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

Cogburn served in the Army, 1968-1971, including 12 months in Vietnam. In 1974, Cogburn sought VA disability compensation and pension benefits based on a severe nervous condition. A 1975 denial of his pension claim did not address the disability claim. He did not appeal. In 1983, Cogburn again sought disability compensation and pension benefits. He was diagnosed with Post-PTSD after a VA examination that failed to connect Cogburn’s PTSD to stressors from military service; the VA granted a non-service connection pension but denied service connection. In 1985, the Board of Veterans’ Appeal concluded that the record did not identify any in-service traumatic events, noting that Cogburn repeatedly failed to attend VA examinations to determine if service-connected stressors caused his PTSD. The Board determined that “the preponderance of the medical evidence suggests that the veteran’s post service emotional and adjustment difficulties are manifestations of schizophrenia.” There was no opportunity for further review. In 2002, Cogburn claimed that his 1974 disability compensation claim was never adjudicated. The RO determined that the claim was adjudicated as a claim for PTSD and had been implicitly denied in the 1985 decision. In 2012, on remand, the Board affirmed the finding of implicit denial. The Veterans Court and Federal Circuit affirmed; the implicit denial rule applies to both formal and informal claims. Its use does not violate the VA due process regulation's notice provision.. View "Cogburn v. McDonald" on Justia Law

Dean, a preference-eligible veteran, applied for a position as a “Recent Graduate” Wage and Hour Specialist within the Department of Labor. The announcement stated that the position “is a part of the Pathways Employment Program,” open only to “[e]ligible recent graduates from qualifying educational institutions” and separately identified job qualifications (which did not include a minimum educational requirement) and program eligibility, which required a “degree or certificate from a qualifying educational institution within the previous two years,” or previous six years for certain veterans; 34 veterans met the requirements. Dean was not considered because he had not graduated within the timeframe. Dean filed an unsuccessful Veterans Employment Opportunities Act (VEOA) appeal. The Board cited 5 U.S.C. 3302(1), authorizing the President to except positions from the competitive service, and 5 U.S.C. 3308, limiting OPM’s ability to include minimum educational requirements for positions in the competitive service that are subject to examination. The Federal Circuit affirmed, finding that that the Board had jurisdiction under section 3330a of the VEOA because sections 3302(1) and 3308 are statutes relating to veterans’ preference, and that Dean’s veterans’ preference rights under those sections were not violated. View "Dean v. Dep't of Labor" on Justia Law

Mulder served in the Army for three separate periods between 1982 and 1994, accumulating about two years of honorable service. In 1998, the VA assigned Mulder a 50% disability rating for two service-connected conditions. Mulder was arrested and charged with felonies. Because Mulder was unable to post bail on July 11, 2005, he remained in custody pending trial. On May 19, 2006, Mulder pleaded no contest and a conviction was entered. On June 16, 2006, the court ordered that Mulder serve an initial term of confinement of eight years, six months, followed by six years of supervised release, with credit for the 384 days he had been in custody, specifying May 19, 2006, as the “Date(s) Convicted.” The VA must reduce benefits payments if the recipient is incarcerated for a period in excess of 60 days for conviction of a felony, 38 U.S.C. 5313(a)(1), beginning on the sixty-first day of such incarceration. In July 2007, the VA notified Mulder that his felony conviction and resulting incarceration required it to reduce his disability compensation, effective July 19, 2006. The Board, the Veterans Court, and the Federal Circuit agreed with the VA’s use of the date of the plea and conviction in calculating the reduction. View "Mulder v. McDonald" on Justia Law

The Defense Contract Management Agency within the Department of Defense (DOD) employed Vassallo as a computer engineer in 2012. That summer, it announced a vacancy for the position of Lead Interdisciplinary Engineer, stating that only certain individuals could apply: “[c]urrent [DCMA]” employees or “[c]urrent [DOD] [e]mployee[s] with the Acquisition, Technology, and Logistics . . . [w]orkforce who are outside of the Military Components.” Vassallo, a veteran, applied, but DCMA rejected his application. The Office of Personnel Management (OPM) determined that DOD was not required to afford him veterans employment preferences under the Veterans Employment Opportunities Act of 1998 (VEOA), 112 Stat. 3182. OPM defines the word “agency” in 5 U.S.C. 3304(f)(1) to mean “Executive agency” as defined in 5 U.S.C. 105 and concluded that DCMA was not required to give Vassallo an opportunity to compete under 5 U.S.C. 3304(f)(1) because the DOD— the agency making the announcement—did not accept applications from outside its own workforce. Vassallo sought corrective action from the Merit Systems Protection Board, which concluded that OPM’s regulation permissibly fills a gap in the governing statute. The Federal Circuit affirmed, rejecting arguments that the OPM regulation contradicts the plain terms of the statute and unreasonably undermines the purpose of the VEOA. View "Vassallo v. Dept. of Defense" on Justia Law

During the Vietnam War, herbicides were applied near the Korean DMZ in 1968-1969. The 2003 Veterans Benefits Act authorized benefits for children with spina bifida born to certain veterans, 38 U.S.C. 1821. In 2004, the VA amended its Manual to provide benefits for “individuals born with spina bifida who are the children of veterans who served with specific units … between September 1, 1967 and August 31, 1971” conceding that certain veterans who served in April 1968 to July 1969 were exposed to herbicides. The final rule, effective February, 2011, was applicable “to all applications for benefits that are received by VA on or after February 24, 2011 and to all applications … pending before VA,” the Veterans Court, or the Federal Circuit on February 24, 2011. McKinney filed a claim in 2010 for service connection based on exposure to Agent Orange during his DMZ service, which began in August 1969. The VA denied his claim. The period of presumed exposure expired one month before McKinney’s service. The VA finalized the 2011 regulation, which extended the presumed exposure period, and granted McKinney’s claim under that regulation, but denied him an effective date earlier than February 2011, so that he received benefits for the post-2011 portion of his claim. The Federal Circuit upheld the VA’s decision to assign the 2011 regulation a prospective effective date. View "McKinney v. McDonald" on Justia Law

Carter served in the Army, 1965-1967. In 1989, he sought disability benefits for an injury to his back. The VA denied his claim. He sought to reopen in 2005, filing new evidence that he had aggravated the injury during his service. In 2006, the VA reopened, but denied the claim. The Board of Appeals affirmed in 2009. While appeal was pending, Carter changed counsel. He filed Form 21-22a in March 2010, naming a private attorney in place of Disabled American Veterans. New counsel requested a copy of Carter’s claim file. In June 2010, new counsel and the government jointly requested partial vacatur of the 2009 decision; the Veterans Court remanded the case with instructions. The Board sent a letter to Carter and Disabled American Veterans, stating that additional evidence must be submitted within 90 days (November 4, 2010). Counsel did not receive the letter. On December 13, 2010, the VA sent new counsel Carter’s file, nearly nine months after her requested. She did not immediately read the file and did not see the letter. In February 2011, without hearing from Carter, the Board again denied his claim. Carter’s attorney received a copy of the decision in December 2011. The Veterans Court affirmed. The Federal Circuit vacated. The Veterans Court incorrectly understood the law governing this notice defect. View "Carter v. McDonald" on Justia Law

In 2000, Herbert, a Navy veteran, sought disability benefits for PTSD, which he alleged was connected to a typhoon that his ship encountered travelling to Japan in 1956. Ship logs and letters confirm that the USS Mount McKinley weathered a bad storm around that time. A 2002 VA medical examination revealed no PTSD; the Regional Office denied the claim. Herbert filed notice of disagreement, but his hearing did not occur until 2008. Herbert underwent a 2004 examination at the VA’s Veterans Center and a 2006 examination by a private psychologist that both produced diagnoses of PTSD. A 2006 VA examination and a 2007 examination conducted at the VA’s behest did not. The Board of Appeal denied service connection finding Herbert not credible in testifying to witnessing others go overboard. The Veterans Court remanded. A VA examiner concluded that experiencing the typhoon itself was an adequate stressor to support a PTSD diagnosis, but that Herbert’s symptoms did not meet diagnostic criteria for PTSD” In 2011, Herbert had another private medical examination, which diagnosed PTSD based on the storm alone. In 2012, the Board rejected Herbert’s claim, finding him “not credible in reporting his psychiatric symptoms or the stressors.” The Veterans Court and Federal Circuit affirmed. View "Herbert v. McDonald" on Justia Law

Scott served on active duty in 1972. In 1999, Scott tested positive for hepatitis C. He applied for disability benefits in 2005, alleging that he contracted hepatitis C in service from air-gun inoculations. The VA denied service connection. Scott was incarcerated during his appeal. The VA acknowledged Scott’s request for a video conference hearing, and requested the date on which he was expected to be released. Scott responded “January 13, 2017,” and “next parole review date is scheduled for March of 2009.” The VA notified Scott that his hearing was scheduled for March 14, 2008. Scott, still incarcerated, failed to appear. On March 23, Scott requested a rescheduled hearing. The Board of Veterans’ Appeals found that Scott had “not shown good cause,” with no mention of Scott’s incarceration. The Board denied Scott’s claim for service connection, noting that Scott “failed to report for his scheduled hearing.” Before the Veterans Court, Scott, then represented by counsel, did not raise the hearing issue. The Veterans Court vacated based on an inadequate medical examination. In 2011, the VA continued the denial without mentioning the hearing issue. Scott submitted a re-certification of appeal form which checked “YES” in answer to “WAS HEARING REQUESTED?” Scott did not raise the hearing issue with the Board, which affirmed, noting that Scott “has not renewed his request” for a hearing. Before the Veterans Court, in 2013, Scott raised the hearing issue for the first time since March 23, 2008. That court affirmed, stating that raising the hearing issue “amounts to … undesirable piecemeal litigation” for no compelling reason. The Federal Circuit affirmed. The obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the veteran fails to raise them. View "Scott v. McDonald" on Justia Law

Delisle served on active duty in the U.S. Army, 1952-1954, and injured his left knee in a ski accident. After that injury, Delisle also began to experience chronic pain in his other knee. In 1978, the Department of Veterans Affairs granted Delisle’s claim for entitlement to a service connection for his right-knee disorder and assigned a 10 percent disability rating. Despite continued treatment, the condition of Delisle’s right knee continued to deteriorate. In 2009, Delisle unsuccessfully sought an increase to the 10 percent disability rating for his right knee. While appeal to the Board of Veterans Appeals was pending, he underwent the total right-knee replacement. As a result, the VA assigned a 100 percent disability rating for the period from April 7, 2010 to May 31, 2011, and assigned a 60 percent rating, along with a total disability rating based on individual employability for the period following May 31, 2011. Delisle challenged only the determination that he was not entitled to a higher disability rating for the nine months before his surgery. The Board rejected the claim. The Veterans Court affirmed. The Federal Circuit dismissed. The Veterans Court’s determination concerned questions of fact, which are beyond the court’s jurisdiction, 38 U.S.C. 7292(d)(2) View "Delisle v. McDonald" on Justia Law

In the “NOVA” decision, the Federal Circuit approved a plan requiring the Department of Veterans Affairs (VA) to identify and rectify harms caused by wrongful application of former 38 C.F.R. 3.103. The Plan required that the VA notify every claimant who received a final Board decision during the specified period and did not receive full relief. If a claimant had a case outside of the Board’s jurisdiction, but mandate had not issued and the appellate court’s judgment was not final, the VA was obligated to offer to submit a joint motion for remand. If the mandate had issued, the VA was required to offer to submit a joint motion to recall mandate and a joint motion for remand. Smith served in the Army, 1963-1965. In 2000, Smith filed an unsuccessful claim for compensation for post-traumatic stress disorder (PTSD). In 2008, Smith was awarded service connection for PTSD with a 100% disability rating and a 2006 effective date. Smith appealed to the Board, which, in 2011, denied entitlement to an earlier effective date. The Board did not apply the invalid Rule interpretation. The Veterans Court affirmed and, days before the NOVA decision, entered judgment. In 2013, the parties filed a joint motion to recall that judgment. The decision fit the search terms profile under the Plan and triggered the VA’s obligation to offer to submit a joint motion. Smith did not claim that VA failed to comply with 38 C.F.R. 3.103(c)(2) or any prejudice in the conduct of the Board hearing. The Federal Circuit affirmed denial of the motion, stating that neither its decisions nor the Plan preclude appropriate denial. View "Smith v. McDonald" on Justia Law