Nohr v. McDonald

Nohr v. McDonald, docket no. 13-1321 (Oct. 30, 2014)

CHALLENGE TO VA MEDICAL OPINION, DUTY TO ASSIST

Held: Veteran’s submission of “interrogatories” in response to a VA medical opinion reasonably raised issues of the examiner’s competency, the adequacy of her opinion, and VA’s duty to assist – and the Board’s failure to respond to the submission rendered its reasons or bases inadequate. *2.

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Suguitan v. McDonald

Suguitan v. McDonald, docket no. 12-1620 (Oct. 29, 2014) (per curiam order)

STANDING, SUBSTITUTION, NUNC PRO TUNC RELIEF

Held: Surviving spouse’s claim to payment under the Filipino Veterans Equity Compensation Fund (FVECF) does not survive her death. Where a surviving spouse would not be entitled to such payment, an asserted beneficiary of the spouse’s estate (i.e., her son) cannot demonstrate that he would benefit from a favorable nunc pro tunc order from the Court, and thus lacks standing to be substituted in her appeal.  

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Roberts v. McDonald

Roberts v. McDonald, docket no. 13-1240 (Oct. 7, 2014)

OFFSET OF ANNUITY AGAINST DIC BENEFITS

Held: Offsets of Survival Benefits Plan (SBP) annuity payments against DIC payments are not covered by 38 C.F.R. § 3.658. VA’s express reliance on the wrong regulation is not harmless error – even if there are other potentially applicable regulations – because the claimant will not have received proper notice of the laws VA relied on in making its decision. 

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Carroll v. McDonald

Carroll v. McDonald, 767 F.3d 1368 (Sept. 24, 2014)

DIC, REMARRIAGE AFTER AGE 57

Held: The 2003 statutory amendment that authorized Dependency and Indemnity Compensation (DIC) benefits for surviving spouses who remarry after age 57 included a provision that created a temporary window of eligibility for those who had been previously ineligible for these benefits. 767 F.3d at 1372.

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Beraud v. McDonald

Beraud v. McDonald, 766 F.3d 1402 (Sept. 12, 2014)

38 C.F.R. § 3.156(b); PENDING CLAIM

Held: VA is required, under 38 C.F.R. § 3.156(b), to expressly determine whether evidence submitted during the one-year appeal period is new and material – and its failure to do so renders the underlying claim nonfinal, despite a subsequent final decision on the same issue. 766 F.3d at 1407. VA is not entitled to the presumption that the records were considered when there is no evidence that the records were even obtained. Id. at 1406-07. 

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Joyner v. McDonald

Joyner v. McDonald, 766 F.3d 1393 (Sept. 12, 2014)

38 U.S.C. § 1117; PAIN CAN ESTABLISH UNDIAGNOSED ILLNESS

Held: “[T]he plain language of [38 U.S.C.] § 1117 makes clear that pain, such as muscle pain or joint pain, may establish an undiagnosed illness that causes a qualifying disability.” 766 F.3d at 1395. The statute does not require the veteran to provide evidence showing that a medical professional has eliminated all possible diagnoses. Id.

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