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.
December 2011
- Dec. 29, 2011: VA issued a new interim final rule, which has been added to the Developing Sources page — Extension of Statutory Period for Compensation for Certain Disabilities Due to Undiagnosed Illnesses and Medically Unexplained Chronic Multi-Symptom Illnesses, 76 Fed. Reg. 81834 (Dec. 29, 2011). [download .pdf]
- Dec. 22, 2011: The CAVC issued an opinion in Castellano v. Shinseki regarding the retroactivity of changes to M21-1 Manual provisions governing what evidence may be considered in deciding an accrued benefits claim. [download .pdf]
- Dec. 22, 2011: The Federal Circuit issued an opinion in Patrick v. Shinseki regarding the correct legal standard in evaluating whether the government's position was substantially justified under EAJA. [download .pdf]
- Dec. 22, 2011: Video of the Dec. 13 en banc oral argument in Veterans for Common Sense has been added to the Ninth Circuit's media page.
- Dec. 20, 2011: The CAVC issued an opinion in Bove v. Shinseki regarding the status of equitable tolling in the wake of the Supreme Court's decision in Henderson v. Shinseki. [download .pdf]
- Dec. 20, 2011: New article added to the Article Index page — Michael Serota & Michelle Singer, Veterans' Benefits and Due Process, 90 Neb. L. Rev. 388 (2011). An earlier version of this paper won the 2010 PVA student writing contest.
- Dec. 20, 2011: VA released a new final rule: Schedule for Rating Disabilities; Evaluation of Amyotrophic Lateral Sclerosis, 76 Fed. Reg. 78823 (Dec. 20, 2011) [download .pdf]
- Dec. 19, 2011: The CAVC issued an opinion in Massie v. Shinseki regarding the effect of attorney representation at the BVA level on issue exhaustion and regarding when a letter from a VA doctor in support of a Social Security disability claim can also constitute a claim for VA benefits. [download .pdf]
- Dec. 19, 2011: A transcript of the CAVC's Eleventh Judicial Conference has been published in the bound 24th volume of the Veterans Reporter. An index of the sessions has been added to the CAVC Judicial Conference Index page.
- Dec. 14, 2011: Audio of yesterday's argument in Veterans for Common Sense v. Shinseki is now available from the Ninth Circuit's media page.
- Dec. 13, 2011: An en banc panel of the Ninth Circuit heard oral argument on reconsideration of Veterans for Common Sense v. Shinseki. The now vacated panel decision had held that portions of VA's health and benefits system violate due process due to the delays involved. Audio — and possibly video — of the oral argument should be posted on the Ninth Circuit's media page by tomorrow afternoon. The government's petition for rehearing is available here.
- Dec. 11, 2011: The Senate hearing for the three nominees to the vacancies on the CAVC scheduled for Dec. 14 has been cancelled. No new date has been announced.
- Dec. 8, 2011: The Fedearl Circuit heard oral argument in Murton v. Shinseki regarding whether an intervening Board decision can bring finality to a pending claim in the absence of a proper Statement of the Case. [listen here]
- Dec. 8, 2011: The CAVC heard oral argument in Johnson v. Shinseki regarding the relationship between a TDIU rating and a request for extraschedular rating. [listen here].
- Dec. 7, 2011: The Federal Circuit heard oral argument in Jones v. Shinseki regarding the requirements before VA can deem a claimed abandoned due to failure to respond to a request for additional evidence. [listen here]
- Dec. 7, 2011: The CAVC heard oral argument in Young v. Shinseki regarding whether the court has jurisdiction to review the Board's decision to refer, rather than remand, an issue to a regional office. [listen here]
- Dec. 6, 2011: The Senate Veterans Affairs Committee announced that it will hold a hearing on the three nominees for the vacancies on the CAVC on Wednesday, December 14. Live video should be available on the Senate website: http://veterans.senate.gov/
November 2011
- Nov. 18, 2011: The CAVC issued an opinion in McNair v. Shinseki regarding the relevance of a generic consent form in an section 1151 claim based upon the consequences of a VA surgery. [download .pdf]
- Nov. 17, 2011: The Ninth Circuit has granted en banc reconsideration of the decision in Veterans for Commons Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011), which declared portions of the VA's health and adjudication systems violate due process. The order indicated that oral argument would be scheduled the week of December 12th.
- Nov. 14, 2011: Audio is now available for Sellers (11/10) and Perez (11/9).Nov. 10, 2011: The Federal Circuit heard oral argument in Hampton v. Shinseki regarding the situations in which additional evidence submitted within a year of a decision can result in an earlier effective date. [listen here]
- Nov. 10, 2011: The CAVC heard oral argument in Sellers v. Shinseki regarding VA's program for reviewing extraordinary awards. [listen here]
- Nov. 9, 2011: The Federal Circuit heard oral argument in Akers v. Shinseki regarding the need to submit evidence with a claim to reopen. [listen here]
- Nov. 9, 2011: The CAVC heard oral argument in Perez v. Shinseki regarding the validity of VA's regulations on changing representation. [listen here]
- Nov. 8, 2011: The Federal Circuit heard oral argument in Byron v. Shinseki regarding the power of the CAVC to reverse a Board decision and award benefits based upon a theory where the relevant factual determinations were never made by the Board [listen here], Sharp v. Shinseki regarding the availability of EAJA fees where the Court applies an analysis other than that argued by the Secretary [listen here], and Marshall v. Shinseki regarding the proper weight to be given to GAF scores provided by VA treating physicians in rating a mental disability [listen here].
- Nov. 7, 2011: The Federal Circuit heard oral argument in West v. Shinseki, regarding the possibility of an earlier effective date where the veteran was prohibited from discussing the relevant in-service event due to national security concerns, [listen here], Hamer v. Shinseki, regarding the lawfulness of awarding a staged rating after an improper severance determination is revised on the basis of CUE, [listen here] and Guillory v. Shinseki regarding eligibility for certain types of special monthly compensation [listen here].
- Nov. 2, 2011: New article added to the Article Index page — Linda D. Jellum, Heads I Win, Tails You Lose: Reconciling Brown v. Gardner's Presumption That Interpretive Doubt Be Resolved In Veterans' Favor With Chevron, 61 Am. U. L. Rev. 59 (2011).
October 2011
- Oct. 28, 2011: The CAVC issued a decision in Mason v. Shinseki regarding the time limits on entering into a valid fee agreement. [download .pdf]
- Oct. 26, 2011: The CAVC heard oral argument in Burden v. Shinseki regarding whether a marriage determination applying state law uses the state's applic able burden of proof. Argument was held at University of Detroit - Mercy School of Law. *updated* [listen here]
- Oct. 12, 2011: The Independent Budget group has released its Critical Issues report for FY2013. Download a copy from the Secondary Sources page.
- Oct. 12, 2011: The Federal Circuit has posted the argument from last week's argument in Oregon in Chandler v. Shinseki regarding age as a qualifying factor for special monthly compensation. [listen here]
- Oct. 7, 2011: The Federal Circuit issued an opinion in Bond v. Shinseki regarding the effect of submitting new evidence before the time to appeal an RO decision expires. [download .pdf]
- Oct. 5, 2011: The National Academies Press has released a prepublication version of Veterans and Agent Orange: Update 2010. [free .pdf download from their website].
- Oct. 4, 2011: The Federal Circuit heard oral argument in Patrick v. Shinseki regarding how to consider the BVA decision in determining whether the Secretary's position was substantially justified under EAJA. [listen here]. The Federal Circuit also heard oral argument in Chandler v. Shinseki in a special session in Oregon. Audio will be posted when it becomes available.
- Oct. 3, 2011: The Supreme Court issued an order in Tyrues v. Shinseki: "The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Federal Circuit for further consideration in light of Henderson v. Shinseki, 562 U.S. ____ (2011)." The Federal Circuit's decision (631 F.3d 1380 (2011)) had affirmed a divided en banc decision of the CAVC (23 Vet. App. 166 (2009)).
September 2011
- Sept. 30, 2011: The GAO released a new report — Veterans Disability Benefits: Clearer Information for Veterans and Additional Performance Measures Could Improve Appeal Process No. GAO-11-812 (September 29, 2011). Download a copy from the GAO Reports page.
- Sept. 28, 2011: The CAVC heard oral argument in Quattlebaum v. Shinseki regarding whether a previously denied accrued benefits claim can be reopened more than a year after the veteran's death. [listen here]
- Sept. 24, 2011: New article added to the Article Index page — Stacy L.Z. Edwards, Note, The Department of Veterans Affairs' Entitlement Complex: Attorney Fees and Administrative Offset after Astrue v. Ratliff, 63 Admin. L. Rev. 561 (2011).
- Sept. 19, 2011: The CAVC issued an opinion in Breniser v. Shinseki regarding the availability of special monthly compensation based upon the need for aid and attendance. [download .pdf]
- Sept. 13, 2011: The CAVC heard oral argument in Massie v. Shinseki regarding when a letter from a VA doctor to the Social Security Administration can be considered and informal claim for a rating increase. [listen here]
- Sept. 9, 2011: The Federal Circuit heard oral argument in Woo v. Shinseki regarding the rating requirements for diabetes. [listen here]
- Sept. 9, 2011: VA has posted online a list of U.S. Navy and Coast Guard ships operating on the waters of Vietnam between January 9, 1962, and May 7, 1975, associated with presumptive Agent Orange exposure. [link to the general page] [link to the alphabetized ship list]
August 2011
- Aug. 25, 2011: The CAVC heard oral argument in Mason v. Shinseki regarding the timeliness of a fee agreement for attorney representation before the BVA. [listen here]
- Aug. 24, 2011: The CAVC issued a decision in DeLisio v. Shinseki regarding the circumstances in which a claim for a secondary condition can raise a claim for a primary condition. [download .pdf]
- Aug. 23, 2011: The VA issued a new final rule to abrogate the CAVC's holding in Bryant v. Shinseki — Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans' Appeals; Clarification, 76 Fed. Reg. 52572. Download the .pdf from the Developing Sources page.
- Aug. 23, 2011: New article added to the Article Index page — Ben Kappelman, Note, When Rape Isn't Like Combat: The Disparity Between Benefits for Post-Traumatic Stress Disorder for Combat Veterans and Benefits for Victims of Military Sexual Assault, 44 Suffolk U. L. Rev. 545 (2011).
- Aug. 23, 2011: The CAVC issued a decision in Mitchell v. Shinseki regarding disability ratings based upon pain. [download .pdf]
- Aug. 19, 2011: The Federal Circuit issued an opinion in Rivera v. Shinseki regarding the Substantive Appeal requirement. [download .pdf]
- Aug. 11, 2011: The CAVC issued an opinion in Russell v. Shinseki regarding the enforceability of the terms of a joint motion for remand. [download .pdf]
- Aug. 8, 2011: The Federal Circuit issued opinions in Singleton v. Shinseki regarding the validity of declining staged ratings [download .pdf] and Smith v. Shinseki regarding the need for VA to obtain a vocational specialist's opinion before deciding a claim for TDIU [download .pdf]
- Aug. 5, 2011: The Federal Circuit heard oral argument in National Organization of Veterans Advocates v. VA regarding the validity of the provision in the new PTSD regulation that requires a diagnosis be by a VA physician to be accepted without corroboration. [listen here]
- Aug. 4, 2011: The CAVC issued an opinion Burton v. Shinseki regarding rating pain under 38 C.F.R. § 4.59 [download .pdf] and an opinion on reconsideration in Evans v. Shinseki regarding when the requirement to include an argument in a Substantive Appeal has been waived [download .pdf].
- Aug. 4, 2011: The Federal Circuit heard oral argument in Hime v. Shinseki, regarding the duty to obtain medical records is triggered [listen here], and in Hill v. Shinseki, [listen here], and Ayers v. Shinseki, [listen here] both regarding when a medical opinion saying a medical opinion stating that a nexus would be speculative is adequate.
- Aug. 3, 2011: The Federal Circuit heard oral argument in Young v. Shinseki, regarding regarding VA's obligation to provide notice before refusing to remedy an inadequate examination [listen here], and in Cullen v. Shinseki regarding the possibility of being awarded two ratings under the same diagnostic code [listen here].
- Aug. 1, 2011: The Federal Circuit heard oral argument in Cardwell v. Shinseki regarding the status of an issue that was withdrawn by a veteran but later reasserted before the claim became final. [listen here]
July 2011
- Jul. 27, 2011: The Senate held a hearing — Examining the Lifetime Costs of Supporting the Newest Generation of Veterans. [link to the Senate page for hearing]
- Jul. 27, 2011: New article added to the Article Index page — Bryan A. Liang & Mark S. Boyd, PTSD in Returning Wounded Warriors: Ensuring Medically Appropriate Evaluation And Legal Representation Through Legislative Reform, 22 Stan. L. & Pol'y Rev. 177 (2011)
- Jul. 19, 2011: VA announced the withdrawal of a previously proposed rule — Claim-Related Documents or Supporting Evidence Not of Record, 76 Fed. Reg. 42007 (Jul. 18, 2011). Download a copy from the Developing Sources Page.
- Jul. 15, 2011: New final rule announced — Presumptive Service Connection for Diseases Associated With Service in the Southwest Asia Theater of Operations During the Persian Gulf War: Functional Gastrointestinal Disorders, 76 Fed. Reg. 41696 (Jul. 15, 2011). Download a copy from the Developing Sources Page.
- Jul. 14, 2011: The Senate held a hearing — VA Mental Health Care: Closing the Gaps. [link to Senate page for hearing]
- Jul. 7, 2011: The Federal Circuit heard oral argument in Howlett v. Shinseki regarding the relevance of a Board credibility finding. [listen here]
- Jul. 6, 2011: The Federal Circuit heard oral argument in Githens v. Shinseki regarding distinguishing between service-connected and non-service-connected conditions in a claim for TDIU. [listen here]