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

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

K.P. , born in 2004, exhibited no apparent signs of disability for several months, but was then referred to an infant development service. Extensive testing revealed that K.P. suffered significant delays in motor skills. His cognitive skills were within normal limits. K.P. experienced rashes, later identified as a symptom of erythema multiforme, and ear infections. At his one-year well baby visit, K.P. received the measles-mumps-rubella, pneumococcal, and varicella vaccines. He then had a fever and did not nap or eat well. After visits to multiple medical specialists, K.P. was diagnosed with an unspecified mitochondrial disorder, likely present at birth. He now lives in a state of severe neurological disability. He has “no purposeful movements” and breathes with a ventilator. Seeking benefits under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa, his parents alleged that K.P. sustained a permanent brain injury as a result of the vaccines. Their expert testified that K.P.’s underlying mitochondrial disorder prevented him from coping with the oxidative stress from the vaccines. On remand, the special master accepted that the expert had presented a plausible medical theory, but found that K.P.’s condition did not deteriorate as predicted by that theory. The Claims Court disagreed and awarded compensation. The Federal Circuit affirmed. The parents’ burden was to show that K.P.’s mitochondrial disorder was significantly aggravated by the vaccines, not to rule out every other potential cause. View "Paluck v. Sec'y of Health & Human Servs." on Justia Law

Mr. and Ms. Haynes divorced in 1995. Mr. Haynes died in 2000. Ms. Haynes sought Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. 1310, as a “surviving spouse.” Because Ms. Haynes was not married to Mr. Haynes at the time of his death, the VA Regional Office denied the claim. Ms. Haynes later requested that the Regional Office reopen her claim on the presentation of new documentation showing a decision by the Army Board of Correction of Military Records to award Ms. Haynes an annuity as a “former spouse” under the Uniformed Services Former Spouse Protection Act , 10 U.S.C. 1447(10), which permits former spouses to receive annuities. The Regional Office denied the request. The Board of Veterans’ Appeals agreed, while acknowledging Ms. Haynes’ argument that because the basis for her divorce was physical abuse, she should not be required to demonstrate marriage at the time of Mr. Haynes’ death in order to receive DIC benefits. The Veterans Court and Federal Circuit affirmed. Although Mr. Haynes’ abusive actions were documented, the statute requires validly married spouses at the time of the veteran’s death. View "Haynes v. McDonald" on Justia Law

Toomer served in the Army, 1971 to 1974. He sought benefits for degenerative disc disease, claiming connection to a 1972 in-service back strain from lifting heavy objects. In 2004, a VA Regional Office denied the claim. In 2009, the Board of Veterans’ Appeals affirmed, relying on a 2007 VA examination. Although Toomer was treated for a back strain in 1972, there was no evidence from subsequent clinical visits that his current pain was connected to that injury: a 1972 x-ray was normal; after January 1973, there were no complaints of back pain during service; and there were potential post-service injuries, considering his occupation as a construction worker. The Decision was mailed on June 2, 2009. On July 27, Toomer informed the VA that he had not received it. On August 4, the VA mailed another copy, noting that the veteran has “120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal,” On October 28, more than 120 days from the decision date, but within 120 days of the August letter, Toomer appealed to the Veterans Court, which dismissed. The Federal Circuit affirmed, stating that even if it disagreed with that court’s finding that dates on the correspondence were not misleading, and did not constitute “extraordinary circumstances,” revisiting this finding was beyond its jurisdiction. View "Toomer v. McDonald" on Justia Law

Wingard, a 20-year veteran, died in 2005, from causes unrelated to his military service. His daughter sought a burial-plot or interment allowance (38 U.S.C. 2303) and burial benefits (38 U.S.C. 2302(a)(1)), which provides for burial benefits only in the case of a deceased veteran “who at the time of death was in receipt of compensation . . . or was in receipt of pension.”. The Board of Veterans Appeals granted an interment allowance, but denied burial benefits. In 1989, the Department had assigned Wingard a 0% disability rating for a service-connected hernia that had been treated and showed no sign of recurrence. Wingard’s disability rating remained at 0%l. He never received disability compensation, had no claims pending, and never received a Veterans-related pension. The Veterans Court held that 8 U.S.C. 7252(b) did not preclude review and that sections 1110 and 1155 allowed the Department to find some disabilities noncompensable and assign a 0% rating. The court did not address whether “in receipt of compensation,” included “entitled to receive compensation.” The Federal Circuit vacated, holding that Congress has barred the Veterans Court and Federal Circuit from conducting such review, which must be conducted through a direct review of rulemaking determinations under 38 U.S.C. 502. View "Wingard v. McDonald" on Justia Law

Mrs. Dixon was the spouse of a veteran. A 1996 an Order of Support issued by the Juvenile and Domestic Relations District Court of Virginia ordered Mr. Dixon to pay Mrs. Dixon child support of $443.00 per month and spousal support of $1000.00 per month. Mrs. Dixon states that the Order required the Department of Veterans Affairs to garnish these sums from Mr. Dixon’s disability payments. Mr. Dixon did not make these payments. On Mr. Dixon’s death in 2004, Mrs. Dixon filed a claim with the VA Regional Office requesting the payments that she claims should have been paid to her from Mr. Dixon’s VA disability benefits, 1996-2004. The Veterans Court rejected the claim, finding that the VA was never served with legal process instructing garnishment, as required by 42 U.S.C. 659(i)(5); that Mrs. Dixon incorrectly asserted that the VA previously made partial payments pursuant to the Order; and that the $500 monthly payments she received were, instead made pursuant to 38 C.F.R. 3.452 (apportionment of veteran’s benefits if the veteran is not residing with his spouse or children). The Federal Circuit affirmed. View "Dixon v. McDonald" on Justia Law