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.

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.”

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).

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.