extensions for dependents “beyond age 31,” 38 C.F.R. 21.3041(g)(1), (g)(2), 21.3043(b), and refused to reimburse Burris for educational expenses incurred 2002-2004 because DEA benefits cannot be paid for expenses incurred more than one year prior to the application date. The Board of Veterans’ Appeals and Veterans Court affirmed the denial of equitable relief. The Federal Circuit affirmed. The Veterans Court lacks jurisdiction to grant equitable relief in these circumstances, 38 U.S.C. 7261. View "Burris v. Wilkie" on Justia Law

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Saunders served on active duty in the Army, 1987-1994. Saunders did not previously experience knee problems but, during her service, sought treatment for knee pain and was diagnosed with patellofemoral pain syndrome (PFPS). Saunders’s exit examination reflected normal lower extremities but noted Saunders’s history of knee swelling. The VA denied Saunders’s 1994 claim for disability compensation because she failed to report for a medical examination. In 2008, Saunders filed a new claim, which was denied. In 2011, a VA examiner noted that Saunders reported bilateral knee pain while running, squatting, bending, and climbing but had no anatomic abnormality, weakness, or reduced range of motion. Saunders had functional limitations on walking, was unable to stand for more than a few minutes, and sometimes required a cane or brace. The examiner concluded that Saunders’s knee condition was at least as likely as not caused by, or a result of, Saunders’s military service but stated there was no pathology to render a diagnosis. The Board of Veterans’ Appeals and Veterans Court rejected her claim under 38 U.S.C. 1110. The Federal Circuit reversed; “disability” in section 1110 refers to the functional impairment of earning capacity, not the underlying cause, which need not be diagnosed. Pain alone can serve as a functional impairment and qualify as a disability, no matter the underlying cause. View "Saunders v. Wilkie" on Justia Law

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In November 2014, the Board of Veterans’ Appeals denied Bly’s request for service connection for bilateral hearing loss. Bly appealed to the Veterans Court. After his opening brief was filed, Bly and the government filed a joint motion for partial remand. The Veterans Court granted the motion, citing to Rule 41(b) of the Veterans Court’s Rules of Practice and Procedure, and noting that “this order is the mandate of the Court.” Bly applied for attorneys’ fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412, 31 days later. Remand orders from the Veterans Court may entitle veterans to EAJA fees and expenses. Under 28 U.S.C. 2412(d)(1)(B), such EAJA applications must be made “within thirty days of final judgment in the action.” The Veterans Court reasoned that its judgment became final immediately because the order remanded the case on consent and stated that it was the mandate of the court. The Federal Circuit vacated the denial of his application, reasoning that the consent judgment at issue became “not appealable” 60 days after the entry of the remand order under 38 U.S.C. 7292(a). View "Bly v. Shulkin" on Justia Law