Wednesday, February 27, 2013

Shephard v. Shinseki

Shephard v. Shinseki, docket no. 11-2074 (Vet. App. Feb. 27, 2013) This case involves the question of whether a veteran is entitled to recoup disability benefits that were withheld while the veteran was incarcerated. When a veteran who is receiving monthly VA benefits is incarcerated for a felony conviction, a portion of benefits is withheld starting on the 61st day of incarceration. 38 U.S.C. § 5313(A)(1). Upon release, the veteran’s full benefits can resume. 38 C.F.R. § 3.665(i). If the veteran’s conviction is overturned, the amount withheld can be restored. 38 C.F.R. § 3.665(m). But unless the conviction is overturned, the veteran is not entitled to receive the amount withheld during incarceration. The Court held that the governing statute “contains neither an implicit nor explicit command to pay, upon a veteran’s release from incarceration, those sums previously reduced.”

Thursday, February 21, 2013

Walker v. Shinseki

Walker v. Shinseki, docket no. 2011-7184 (Fed. Cir. Feb. 21, 2013) The Federal Circuit held that the theory of establishing service connection via a showing of “continuity of symptomatology,” under 38 C.F.R. § 3.303(b), is limited to only chronic conditions listed in 38 C.F.R. § 3.309(a). In this case, a claimant tried to establish service connection for hearing loss with lay statements showing that his hearing worsened in service and continued to worsen following service – in other words, by showing “continuity of symptomatology.” The Federal Circuit held that this method of establishing entitlement to service connection is limited to only to those chronic conditions listed in § 3.309(a). The Federal Circuit acknowledged that there was no specific cross-reference to § 3.309(a) in § 3.303(b), but found that a “harmonious reading” of these regulations (along with § 3.307(a)) “supports an implicit cross reference to § 3.309(a) in § 3.309(b).

Tuesday, February 19, 2013

Bowers v. Shinseki

Bowers v. Shinseki, docket no. 10-3399 (Vet. App. Feb. 19, 2013) The presumption of service connection for amyotrophic lateral sclerosis (ALS) is available only to those who meet VA’s definition of “veteran” – and is, therefore, not available to those whose only period of active service was active duty for training, unless the claimant shows that he/she incurred the condition during that active duty for training. The veteran in this case sought service connection for ALS on a presumptive basis under 38 C.F.R. § 3.318. The veteran served in the National Guard from March 1972 to March 1978, with a continuous period of active duty for training that exceeded 90 days. VA denied the claim because it found that there was no evidence that he had a disease or injury that was incurred or aggravated during his period of active duty for training – and, therefore, that period of service did not qualify him for VA benefits. The CAVC affirmed.