Joe Whitcomb
Costello v McDonough - procedural due process rights
Costello v. McDonough, 36 Vet.App. 43 (2023) revolves around Eugene Costello's appeal against the decision made by the Board of Veterans' Appeals. The board denied him a higher disability rating and an earlier effective date for service connection for coronary artery disease (CAD). Costello argues that 38 C.F.R. § 20.1305(a) is invalid as it violates claimants' due process rights. On the other hand, the Secretary asserts that the regulation is valid and that Costello was given adequate notice and opportunity to present his case. Ultimately, the Court affirms the Board's decision, stating that Costello fails to demonstrate that the regulation violates procedural due process rights. The Court also finds that Costello has not met the requirements to challenge the regulation on its face, as he does not provide an explanation of how the Court could amend the regulation to resolve the alleged due process violation. Additionally, the Court notes that Costello did not present any discernable as-applied due process challenge and did not provide a persuasive challenge to the Secretary's interpretation of the regulation in question. Attorneys involved in the case include James L. Heiberg, Michael S. Just, Richard J. Hipolit, Mary Ann Flynn, and Dustin P. Elias. The case was presided over by Judges PIETSCH, MEREDITH, and LAURER.
Gray v McDonough - VA taking cases out of order
Justin D. Gray took decisive action by filing a petition for extraordinary relief, specifically a writ of mandamus, with the goal of compelling the Board of Veterans' Appeals (Board) to promptly decide his appeal within a 45-day timeframe. Gray's appeal revolves around his claim that the Board violated 38 U.S.C. § 7107(a)(1) by handling appeals out of the designated order. In response, Denis McDonough, the Secretary of Veterans Affairs, acknowledged that certain categories of cases were indeed being processed out of order but assured that measures had been implemented to prevent such occurrences in the future. The Secretary, however, opposed the issuance of a writ, arguing that it would give priority to Gray's appeal at the expense of others and potentially be viewed as "line jumping." Ultimately, the Court of Appeals for Veterans Claims dismissed Gray's petition as moot since his appeal had already been remanded to the agency responsible for initial jurisdiction for further review.
Encarnacion v McDonough - notice of disagreement and request for reconsideration
In the case of Encarnacion v. McDonough, 36 Vet.App. 194 (2023), we delve into the appeal of a surviving spouse regarding the dismissal of a veteran's claim for a higher rating for a knee condition by the Board of Veterans' Appeals. The Board argued that it lacked jurisdiction to consider the Notice of Disagreement (NOD) filed by Carmen L. Encarnacion, the surviving spouse, as it challenged the agency of original jurisdiction's implementation of a Board decision. However, the Court stepped in and overturned the 2018 and 2020 Board decisions, stating that the Board failed to fulfill its duty to assess whether the NOD could be seen as a request for reconsideration by the Board Chairman. The Court clarified that the Board does not have the authority to review the implementation of a decision by the agency of original jurisdiction, but acknowledged that Ms. Encarnacion's NOD could be interpreted as a motion for reconsideration. Upon reconsideration, the Court ruled that the agency of original jurisdiction's implementation of the Board's decision did not qualify as a "decision" by the Secretary of Veterans Affairs, and therefore, could not be appealed. However, the Court emphasized that the Board was obligated to determine whether the NOD could be regarded as a motion for reconsideration. The Secretary requested reconsideration, arguing that the Court did not take into account the impact of his Solze notice, that the Court lacked jurisdiction over the May 2018 Board decision, and that the Court's vacatur interfered with the authority of the Board Chairman. The Court granted reconsideration, withdrew the vacatur of the May 2018 Board decision, but maintained its analysis regarding the June 2020 Board decision and the obligation of the Agency to consider whether the NOD constituted a motion for reconsideration. Throughout the case, the Court delved into various exceptions to the finality of a Board decision, the appellant's pursuit of benefits after her husband's passing, the failure of the agency of original jurisdiction to address substitution, and the inconsistent decisions of the Board regarding jurisdiction. Additionally, the Court addressed the dissenting argument that Ms. Encarnacion did not specifically assert that her NOD should be treated as a motion for reconsideration, the Court's jurisdiction to review the Chairman's denial of reconsideration, and the application of the Ratliff rule. Finally, the Court analyzed the Board's failure to evaluate whether the NOD could be understood as a request for reconsideration, the Board's independent decision to construe the NOD as a request for reconsideration, and the Board's violation of the Cerullo principle.
Martinez v McDonough - written withdrawal
The case of Martinez v. McDonough revolves around the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) for veteran Pablo R. Martinez. Despite Martinez's initial claim for an increased PTSD rating and subsequent TDIU application being denied, he decided to withdraw his appeal after filing a Notice of Disagreement (NOD) and requesting a decision review officer (DRO) review with a hearing. However, Martinez later argued that his withdrawal was invalid due to his lack of understanding of the consequences, citing his cognitive impairment as a factor. The Board of Veterans Appeals ruled that the withdrawal was valid and did not need to address Martinez's cognitive impairment, a decision that was affirmed by the Court of Appeals for Veterans Claims. This case also delves into the interplay between section 7104 and § 19.55, the Court's decision to grant single-judge reconsideration, and the Secretary's response to Martinez's motion for reconsideration. Additionally, it addresses the Board's determination that Martinez's March 2010 TDIU application was unrelated to his earlier extraschedular TDIU claim, the Board's decision not to take into account Martinez's subjective understanding of the consequences of his withdrawal, and Martinez's failed argument that principles of fair process required the Board to consider evidence of his cognitive impairment. Lastly, a dissenting opinion in the case argues that the majority's ruling is too narrow and suggests that the Board should consider a claimant's understanding when it comes to written withdrawals.
Kernz v McDonough - class certification
Kernz v. McDonough is a compelling case currently under review by the United States Court of Appeals for Veterans Claims. It centers around James M. Kernz's appeal of a decision by the Board of Veterans' Appeals, which deemed his claims for service-connected disability benefits ineligible for further appeal. The Secretary of Veterans Affairs swiftly moved to dismiss the appeal, contending that the Board's decision was not one that could be appealed. In contrast, Kernz sought class certification. After careful consideration, the Court of Appeals for Veterans Claims ultimately deemed the appeal moot. This was due to the fact that the issue regarding the timeliness of Kernz's Notice of Disagreement had been resolved, and the Board had already provided him with the sought-after relief. Despite some dissenting opinions from two judges who were concerned about the potential infringement on veterans' rights to independent judicial review, the Court denied Kernz's request for class certification and dismissed the appeal.
In re Adams - Attorney suspension
Michael A. Adams, a member of the USCAVC bar, faced a 45-day suspension from practicing law in Florida. He was required to adhere to specific rules, attend ethics school, and cover the associated costs. The USCAVC took temporary action by suspending Adams and demanding an explanation as to why similar disciplinary measures should not be imposed. However, Adams failed to respond, resulting in his suspension from practicing before the court until he is reinstated by the Florida Bar.
Wright v McDonough - educational assistance benefits
The case pertains to the case of Wright v. McDonough, where Rodney Wright is contesting the decision made by the Board of Veterans' Appeals that denied him an additional allowance for his daughter's education. The Board's decision was based on the fact that Wright's daughter had already received dependents' educational assistance benefits, which, according to the relevant statute, prevents Wright from receiving the additional allowance. Wright argues that the Board misinterpreted certain sections and that he should be entitled to the allowance. He also claims that his daughter did not actively choose to receive the educational assistance benefits as required by the regulations. The Secretary of Veterans Affairs supports the Board's decision, stating that the statute bars Wright from receiving the additional allowance. Ultimately, the Court of Appeals for Veterans Claims upholds the Board's decision, ruling that the statute does indeed preclude Wright from receiving the allowance. The case also provides further insight into the Secretary's arguments, the Board's decision, and the historical context of the relevant statutory provisions. It delves into the principles of statutory interpretation applied by the court and provides clarification on the specifics of the relevant section. Furthermore, the case explores the Court's interpretation of various statutes and their interplay, as well as the significance of "nonduplication" within the context of this case.
Shorette v McDonough - misuse of the veteran's funds
Karen R. Shorette, the petitioner and legal guardian of veteran Charles R. Shorette, took her case to the Court of Appeals, seeking extraordinary relief in the form of a writ of mandamus. She is determined to have the Department of Veterans Affairs (VA) reinstate her as the representative payee, after being cleared of any misuse of the veteran's funds. Shorette, who is also the veteran's spouse, has made numerous attempts to communicate with the VA, emphasizing her standing as the legal guardian. In addition, she is fighting for the release of over $150,000 that the VA is withholding as part of the veteran's compensation. Although the Court of Appeals for Veterans Claims did not intervene on this specific aspect of her petition, it did grant Shorette standing to bring the petition on behalf of the veteran and asserted its jurisdiction to issue the order sought by Shorette. Moreover, the Court recognized Shorette's letter to the VA as a notice of disagreement (NOD), which requires a response.
Hairston v McDonough - Veteran pension and spousal income
Hairston v. McDonough, 36 Vet.App. 131 (2023) revolves around the appeal of Air Force veteran Arthur Hairston, who was denied a non-service-connected pension by the Board. This pension is not dependent on a veteran having a service-related condition, but rather on their annual income and net worth. Unfortunately, Hairston's claim was denied because his combined income with his wife's earnings exceeded the maximum annual pension rate (MAPR). In response, Hairston argued that the Board misinterpreted or misapplied the regulation, claiming its invalidity due to non-compliance with its authorizing statute, and suggesting that other regulations supersede the one in question. However, the Court of Appeals for Veterans Claims ultimately upheld the Board's decision, affirming the validity of the regulation and the inclusion of Hairston's wife's income in the calculation. The court also provided further clarification regarding the regulations and statutes relevant to the case.
Edwards v McDonough - VA Failure to Clarify Intent
The case of Edwards v. McDonough revolves around a courageous veteran's pursuit of service connection for a debilitating cervical spine injury. Despite facing a denial from the Board of Veterans' Appeals, an unexpected twist emerged as the court revealed the Board's failure to address the ambiguity in Edwards' submission. This oversight had significant repercussions, leading to the case being set aside and remanded for further consideration. Notably, the opinion provided by the VA was deemed inadequate for the crucial process of adjudication. It is crucial to highlight the regulatory framework governing this matter, which encompasses the Veterans Appeals Improvement and Modernization Act of 2017, along with 38 C.F.R. § 20.202(b) and 38 C.F.R. § 20.202(f).
Prewitt v McDonough - extraordinary relief
George D. Prewitt, Jr. brought forth a petition seeking extraordinary relief in relation to a case that was sent back to the Board of Veterans' Appeals. Prewitt argues that there are inherent constitutional issues that prevent the Board from properly adjudicating his case, specifically highlighting concerns with the Appointments Clause. However, the Court rejects Prewitt's petition, as he fails to demonstrate that he is entitled to such extraordinary relief. The Court contends that the Board is subject to review by the executive branch, and that the Court of Appeals for Veterans Claims exercises executive power rather than judicial power, which safeguards against any violation of the Appointments Clause. Furthermore, the Court determines that the Court of Appeals for Veterans Claims does not possess "the judicial power of the United States" as outlined in Article III, as only Article III courts have the authority to exercise such power. The Court also delves into an analysis of the structure and function of the Court of Appeals for Veterans Claims, the legislative background of the Equal Access to Justice Act and the Veterans' Judicial Review Act, and the constitutionality of the Court of Appeals for Veterans Claims as an Article I court. Initially, Prewitt's case was sent back to the Court of Appeals for Veterans Claims due to the Board's failure to consider pertinent evidence, and the Court did not address Prewitt's constitutional arguments. Prewitt then appealed to the Federal Circuit, but his appeal was dismissed on the grounds that his constitutional challenges were inextricably linked to the matters that were remanded. The Court finds that Prewitt's petition for extraordinary relief does not comply with Rule 21, and concludes that Prewitt has other satisfactory means to seek the desired relief. Additionally, Prewitt's motion to amend his petition is denied. Judges Falvey and Jaquith both provide concurring opinions.
Encarnacion v McDonough - Pro Se motion for reconsideration
The case pertains to the case of Encarnacion v. McDonough, which revolves around the dismissal of a veteran's claim for a higher rating for a right knee condition. The Board of Veterans' Appeals determined that it did not have the authority to consider the Notice of Disagreement because it challenged the implementation of a 2018 Board decision. While the Board's conclusion was correct, it had an obligation to review pro se filings with empathy and assess if the submission could be deemed a timely motion for reconsideration. The Court of Appeals for Veterans Claims overturned the decision and sent the case back to the Board with instructions to evaluate whether Ms. Encarnacion's submission could be interpreted as a motion for reconsideration. Additionally, the case explores the Board's duty to assess if Ms. Encarnacion's submission qualifies as a motion for reconsideration, as well as the issue of substitution that the Board neglected to address. It also provides details about the Board's efforts to involve the AOJ in adjudicating substitution and the resulting confusion.
Crews v McDonough - Blue Water Navy Vietnam Veterans Act
The case pertains to the case of Crews v. McDonough, where Robert E. Crews is fighting for a retroactive effective date for disability benefits due to coronary artery disease (CAD) under the Blue Water Navy Vietnam Veterans Act. While the Board of Veterans' Appeals denied his request, the Court of Appeals for Veterans Claims overturned their decision and sent the case back for further proceedings. The case explores the conflicting interpretations of the Blue Water Act by Crews and the Secretary, as well as the eligibility criteria for veterans seeking benefits under the Act. Additionally, it includes a dissenting opinion arguing that the Blue Water Act does not apply to veterans who were denied benefits due to a lack of current disability.
Hatfield v McDonough - clear and unmistakable error
In Hatfield v. McDonough, a compelling case unfolds as a widow fights for dependency and indemnity compensation (DIC) benefits after her husband's tragic death from pulmonary complications linked to radiation therapy. Pat A. Hatfield strongly argues that the Department of Veterans Affairs (VA) neglected their duty by failing to obtain informed consent for her husband's cancer treatment. Initially, the Board of Veterans' Appeals denied her application to reopen the claim, but the tides turned when the Court of Appeals for Veterans Claims reversed and remanded the decision. In a bold move, Hatfield filed a motion to revise the Board's decision from 42 years ago, which had denied her claim for DIC benefits. However, the Court of Appeals for Veterans Claims found itself lacking jurisdiction to address Hatfield's theory of clear and unmistakable error (CUE) in the prior decision. Adding to the complexity, the prior version of the statute did not provide for compensation based on the failure to obtain informed consent. To reach its final verdict, the Court delved deep into an analysis of the legal landscape surrounding CUE and Section 351/1151 compensation, the meaning of Section 351 in 1980, and the statutory and regulatory requirements for informed consent. Ultimately, the Court upheld the Board's decision, stating that there was no CUE in the 1980 decision.
Davis v McDonough - new and material evidence
In the case of Davis v. McDonough, the Board's decision not to consider certain evidence as new and material evidence is upheld. Stanley L. Davis, the appellant, argued that the Notice of Disagreement (NOD) was received by the Board on September 9, 2019, rather than August 14, 2019, based on the distinction between "file" and "receipt." However, the Board determined that the 90-day window for the veteran to submit additional evidence started on the date the NOD was faxed to the Board. Furthermore, the Board did not possess the report from the GAO, letters from the attorney, or affidavits from a separate case in a constructive manner. The appellant's reliance on the acknowledgement letter's date as the date of receipt of the NOD was considered unreasonable, and the appellant could not rely on the brief to the Board to establish a material fact. As a result, the Court ultimately upheld the Board's decision.
Cook v McDonough - timeframes for evidence- proper notice
In the Cook v. McDonough case, Everett W. Cook argues that the Board overlooked crucial evidence that was submitted between the AOJ decision and the NOD. He further asserts that the Board failed to provide a comprehensive statement as required by subsection 7104(d)(2). In response, Denis McDonough, the Secretary of Veterans Affairs, contends that subsections 7113(c)(1) and 7113(c)(2)(A) prohibit the Board from considering evidence submitted during that time period. The Court of Appeals for Veterans Claims ultimately decreed that the Board should only consider evidence submitted concurrently with the NOD, disregarding any evidence submitted between the AOJ and the NOD. The Court also deemed the Board's general statement inadequate and remanded the case for further examination. They provided clarity on specific timeframes for evidence consideration, rejected Mr. Cook's interpretation of subsection 7113(c)(2)(A), and addressed the Board's failure to comply with subsection 7104(d)(2). Furthermore, the Court emphasized the significance of accuracy in the Board's general statement and the necessity of providing proper notice to the veteran.
Kriner v McDonough - intent to file
Kriner v. McDonough delves into the case of Harriet H. Kriner, a surviving spouse seeking various benefits after her husband's service in the United States Army. Initially denied by the Board of Veterans' Appeals, the decision was later affirmed by the Court of Appeals for Veterans Claims. Undeterred, Kriner took her case to the Federal Circuit, where the denial of burial benefits was upheld, but the denial of accrued benefits was vacated and remanded. The Federal Circuit determined that the Court had not provided sufficient grounds for concluding that an intent to file could not allow for accrued benefits. However, on remand, the Court ruled that the veteran's letter to the Department of Veterans Affairs did not constitute an intent to file claim for benefits, resulting in no pending claim for Kriner as a surviving spouse to pursue. The Court's decision hinged on its interpretation of regulations, relevant cases, and the arguments presented by both Kriner and the Secretary. Notably, Judge Jaquith expressed a dissenting opinion, disagreeing with the majority's interpretation of 38 C.F.R. § 3.155.
Wiker v McDonough - inadequate Notice
Wiker v. McDonough, a notable case in the United States Court of Appeals for Veterans Claims, centers around Navy veteran Roger W. Wiker and his pursuit of an earlier effective date for left-eye blindness. Despite the denial by the Board of Veterans Appeals, Wiker argues that the Board erred in fulfilling its duty to notify him of a prior rating decision denying service connection for cataracts. The Court of Appeals for Veterans Claims ultimately agrees with Wiker, ruling that the VA's initial notice was inadequate and that the decision denying the claim was not final. Moreover, the Court determines that Wiker did not have knowledge of the denial and that the one-year appeal window was not reasonably known to him. As a result, the Court remands the case for further evaluation, highlighting the VA's failure to meet notice requirements and dismissing the Secretary's arguments for exceptions. Additionally, the Court concludes that the two letters sent to Wiker lacked sufficient information to inform him of his right to appeal.
In re Steinberg-Attorney misconduct
In an intriguing turn of events, Michael A. Steinberg faced a 90-day suspension from the Court's bar due to a violation of the Model Rules of Professional Conduct. To seek reinstatement, Steinberg was required to complete 6 hours of ethics-focused CLE. However, his initial motion for reinstatement was denied as he failed to establish entitlement. The Court then held his second motion in abeyance, citing a lack of confirmation regarding the reasons for his discipline. Consequently, the Court referred Steinberg's second motion to the Committee on Admission and Practice for a thorough report and recommendation. After careful consideration, the Committee recommended Steinberg's reinstatement under a probationary period of 2 years, subject to certain conditions. Taking this into account, the Court partially granted Steinberg's motion, thus reinstating him to the Court's bar with the stipulated 2-year probationary period
Estevez v McDonough - pyramiding benefits
Estevez v. McDonough, a notable case in 2023, revolves around Emilio Estevez's appeal for disability evaluations exceeding 20% for his right shoulder and left knee disabilities, as well as over 10% for lichen planus. This intriguing case delves into Estevez's medical history, examinations, and the specific criteria used to assess his conditions. The court thoroughly analyzes the amendment to DC 5201, which introduced new terminology and ranges of motion for shoulder evaluations. Both parties present compelling arguments, and the court also tackles the issue of the Board's denial of separate evaluations for Estevez's left knee disability, the concept of "pyramiding" benefits, and the duty to maximize entitlements. Additionally, the court references recent cases that bear relevance to Estevez's situation. Ultimately, the court rejects Estevez's plea for separate evaluations regarding pain at rest and pain on motion, but remands the case for further clarification on a higher left knee evaluation. Furthermore, the court orders a readjudication on the matter of a lichen planus evaluation exceeding 10%. In its final verdict, the court affirms parts of the decision, sets aside others, and remands the case for further examination and resolution.
Purpose Built Families Foundation Inc v McDonough - Supportive Services for Veteran Families (SSVF) grants.
The case also delves into the riveting court case of Purpose Built Families Foundation, Inc. v. McDonough. In this compelling legal battle, PBFF fought to secure a stay of administrative action in order to prevent the termination of their Supportive Services for Veteran Families (SSVF) grants. These grants, established under the Veterans’ Mental Health and Other Care Improvements Act in 2008, faced termination after an audit raised concerns about questionable costs. PBFF took their case to the U.S. District Court for the Southern District of Florida, where they were granted a temporary restraining order. However, despite this initial victory, the VA ultimately decided to terminate the grants once again. Undeterred, PBFF appealed to the Board of Veterans’ Appeals and even filed a petition for extraordinary relief with the Court of Appeals for Veterans Claims. The Court thoroughly examines its authority to issue a stay under the All Writs Act and discusses the four crucial factors it considers when deciding whether to grant a stay. Moreover, the Court asserts its jurisdiction over PBFF's grant terminations. In a final verdict, the Court denies PBFF's request for a stay, citing their failure to demonstrate a likelihood of success on the merits. Additionally, the Court dismisses several subsidiary arguments presented by PBFF, further solidifying their decision.
Terry v McDonough - multiple administrative review requests
The case of William E. Terry presents a compelling challenge to the decision of the Board of Veterans' Appeals, which denied his claims for service connection for sleep apnea and basal cell carcinoma. This particular case raises intriguing issues related to the provisions of the Veterans Appeals Improvement and Modernization Act of 2017 (AMA). Despite the initial denial of Terry's claim, he took swift action by filing a Notice of Disagreement (NOD) and later opting into the Rapid Appeals Modernization Program (RAMP). However, the AOJ rejected the service connection for both conditions, leading Terry to file a supplemental claim, only to face yet another denial. Determined and undeterred, Terry then sought a direct review by the Board. In a significant ruling, the Court of Appeals for Veterans Claims recognized the claimant's right to file multiple administrative review requests and invalidated the regulation governing types of review. Moreover, the Court acknowledged the timeliness of Terry's NOD as an appeal and criticized the Board for neglecting to address his basal cell carcinoma claim. Consequently, the Court reversed the decision and remanded the case for further proceedings.
Mayfield v McDonough -Courts limited review
The case also delves into the intriguing case of Mayfield v. McDonough, which revolves around the appeal of a veteran's surviving spouse who was denied benefits. This case draws references from other notable cases, including Breedlove v. Shinseki, which established the Court's discretion to allow substitution of a movant when an appellant passes away during an appeal. In Mayfield v. McDonough, the spouse unfortunately passed away while the appeal was ongoing, prompting the granddaughter to seek substitution. However, the regional office (RO) denied the granddaughter's request, with the Secretary of the Department of Veterans' Affairs (VA) opposing the motion. The Court of Appeals for Veterans Claims ruled that it could not review whether the RO improperly denied the granddaughter's request, as the remedy for the issue lies within the administrative appeal process. The case further explores the complex substitution proceedings, highlighting the disagreement between the movant and the Secretary regarding the appropriate forms and the RO's authority to rule on the substitution request. Eventually, the Court orders the Secretary to have the RO make a ruling, but the request is ultimately denied. The movant argues against this decision, but the Court determines that it cannot directly review the RO's determination. The case also emphasizes the Court's limited jurisdiction and the importance of respecting statutory limits, clarifying that the Court cannot review the granddaughter's eligibility for substitution until the Board has made a decision on the matter. Lastly, the case delves into the connection between substitution and accrued benefits, with the Court vacating the motion for substitution and dismissing the appeal.
Taylor v McDonough - secrecy oath
Taylor v. McDonough, 36 Vet.App. 261 (2023) delves into the critical matter of determining the effective date for the award of benefits in cases involving post-traumatic stress disorder (PTSD) and total disability rating based on individual unemployability (TDIU). Bruce R. Taylor, a courageous Vietnam War veteran who participated in the Edgewood Arsenal Experiments and was bound by a secrecy oath, faced numerous obstacles in seeking medical assistance and filing for benefits. Unfortunately, the Board of Veterans' Appeals (Board) denied Taylor's request for an earlier effective date for benefits. However, Taylor's unwavering determination led him to appeal the Board's decision to the U.S. Court of Appeals for the Federal Circuit. In a significant turn of events, the Federal Circuit reversed the Board's decision and sent the case back for further consideration. Notably, the Federal Circuit ruled that the effective date for benefits should be calculated as if the secrecy oath had never been a hindrance. Consequently, on remand, the Court of Appeals for Veterans Claims reversed the Board's decision and ordered expeditious proceedings. The Court further determined that the effective date for PTSD benefits should be the day following Taylor's discharge from active duty military service, and the Board was directed to reevaluate the effective date for TDIU benefits. This groundbreaking decision ensures that Taylor receives the just and timely benefits he deserves.
Greer v McDonough - Valuation of a Trust
Gloria Greer is fighting against the decision made by the Board of Veterans' Appeals that denied her father, Walter Brinkman, the right to receive non-service-connected pension benefits. The Board concluded that Brinkman's net worth, which included a family trust, rendered him ineligible for these benefits. Greer's appeal raises two crucial questions: whether the Board is obligated to provide notice of its decision in accordance with 38 U.S.C. § 5104(b) as amended by the AMA, and whether the Board must seek an expert legal opinion to interpret the terms of the trust agreement. In response, the Court of Appeals for Veterans Claims has ruled that the Board is not legally required to provide notice or obtain an expert opinion. However, the case has been sent back to the Board to rectify two specific errors: the inconsistency in the valuation of the trust and the need to clarify which version of the regulation is applicable.
Duran v McDonough-Replacement of a Disability Rating and the Pro-Veteran Canon
In the case of Duran v. McDonough, a veteran appellant challenged the decision made by the Board of Veterans' Appeals. The Board had initially granted a combined disability rating of 50% for three manifestations of Parkinson's disease but replaced the minimum 30% rating for paralysis agitans. Additionally, the Board denied separate compensable ratings for five other manifestations. However, the court ruled that the replacement of the 30% minimum disability rating was not permissible and remanded the case for the Board to address PTSD symptoms. The court also agreed with the appellant's interpretation of the regulation's plain meaning, leading to the vacating and remanding of the case and the dismissal of the remaining appeal. The court's decision was influenced by the pro-veteran canon, which emphasizes interpreting provisions for benefits in favor of the beneficiaries, as well as the rule against "pyramiding" disabilities under multiple diagnoses. Furthermore, the court discussed the ambiguity of the regulation, the lack of deference to the Board's decision, and the application of the pro-veteran canon to resolve the ambiguity in favor of the appellant. The court referenced relevant case law and regulations, including the Board's denial of ratings for gunshot wound residuals, and provided further discussion on Parkinson's disease and "paralysis agitans." The case was presided over by Judges ALLEN, TOTH, and JAQUITH, with Judge TOTH writing the opinion and Judges JAQUITH and ALLEN submitting concurring opinions. The appellant was represented by attorneys Stephani M. Bennett, John S. Berry, and Emily A. Weiss, while attorneys Nathan Bader, Richard A. Sauber, Mary Ann Flynn, Joan E. Moriarty, and Crystal Liu represented the appellee.