Johnson v. Shinseki

Johnson v. Shinseki, 26 Vet.App. 237 (Mar. 27, 2013) (en banc)

EXTRASCHEDULAR CONSIDERATION (38 C.F.R. § 3.321(b)(1))

The Board is not required to consider whether a claimant is entitled to referral for extraschedular consideration of his multiple disabilities on a collective basis. An extraschedular evaluation is awarded solely on a disability-by-disability basis and not on the combined effect of multiple disabilities. But see concurring and dissenting opinions.

Robertson v. Shinseki (clemency discharge and entitlement to VA benefits)

Robertson v. Shinseki, docket no. 11-3521 (Vet. App. Mar. 15, 2013) 

Any failure on the part of VA to fully explain its character-of-discharge determination cannot be “clear and unmistakable error” because it is simply a breach of VA’s duty to assist. This case also reaffirmed prior holdings that a Presidential pardon only relieves the legal punishment of a general court-martial conviction, “but does not eliminate the consideration of the conduct” that resulted in conviction. In other words, a clemency discharge does not automatically entitle a veteran to VA benefits. VA is still allowed to consider the conduct that resulted in the discharge when considering eligibility to VA benefits.

Rickett v. Shinseki

Rickett v. Shinseki, 26 Vet.App. 210 (Mar. 12, 2013) (per curiam order)

EQUITABLE TOLLING – TIMELY MISFILING

Equitable tolling is warranted when a veteran submits an NOA to VA’s Office of the General Counsel within the 120-day appeal period. The Court stated that “equitable tolling is predicated primarily on the due diligence of the prospective appellant as opposed to the particularity of the location at which the prospective appellant misfiles his or her NOA.” 26 Vet.App. at 218. The criteria for equitable tolling in cases of timely misfilings are (1) a timely misfiling (i.e., within the 120-day appeal period); (2) the intent to appeal as shown in the form and content of the NOA and the circumstances surrounding the filing of the NOA; (3) notice to VA of intent to appeal; and (4) relaxed due diligence for pro se appellant based on totality of the circumstances. Id. at 218-20.

Beasley v. Shinseki (VA’s duty to obtain medical opinion)

Beasley v. Shinseki, docket no. 2012-7029 (Fed. Cir. Mar. 11, 2013)

The U.S. Court of Appeals for the Federal Circuit reaffirmed that it has jurisdiction to review denials of petitions for writs of mandamus from the U.S. Court of Appeals for Veterans Claims (CAVC). The question on the merits of the case was whether VA’s duty to assist required VA to obtain a medical opinion from the veteran’s VA physician based on evidence that had not been submitted to the Board. The Federal Circuit held that VA’s duty to assist is not an “open-ended obligation . . . to provide a medical examination or opinion upon demand.”

In a spirited dissent, Judge Newman frames the issue as whether VA “can prohibit a veteran’s VA physician from reviewing the veteran’s evidence of service connection, lest the physician’s opinion present a ‘conflict of interest.’” Judge Newman states that “[t]his cannot be what Congress intended by the ‘duty to assist’” and asserts that the petition for mandamus should be granted.