Top 10 Veterans Service-Connected Disability Compensation Benefit Cases Decided By The Federal Circuit In 2009 – 2010

A disability compensation benefit is paid by the Department of Veterans Affairs (VA) to a veteran who (1) has a service-connected disability (injuries or diseases that happened while on active duty, or were made worse by active military service); and, (2) was discharged under other than dishonorable conditions. There are approximately 23.4 million veterans in the United States, more than 3 million of whom receive disability compensation benefits.

A claim for a VA service-connected disability compensation benefit is filed in a VA Regional Office (VARO). There are 58 VAROs throughout the country. Upon receipt of a claim, the VARO examines the claim to determine if the claimant meets the statutory definition of “veteran” and, if so, whether the veteran has a service-connected disability. A veteran whose claim is denied by the VA has 1 year after notification of the decision is mailed to file an appeal of the denial, called a Notice of Disagreement (NOD). (By the way, current law prohibits a veteran from retaining paid legal counsel before a NOD is filed.)

After filing a NOD, the claimant can request that the denied claim be reviewed by a Decision Review Officer (DRO) at the VARO. If he or she disagrees with the DRO’s findings, the veteran is entitled to file a substantive appeal to the Board of Veterans’ Appeals (BVA), where the veteran may request a hearing. If the veteran disagrees with the decision rendered by the BVA, he or she may appeal to the United States Court of Appeals for Veterans Claims (CAVC). Veterans may appeal final decisions of the CAVC to the United States Court of Appeals for the Federal Circuit (Federal Circuit). (I previously blogged about the VA adjudicative process here .)

The Federal Circuit issued 59 veterans law decisions in 2009, and 30 VA decisions in 2010 through the date of this blog post. Below is a summary and analysis of the VA cases decided by the Federal Circuit in 2009 and 2010 that were especially important (or, at least they seemed especially important to me).

  1. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Under its statutory duty to help develop a claim for benefits, the VA must notify an applicant of any information or evidence that is necessary to substantiate the claim. VA regulations require the notice to specify (1) what further information is necessary, (2) what portions of that information the VA will obtain, and (3) what portions the claimant must obtain. The notices provided to the claimants in these consolidated cases were deficient. As a result, the Federal Circuit, reversing prior rulings, held that, when the VA provides notice that is deficient in any respect, the error is presumed to be prejudicial and requires reversal of any denial of benefits, unless the VA shows that the error did not affect the essential fairness of the adjudication. On appeal, the U.S. Supreme Court reversed the Federal Circuit’s judgment, finding the lower court’s analysis to be flawed. As a result, it is apparently the veteran’s burden, not the VA’s, to demonstrate that deficient notices result in prejudicial error.
  2. Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009). In this case, veteran David L. Henderson, who was diagnosed with paranoid schizophrenia, appealed the decision of the CAVC which dismissed his appeal for lack of jurisdiction on the ground that the appeal was untimely. Henderson filed his appeal 135 days after notice of the adverse decision was mailed to him rather than within 120 days as required by VA regulations; his appeal was 15 days late. In arriving at its decision, the court held that the 120 day appeal period is not subject to equitable tolling. The Federal Circuit affirmed, and dismissed Henderson’s case for lack of jurisdiction. The U.S. Supreme Court is scheduled to hear oral argument in this case on December 6, 2010. (I previously blogged about the Henderson v. Shinseki case here.)
  3. In Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), the Federal Circuit held, for the first time, that a veteran “has a constitutional right to have his claim for veteran’s disability benefits decided according to fundamentally fair procedures.” In this case, the Federal Circuit concluded that, due to the presence of fabricated medical records in his VA claims file, Mr. Cushman’s constitutional right to have his claim for VA disability benefits decided according to fundamentally fair procedures was violated. (I previously blogged about the Cushman v. Shinseki case here.)
  4. Charles v. Shinseki, 587 F. 3d 1318 (Fed. Cir. 2009). It is settled law that a veteran’s disability claim remains pending until the claim is addressed in an VARO decision from which a claimant could deduce that the claim was adjudicated or there is an explicit adjudication of a subsequent claim for the same disability. In this case, claimant filed a claim for service-connected benefits for manic depression which the VA failed to adjudicate. He then provided additional information for his unadjudicated benefit claim and also filed a subsequent claim that was abandoned. Years later, Mr. Charles sought to reopen his initial claim. The VA held that the abandonment of the subsequent claim was dispositive. The Federal Circuit reversed, holding that abandonment of a non-final and non-appealable claim subsequently filed by the veteran cannot render final an unadjudicated earlier claim in which the agency failed to act.
  5. Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010). Julius J. Golz appealed the denial of service connection for post-traumatic stress disorder, asserting that VA failed to fulfill its duty to assist him when it failed to obtain his complete disability records from the Social Security Administration (SSA). The Federal Circuit affirmed the lower court decisions. The Court held that, as long as a reasonable possibility exists that SSA and other medical records are relevant to the veteran’s claim, the VA is required to assist the veteran in obtaining the identified records. However, Congress has placed reasonable limits on the VA’s duty to assist. In that regard, the VA is not required to obtain records from SSA or other medical providers if the agency determines, without review of the actual records, that there is no reasonable possibility that such records are relevant to the veteran’s claim for VA disability compensation. Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim. Because the SSA granted disability benefits based upon an injury other than the disability asserted in the VA claim, the lower court ruling was found to be correct because the SSA records did not relate to the injury for which the veteran was seeking VA benefits. Compare this case with the outcome in the 2009 case entitled Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). In Moore, the court held that the law requires the VA to obtain all of the veteran’s relevant service medical records. Further, the court noted that “[b]ecause many veterans lack the knowledge and resources necessary to locate relevant records, Congress has appropriately placed the burden on the VA to ensure that all relevant service medical records are obtained and fully evaluated.”
  6. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). The Court held that the VA properly refused to assign separate ratings for bipolar affective disorder and post-traumatic stress disorder (PTSD) because of the overlapping symptoms of the two disabilities. Under settled VA law, the Court declared that two defined diagnoses constitute the same disability if they have overlapping symptomology.  In this case, the two disorders claimed by the veteran had completely “overlapping symptomology” and therefore “constitue[d] the same disability for [VA] purposes.”
  7. Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010). In this case, Steven Butler served on active duty in the U.S. Navy from October 1975 to October 1978 and again from December 1978 to November 1990. He attempted to file a claim for his foot condition within one year of his discharge, which would make the effective date of the disability “the day following the date of the veteran’s discharge,” but was erroneously told by VA personnel that he could not do so. Over two years after discharge, on July 22, 1992, Mr. Butler filed a claim for disability compensation for his foot condition. The Federal Circuit affirmed the lower courts, holding that any error on the part of the VA could not toll the one-year limit. Therefore, the effective date for benefits was no earlier than the date of the claim.
  8. Munro v. Shinseki, No. 2009-7110 (Fed. Cir., Aug. 6, 2010). The question in the Munro case was whether the claims filed by the veteran in 1995 and 1997 were still pending or were deemed denied when the VA in November 1997 denied another claim for increased benefits for the same disability. Philip D. Munro served on active duty in the U.S. Navy from 1958 to 1962. During his military service, Munro experienced respiratory difficulties. In 1992, Munro filed a VA claim for service connection and compensation for “[r]espiratory difficulties.”  In 1993, the VA granted service connection, but found the condition asymptomatic with a zero percent disability rating. A year later, in 1994, Munro filed a claim for an increased rating, which the RO denied. In April 1997, a VA physician noted that Munro had “[s]evere COPD” and was “totally 100% [p]ermanently disabled.” In September 1997, Munro requested a reopening of his claim for an increased rating for his service-connected lung condition. In November 1997, the VA denied Munro’s claim for increase. In March 2003, Munro filed another claim for an increased rating for his service-connected disability. In November 2003, the VA found Munro to be totally disabled with an effective date of March 2003, the date of Munro’s most recent claim for increased rating. Munro appealed, arguing that he was entitled to an earlier effective date for the ratings increase based on what he called the “pending informal claim” raised by the April 1997 VA medical record. The Federal Circuit affirmed. The Court held that, although a claim will remain pending if the VA fails to notify a veteran of the denial of his claim, in certain circumstances “a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision” under the “implicit denial rule.” In this case, the “implicit denial rule” applies. The claims raised by the May 1995 and April 1997 medical reports and the claim filed in September 1997 were identical. As a matter of law, action by the VA in denying a claim identical to an earlier claim provides notice that the earlier claim has been denied.
  9. Colantonio v. Shinseki, No.  2009-7067 (Fed. Cir., June 1, 2010). Quareno Colantonio, served in the U.S. Army from 1942 to 1945. More than 50 years later, in June 1999, he filed a claim for compensation for a service-connected back injury. Because no medical records were available, the VA denied service connection, and refused to order a current medical examination. Upon claimant’s appeal, the Federal Circuit held medically competent evidence is not required in every case to establish service-connection sufficient to make the minimal showing of nexus required to mandate a medical examination. It may be possible to establish a nexus through lay evidence, like that provided through testimony of the claimant in this case. Accordingly, the judgment of the lower court was vacated and the case remanded.
  10. Nielson v. Shinseki, No. 2009-7129 (Fed. Cir., June 07, 2010).  Thomas M. Nielson served in the U.S. Air Force from September 1950 to September 1954, and from March 1955 to October 1957. During his service, all of Nielson’s teeth were extracted and he was provided with dentures. Records showed he suffered from a severe periodontal infection. In 1991, Nielson submitted a claim to the VA seeking service connection for the loss of his teeth as well as new dentures under what is now 38 U.S.C. § 1712(a)(1)(C) which provides veterans with outpatient dental care and related dental appliances for “service-connected dental condition[s] or disabilit[ies] due to combat wounds or other service trauma.” The VA denied Nielson outpatient dental treatment because it found that his teeth extractions were not due to “combat dental injuries” or a “service trauma.” On appeal, the Federal Circuit affirmed, holding that a “service trauma” under the statute is an injury or wound produced by an external physical force during the performance of military duties, and does not include the intended results of proper medical treatment. In this case, Nielson’s teeth were properly extracted due to periodontal infection, and the denial of dental treatment was correct.