SERVICE ADVISORY — Links in the archive are not maintained. In particular, the Federal Circuit debuted a completely overhauled website on July 16, 2010. As a result, older links to opinions and arguments may not work or may no longer link directly to the object. However, if a link here is not working properly, the search tools at the new Federal Circuit website should help you quickly locate what you are looking for.
June 2011
- Jun. 30, 2011: The Federal Circuit issued a decision in Padgett v. Shinseki regarding the ability of a surviving spouse to collect EAJA fees after prevailing in a case where the spouse was substituted after the veteran's death. [download .pdf]
- Jun. 30, 2011: The CAVC issued a decision in Shipley v. Shinseki regarding the effect of a purported NOD as to a deferred rating decision and regarding an effective date based upon previously unobtained service records. [download .pdf]
- Jun. 30, 2011: The CAVC heard oral argument in Brady v. Shinseki regarding the Board's ability to ignore portions of a Joint Motion for Remand based upon its independent evaluation of caselaw. [listen here]
- Jun. 28, 2011: The CAVC heard oral argument in Castellano v. Shinseki regarding when a medical opinion can be considered in the veterans file at the time of his death for purposes of an accrued benefits claim. [listen here]
- Jun. 22, 2011: President Obama announced his intention to nominate Meg Bartley and Gloria Wilson Shelton to fill two of the three vacancies on the CAVC. [link to White House press release]
- Jun. 22, 2011: The Federal Circuit issued a decision in Read v. Shinseki regarding VA's ability to change the diagnostic code applied to a protected disability rating. [download .pdf]
- Jun. 21, 2011: The CAVC issued a decision in Mountford v. Shinseki regarding VA's ability to recoup benefits paid to fugitive felons. [download .pdf]
- Jun. 15, 2011: The CAVC issued decision in Kahana v. Shinseki regarding Board's ability to make determinations that require medical expertise [download .pdf] and in Murray v. Shinseki regarding VA's ability to change the diagnostic code applied to a protected disability rating [download .pdf]
- Jun. 15, 2011: The CAVC heard oral argument in Mitchell v. Shinseki regarding the proper way to account for pain when determining a disability rating. [listen here]
- Jun. 14, 2011: The CAVC heard oral argument in Breniser v. Shinseki regarding eligibility for additional Special Monthly Compensation based upon multiple qualifying conditions. [listen here]
- Jun. 9, 2011: New article added to the Article Index page — Linda D. Jellum, The Art of Statutory Interpretation: Identifying the Interpretive Theory of the Judges of the United States Court of Appeals for Veterans' Claims and the United States Court of Appeals for the Federal Circuit, 49 U. Louisville L. Rev. 59 (2010)
- Jun. 9, 2011: The Federal Circuit heard oral argument in Wible v. Shinseki regarding the situations in which newly received service records can allow a reopened claim to relate back to an original claim [listen here], and Webster v. Shinseki regarding evidentiary value of medical treatise evidence [listen here].
- Jun. 8, 2011: The Federal Circuit heard oral argument in Rivera v. Shinseki, regarding the requirements for a Substantive Appeal [listen here] and in King v. Shinseki, regarding when a notation in a VA medical record can be considered an informal claim [listen here].
- Jun. 2, 2011: The House Veterans Affairs Subcommittee for Disability Assistance and Memorial Affairs held a hearing — An Examination of Poorly Performing U.S. Department of Veterans Affairs Regional Offices. [link to House page for the hearing]
- Jun. 1, 2011: The Federal Circuit issued an opinion in Roberts v. Shinseki affirming a divided en banc decision by the CAVC regarding the severance of benefits based upon fraud. It is Judge O'Malley's first published veterans law opinion since her appointment. [download .pdf]
May 2011
- May 25, 2011: The CAVC heard oral argument in McNair v. Shinseki regarding the evidence necessary to show that a veteran was provided informed consent prior to a procedure at a VA hospital. Audio will be added when available.
- May 25, 2011: New article added to the Article Index page — Paul R. Gugliuzza, Veterans Benefits in 2010: A New Dialogue Between the Supreme Court and the Federal Circuit, 60 Am. U. L. Rev. 1201 (2011)
- May 24, 2011: The National Academies Press announced the release of its new book — Blue Water Navy Vietnam Veterans and Agent Orange Exposure (2011). [download .pdf from NAS website]
- May 19, 2011: New VA Office of Inspector General Report added to the Oversight Sources — Systemic Issues Reported During Inspections at VA Regional Offices, Report Number 11-00510-167, May 18, 2011 [download .pdf]
- May 11, 2011: The 9th Circuit issued a 140-page opinion in Veterans for Common Sense, which held that VA's systems for handling the mental health needs of veterans with PTSD and for processing appeals of regional office decisions on benefits claims. The opinion indicated that the district court may need to take over VA operations to remedy the violations. [download .pdf]
- May 10, 2011: The CAVC heard oral argument in DeLisio v. Shinseki regarding whether the effective date for a secondary condition can predate the regulation creating the presumption that was the basis of granting the service connection for the primary condition. [listen here]
- May 6, 2011: New article added to the Article Index page — Alexandra S. Haar, Note, Sweet Dreams Aren't Made Of These: How The Va's Disability Compensation Program Leaves Veterans Alone In The Nightmare Of Posttraumatic Stress Disorder, 88 Wash. U. L. Rev. 969 (2011)
- May 6, 2011: The Federal Circuit issued an opinion in Sickels v. Shinseki regarding the presumption of regularity in requests for medical opinions. [download .pdf]
- May 5, 2011: VA issued a new interim final rule to implement title I of the Caregivers and Veterans Omnibus Health Services Act of 2010 — Caregivers Program, 76 Fed. Reg. 26148 (May 5, 2011) [download .pdf].
- May 5, 2011: The Federal Circuit heard oral argument in Smith v. Shinseki regarding the need for vocational expert evidence to adjudicate a TDIU claim [listen here] and Bousquet v. Shinseki regarding the burden of proof to show bad faith in a home loan waiver request [listen here]
- May 4, 2011: The Federal Circuit heard oral argument in Singleton v. Shinseki regarding the requirements of due process when the grant of a staged rating includes a reduction from the highest stage granted. [listen here]
April 2011
- Apr. 29, 2011: The Federal Circuit issued opinions in Wagner v. Shinseki regarding EAJA fees-for-fees litigation [download .pdf] and Guerra v. Shinseki regarding eligibility for special monthly compensation [download .pdf].
- Apr. 28, 2011: VA's Office of the General Counsel has issued a new precedent opinion — Veterans' Health Administration Quality-Assurance Records and Board of Veterans' Appeal Review Authority – 38 U.S.C. § 5705; 38 C.F.R. &#sect;§ 17.500-17.511 (4/19/2011) [download .pdf]
- Apr. 28, 2011: The CAVC heard oral argument in Murray v. Shinseki regarding the Secretary's ability to modify a disability rating protected due to longevity. Audio will be linked once it has been made available.
- Apr. 26, 2011: The CAVC granted a writ of mandamus in Freeman v. Shinseki and held that the BVA and the Court have jurisdiction to review VA's choice of a fiduciary for a veteran. [download .pdf]
- Apr. 25, 2011: New notice added to the Gulf War Illnesses page — Determinations Concerning Illnesses Discussed In National Academy of Sciences Reports on Gulf War and Health, Volumes 4 and 8, 76 Fed. Reg. 21099 (Apr. 14, 2011).
- Apr. 22, 2011: The CAVC issued an opinion in Parrish v. Shinseki regarding the Under Secretary for Benefits's ability to delegate authority. [download .pdf]
- Apr. 21, 2011: The Federal Circuit issued an opinion in Menegassi v. Shinseki regarding the proof needed to corroborate a claim for PTSD based upon an in-service sexual assault. [download .pdf]
- Apr. 20, 2011: The CAVC issued an opinion in Arneson v. Shinseki regarding the right to a hearing in a case decided by a panel of three Board members. [download .pdf]
- Apr. 14, 2011: New final rule added to the Developing Sources page — Board of Veterans' Appeals: Remand or Referral for Further Action; Notification of Evidence Secured by the Board and Opportunity for Response, 76 Fed. Reg. 17544 (Mar.30, 2011).
- Apr. 14, 2011: H.R.1484 ("Veterans Appeals Improvement Act of 2011"), which would change the BVA's ability to consider new evidence and create a commission to review the process of reviewing benefit claims, added to the Developing Sources page.
- Apr. 14, 2011: New proposed rule added to the Developing Sources page — Substitution in Case of Death of Claimant, 76 Fed. Reg. 8666 (Feb. 15, 2011)
- Apr. 14, 2011: The Federal Circuit issued an opinion in Block v. VA declining to review VA rules on Agent Orange cases that were promulgated and rescinded prior to the VJRA. [download .pdf]
- Apr. 13, 2011: The Federal Circuit issued an unpublished order returning Henderson v. Shinseki to the CAVC for further proceedings consistent with the Supreme Court's decsion. [download .pdf]
- Apr. 11, 2011: The CAVC issued a decision in Henio v. Shinseki regarding the calculation of copayments for prescription drugs provided by VA. [download .pdf]
- Apr. 7, 2011: The Federal Circuit heard oral argument in Bond v. Shinseki regarding the evaluation of new evidence submitted within one year of a prior decision [listen here], Lewis v. Shinseki regarding the scope of the CAVC's authority in reviewing Board decisions [listen here], and Chotta v. Shinseki regarding the Secretary's defense of substantial justification in an EAJA petition [listen here].
- Apr. 6, 2011: The Federal Circuit issued an opinion in Avgoustis v. Shinseki regarding the level of detail that may be required in an EAJA fee petition. [download .pdf]
- Apr. 5, 2011: The Federal Circuit heard oral argument in Padgett v. Shinseki regarding the availability of EAJA fees in a case where substitution was granted after the veteran's death. [listen here]
March 2011
- Mar. 31, 2011: New Article added to the Article Index page — Lindsay I. McCarl, Note, The Case for Concurrent Veterans Benefits: Duplicative but not Duplicitous, 20 Fed. Cir. B.J. 409 (2011).
- Mar. 30, 2011: The CAVC heard oral argument at the Mississippi College School of Law in Mountford v. Shinseki regarding the suspension of benefits while a veteran has an outstanding felony arrest warrant. [listen here]
- Mar. 29, 2011: The CAVC issued an opinion in Hillyard v. Shinseki regarding the ability to raise a second CUE challenge to a Board decision. [download .pdf]
- Mar. 23, 2011: The CAVC issued an opinion in Buie v. Shinseki regarding eligibility for special monthly compensation under 38 U.S.C. § 1114(s). [download .pdf]
- Mar. 11, 2011: The CAVC issued an opinion in Frederick v. Shinseki regarding the restoration of DIC benefits under Public Law 108-183. [download .pdf]
- Mar. 10, 2011: The CAVC issued an opinion in Bartlett v. Shinseki regarding the availability of section 1151 benefits in a situation where VA failed to protect a patient in a secure psychiatric facility. [download .pdf]
- Mar. 9, 2011: The CAVC issued an opinion in Ervin v. Shinseki regarding the retroactive application of a recent PTSD regulation. [download .pdf]
- Mar. 9, 2011: The Federal Circuit heard oral argument in Sickles v. Shinseki regarding the BVA's duty to sua sponte address issues raised by a medical opinion. [listen here]
- Mar. 8, 2011: The Federal Circuit heard oral argument in Roberts v. Shinseki regarding the procedures for terminating disability compensation due to fraud [listen here] and in Wagner v. Shinseki regarding an EAJA petition seeking fees for fees [listen here].
- Mar. 7, 2011: The Federal Circuit heard oral argument in Avgoustis v. Shinseki regarding the amount of specificity that may be required in an EAJA application [listen here], Andre v. Shinseki regarding the presumption of sound condition related to mental disorders in a CUE context [listen here], and Read v. Shinseki regarding VA's ability to reclassify a protected disability [listen here].
- Mar. 1, 2011: The Supreme Court issued an opinion in Henderson v. Shinseki, which reversed the Federal Circuit and held that the time period for appealing to the CAVC is not a jurisdictional limitation. [download .pdf]
February 2011
- Feb 24, 2011: The Chairman of the BVA released his annual report to Congress for FY2010. Download a copy from the annual reports page.
- Feb. 23, 2011: The CAVC heard oral argument in Freeman v. Shinseki regarding the jurisdiction of the BVA and CAVC to review VA's choice of a fiduciary to manage the benefits of a claimant who has been declared incompetent. [listen here].
- Feb. 16, 2011: The Independent Budget for FY2012 has been released. Download a copy from the Secondary Sources page. Feb 16, 2011: The latest volume of the Veterans Law Review is now available online. The following articles have been added to the Article Index page:
- Michael P. Allen, The Law of Veteran's Benefits 2008-2010: Significant Developments, Trends, and A Glimpse into the Future, 3 Veterans L. Rev. 1 (2011) [download .pdf]
- Linda D. Jellum, The United States Court of Appeals for Veterans Claims: Has It Mastered Chevron's Step Zero, 3 Veterans L. Rev. 67 (2011) [download .pdf]
- James D. Ridgway, The Splendid Isolation Revisited: Lessons from the History of Veterans' Benefits Before Judicial Review, 3 Veterans L. Rev. 135 (2011) [download .pdf]
- Emily Woodward Deutsch & Robert James Burriesci, Due Process in the Wake of Cushman v. Shinseki: The Inconsistency of Extending a Constitutionally Protected Property Interest to Applicants for Veterans' Benefits, 3 Veterans L. Rev. 220 (2011) [download .pdf]
- Lee Will Berry IV, Note, Standards of the Standards of Review, 3 Veterans L. Rev. 263 (2011) [download .pdf]
- Terrance T. Griffin & Thomas D. Jones, Note, The Veterans Claims Assistance Act of 2000: Ten Years Later, 3 Veterans L. Rev. 284 (2011) [download .pdf]
- Feb. 16, 2011: New Article added to the Article Index page — Craig M. Kabatchnick, Obstacles Faced by the Elderly Veteran in the VA Claims Adjudication Process, 12 Marquette Elder's Advisor L.J. 185 (2011)
- Feb. 11, 2011: The CAVC issued a decision in Locklear v. Shinseki regarding the application of the implicit denial rule to a bifurcated TDIU rating. [download .pdf]
- Feb. 11, 2011: The Federal Circuit issued a decision in Tyrues v. Shinseki regarding the CAVC's jurisdiction over bifurcated claims. [download .pdf]
- Feb. 8, 2011: The Federal Circuit heard oral argument in Elliot v. Shinseki regarding the adequacy of medical examinations [listen here] and Block v. Shinseki regarding validity of the Agent Orange Program Guide [listen here].
- Feb. 7, 2011: The Federal Circuit heard oral argument in Menegassi v. Shinseki regarding the requirement to verify the stressor in a PTSD claim. [listen here]
- Feb.4, 2011: New VA Office of Inspector General report added — Audit of VBA's 100 Percent Disability Evaluations, Report Number 09-03359-71, Jan. 24, 2011. Download a copy from the VAOIG Reports page.
January 2011
- Jan. 28, 2011: The CAVC issued an opinion in Evans v. Shinseki regarding the requirements to file a Substantive Appeal and to withdraw an appeal at the Board level. [download .pdf]
- Jan. 27, 2011: The CAVC heard oral argument in Parrish v. Shinseki regarding the ability of VA officials to further delegate functions delegated to them. [listen here].
- Jan. 26, 2011: VA issued a new final regulation — Herbicide Exposure and Veterans With Covered Service in Korea, 76 Fed. Reg. 4245. Download a copy from the Developing Sources page.
- Jan 25, 2011: The CAVC issued a decision in Harvey v. Shinseki sanctioning the Secretary for mishandling a case remanded by the Court. [download .pdf]
- Jan. 25, 2011: The CAVC heard oral argument in Arneson v. Shinseki regarding the hearing requirements in BVA cases decided by a panel of Board members. [listen here]
- Jan. 18, 2011: The CAVC issued an opinion in Mayhue v. Shinseki regarding the effective date for reopened claims granted based upon new service department records [download .pdf] and in Kyhn v. Shinseki regarding the presumption of regularity and notices of scheduled examinations [download .pdf].
- Jan. 16, 2011: New report added to the VA Office of Inspector General Reports page: Review of Combat Stress in Women Veterans Receiving VA Health Care and Disability Benefits, Report Number 10-01640-45, Dec. 16, 2010.
- Jan 12. 2011: The Federal Circuit heard oral argument in O'Brien v. Shinseki regarding the CAVC's ability to determine that a duty to assist error was not prejudicial. [listen here].
- Jan. 12, 2011: The CAVC heard oral argument in Figueroa-Burgos v. Shinseki regarding when remand may not be an appropriate remedy. [listen here]
- Jan. 11, 2011: The Federal Circuit heard oral argument in Guerra v. Shinseki regarding the criteria to have a 100% disability rating to qualify for special monthly compensation. [listen here]
- Jan. 10, 2011: The Federal Circuit heard oral argument in McBurney v. Shinseki regarding the criteria for prisoner of war status. [listen here]
- Jan. 6, 2011: The CAVC issued an opinion in Buczynski v. Shinseki regarding the relative responsibilities of VA adjudicators and medical examiners. [download .pdf]
- Jan. 6, 2011: The Federal Circuit issued an opinion in Hargrove v. Shinseki regarding the proper time to appeal a rating reduction decision by a regional office. [download .pdf]
- Jan. 4, 2011: The CAVC issued a new opinion on reconsideration in Savage v. Shinseki regarding VA's duty to clarify an ambiguous private medical record. [download .pdf] See Nov. 3, 2010 for the original decision.