NVLMCC

Robert L. Wilkie,
Secretary of Veterans Affairs, Petitioner,
v.
Ryan Jackson,
Respondent.

A veteran who “served in the Republic of Vietnam” during the period from January 9, 1962, to May 7, 1975, when the United States used the herbicide known as “Agent Orange” there, is considered presumptively exposed to that herbicide and is entitled to disability benefits if he or she later develops certain specified diseases even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), sitting en banc, concluded that service “in the Republic of Vietnam” for purposes of 38 U.S.C. § 1116(a)(1)(A) unambiguously includes service “in the 12 nautical mile territorial sea” of that country. 913 F.3d 1371, 1380-81 (2019).

However, the presumption of herbicide exposure may be rebutted by “affirmative evidence to establish that the veteran was not exposed to any such agent.” 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Neither the statute nor the implementing regulation defines “affirmative evidence.”

Veteran Ryan Jackson served in the U.S. Navy from April 1972 to July 1974, including a tour aboard a nuclear missile submarine that briefly entered within 12 nautical miles of the Vietnam coast in March 1974. After service, he was diagnosed with prostate cancer and filed a claim for service connection for that condition, arguing that it was caused by exposure to Agent Orange in March 1974, either through contaminated drinking water or during an incident in which a nuclear missile-arming malfunction caused a compartment to flood with contaminated seawater.

Relevant to the exposure issue, the record contains (1) a National Personnel Records Center response stating that Mr. Jackson did not set foot in the Republic of Vietnam; (2) a Joint Services Records Research Center (JSRRC) response acknowledging that most of the submarine’s mission records were classified but nonetheless stating that it was highly unlikely, given the submarine’s class and technical specifications, that chemicals from seawater would have contaminated the drinking water, or that a compartment would have flooded in the manner described, or that the submarine would have armed a nuclear warhead; (3) a “buddy statement” from a fellow submariner corroborating the described events; (4) an internet article purportedly shedding light on a narrowly- averted nuclear crisis in March 1974; and (5) a Board of Veterans’ Appeals (Board) hearing transcript reflecting that the presiding Veterans Law Judge (VLJ) believed the veteran’s testimony about exposure.

A different VLJ, however, authored the Board decision denying service connection for prostate cancer, finding that same Board hearing testimony not credible. The VLJ determined that the presumption of exposure to herbicides within 12 nautical miles of the Vietnam coast was rebutted by “affirmative evidence” of no exposure, namely the JSRRC response. In reaching this conclusion, the VLJ used an interpretation of “affirmative evidence” described in a recent VA training letter, which defined the term as “any evidence of a nature usually accepted as competent to indicate no exposure to herbicides.” The training letter also interpreted the term as not requiring a conclusive showing, “but only such showing as would, in sound scientific and technical reasoning and in the consideration of all evidence of record, support a conclusion that the veteran was not exposed to herbicides in service.”

On appeal, the U.S. Court of Appeals for Veterans Claims affirmed the Board’s decision, affording Skidmore deference to VA’s interpretation of “affirmative evidence” as used in 38 U.S.C. § 1116 and rejecting the veteran’s argument that his Constitutional Due Process rights were violated when a VLJ who did not participate in the hearing decided the appeal. The Federal Circuit reversed, concluding that Skidmore deference was not appropriate; that “affirmative evidence” as used in section 1116 meant evidence that conclusively and indisputably established a lack of exposure; and that having different VLJs conduct the Board hearing and decide the appeal violated the veteran’s Due Process rights.

The Supreme Court granted certiorari on the following two questions:

1. Assuming that the language in section 1116 is ambiguous, is VA’s interpretation of “affirmative evidence” in that statute, as stated in its training letter, entitled to Skidmore deference? If not, what definition should the Court adopt?
2. Was there a Constitutional Due Process violation where one VLJ presided over the veteran’s hearing and found him credible and a different VLJ adjudicated his appeal and denied the claim based on a lack of credibility?

Robert L. Wilkie,
Secretary of Veterans Affairs, Petitioner,

v.

Alexandra Hamilton,
Respondent.

Veteran Alexandra Hamilton served in the U.S. Coast Guard from March 5, 1974, to September 17, 1979, with additional prior service in the U.S. Coast Guard Women’s Reserve. In 2013, Ms. Hamilton fell victim to several instances of telephone fraud. As a result, her daughter, Eliza Hamilton Holly, filed a petition in Florida state court seeking a determination of limited incapacity of Alexandra Hamilton, as well as a petition seeking to have herself appointed as Ms. Hamilton’s guardian. The Florida court appointed a committee to investigate Ms. Hamilton’s competency, and the committee recommended that a guardian be appointed to handle Ms. Hamilton’s finances and medical decision-making. On December 12, 2013, the Florida court granted both petitions, declaring Ms. Hamilton to be incompetent for financial and medical decision-making and appointing Ms. Holly as her guardian.

Because Ms. Hamilton was receiving VA benefits, the Florida court notified VA of its incompetency finding, and VA issued a decision on February 2014 declaring her incompetent for VA benefits purposes. The next month, the Columbia, South Carolina, VA Fiduciary Hub informed Ms. Hamilton that it had appointed Erin Burr as her federal fiduciary. The Hub explained that it could not appoint Ms. Holly as Ms. Hamilton’s fiduciary, because Ms. Holly had filed for bankruptcy in March 2010. Ms. Hamilton filed a Notice of Disagreement on April 16, 2014.

In her Notice of Disagreement, Ms. Hamilton argued that VA’s incompetency determination had unconstitutionally deprived her of the right to purchase and possess firearms. She also contested the appointment of Erin Burr as her federal fiduciary, arguing that her daughter Eliza should be recognized instead. She subsequently submitted several additional statements, including a statement from Ms. Holly explaining the circumstances of a bankruptcy and a letter from a gun shop owner supporting her right to purchase firearms. VA issued a Statement of the Case continuing its earlier determinations on February 11, 2015, and on March 11, 2015, Ms. Hamilton perfected her appeal to the Board.

On July 25, 2016, the Board issued a decision upholding the Fiduciary Hub’s determinations. The Board found that Ms. Hamilton had limited her argument with respect to VA’s incompetency determination to a single question: whether VA’s incompetency determination impermissibly deprived her of her Second Amendment rights. It found that it was without jurisdiction to address the Constitutional question, and it denied Ms. Hamilton’s challenge to VA’s incompetency determination. With respect to the appointment of Erin Burr as Ms. Hamilton’s VA fiduciary, the Board considered Florida’s appointment of Eliza Hamilton Holly as Ms. Hamilton’s guardian but concluded that Erin Burr was the more appropriate federal fiduciary.

On appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”), Ms. Hamilton argued that VA’s policy of notifying the FBI of all veterans declared incompetent impermissibly deprived her of her Second Amendment right to bear arms. She also argued that VA erred by not adopting Florida’s appointment of Eliza as her guardian. The Secretary responded that VA’s policy of notifying the FBI of incompetency determinations was not unconstitutional, as it was substantially related to an important governmental objective: keeping firearms out of the hands of mentally incompetent individuals.

The CAVC affirmed the Board’s decision. It held that VA’s policy of reporting incompetent veterans to the FBI was subject to intermediate scrutiny but that the policy survived that review. It also held that VA was not bound by the Florida guardianship appointment and had acted within the scope of its authority by appointing Erin Burr as Ms. Hamilton’s fiduciary. One judge concurred in part and dissenting in part, expressing concerns as to the constitutionality of VA’s reporting policy.

Ms. Hamilton appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”). The Federal Circuit reversed the CAVC decision, holding both that the CAVC erred by not applying a strict scrutiny standard to VA’s reporting policy and that VA was bound by Florida’s guardianship determination. One judge dissented, arguing that it was not clear that Ms. Hamilton was protected under the traditional meaning of the Second Amendment and that the Federal government had an interest in regulating fiduciaries.

The Secretary filed a petition for a writ of certiorari to the U.S. Supreme Court, which granted certiorari on the following two questions:

1. Does the U.S. Department of Veterans Affairs’ practice of listing veterans deemed incompetent in the National Instant Criminal Background Check System database violate those veterans’ Second Amendment rights?
2. When a state court has determined that a veteran is incompetent and has appointed a guardian to manage that veteran’s finances, is the U.S. Department of Veterans Affairs obligated to adopt the state court’s guardianship appointment?

David J. Shulkin, M.D.,
Secretary of Veterans Affairs, Petitioner,

v.

Terence J. Kong,
Respondent.

Veteran Terence J. Kong served in the U.S. Army Air Forces from July 1943 to July 1946, including service in the Pacific Theater during and after World War II as a B-29 tail gunner. In August 1954, he filed a claim for entitlement to service connection for a left ankle disability and submitted statements from several people regarding an incident in 1946 when he twisted his ankle after his B-29 had to make an emergency landing for repairs. In 1955, the VA regional office (“RO”) awarded service connection for left ankle disability.

In February 2012, Mr. Kong was diagnosed with thyroid cancer. He submitted a claim for entitlement to service connection for thyroid cancer in March 2012, asserting that he may have been exposed to ionizing radiation from Hiroshima during the 1946 incident when he twisted his ankle. VA requested a radiation dose estimate from the Defenses Threat Reduction Agency, which responded that it found no evidence of radiation exposure. In addition, Mr. Kong underwent a VA compensation and pension examination in August 2012; the examiner stated that, although Mr. Kong’s thyroid cancer was consistent with a history of radiation exposure, there was no evidence that Mr. Kong had actually been exposed to radiation, and he therefore could not attribute Mr. Kong’s cancer to his service.

In October 2012, the RO denied the Mr. Kong’s claim. Mr. Kong filed a Notice of Disagreement in January 2013, arguing that flight logs submitted by the pilot of his B-29 in 1954 would show that the plane landed near Hiroshima. The RO issued a Statement of the Case again denying the claim in June 2013, and Mr. Kong perfected his appeal to the Board of Veterans’ Appeals (“Board”) in July 2013. Throughout his appeal before the agency, Mr. Kong argued that the flight logs would show that his plane landed near Hiroshima. He also submitted various articles critiquing the process VA used to scan paper records into electronic claims folders.

On April 19, 2016, the Board issued a decision denying Mr. Kong’s claim. The Board considered his statements concerning the existence and contents of the flight log, but it determined that the log was not part of the record. The Board found that the evidence of record did not demonstrate that Mr. Kong had been exposed to ionizing radiation in service. Accordingly, the Board concluded that Mr. Kong was not entitled to service connection for thyroid cancer, either on a direct basis or under the presumptions found in 38 C.F.R. &sec;&sec; 3.309 and 3.311.

On appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”), Mr. Kong argued that VA had lost the flight logs during the scanning of his claims folder and asked the CAVC to adopt an adverse inference rule regarding the missing record. The Secretary responded that VA was entitled to the presumption of regularity with respect to its scanning process and argued that Mr. Kong had not rebutted the presumption. In the alternative, the Secretary asserted that an adverse inference was not appropriate, as there was no evidence of intentional wrongdoing on the part of VA.

The CAVC affirmed the Board’s decision. It held that VA’s scanning procedure was entitled to a presumption of regularity, but it found that Mr. Kong had rebutted the presumption. The CAVC further held, however, that an adverse inference was not appropriate, and it found no clear error in the Board’s factual findings. One judge concurred, writing that he would not have reached the adverse inference question, as he did not believe the presumption of regularity had been rebutted.

Mr. Kong appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit“). The Federal Circuit reversed the CAVC decision, holding both that VA was not entitled to the presumption of regularity with respect to its scanning of electronic claims files and that Mr. Kong was entitled to an adverse inference regarding the contents of the missing flight logs. One judge dissented in part, writing that she would remand the case for additional factfinding into the circumstances surrounding the destruction of the flight logs.

The Secretary filed a petition for a writ of certiorari to the U.S. Supreme Court, which granted certiorari on the following two questions:

1. Is the Department of Veterans Affairs entitled to the presumption of regularity with respect to the process it uses to scan paper claims files to electronic claims files?
2. When the Department of Veterans Affairs fails to properly scan a paper record and that paper record is no longer available, is a claimant entitled to an adverse inference as to the content of that record?

Robert A. McDonald,
Secretary of Veterans Affairs, Petitioner,

v.

Peter M. Mitchell, Respondent.

Veteran Peter Mitchell served in the U.S. Navy from April 1982 to August 1991. He was discharged after being diagnosed with epilepsy. VA awarded service connection for epilepsy and assigned a 20% disability rating as of the date of his separation from service.

In November 2009, after Mr. Mitchell developed an allergy to traditional antiepileptic medication, his treating physician began administering weekly injections of cannabidiol (“CBD”), a medical marijuana derivative. Thereafter, in January 2010, Mr. Mitchell submitted a request to VA for pre-authorization for reimbursement of the cost of his CBD injections. VA denied his request, and he timely appealed.

Separately, on July 17, 2010, Mr. Mitchell was admitted to the emergency room at the VA San Diego Healthcare System after experiencing several severe seizures. Mr. Mitchell asked to be treated with CBD, but the VA physician informed him that, as marijuana was illegal under federal law, she could not do so. Rather, in light of Mr. Mitchell’s allergy to conventional antiepileptic medication, the physician decided that the best course of action was to let his attack run its course. Mr. Mitchell suffered two additional seizures in the ER; during one, he fell and hit his head, sustaining a mild concussion. Mr. Mitchell continues to suffer from occasional dizziness, confusion, and irritability as a result.

In September 2010, Mr. Mitchell filed a claim for compensation under 38 U.S.C. § 1151 for the residuals of his concussion. The San Diego, California, VA regional office denied his claim, and he timely appealed.

On April 20, 2014, the Board of Veterans’ Appeals (“Board”) issued a decision denying both of Mr. Mitchell’s claims. With respect to the issue of pre-authorization for reimbursement of his CBD injections, the Board determined that VA was prohibited by the Controlled Substance Act from reimbursing veterans for marijuana treatments. Similarly, with respect to the issue of compensation under section 1151, the Board found that that there was no “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” in VA’s failure to administer CBD.

On appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”), Mr. Mitchell argued that the Board erred in denying both of his claims, as it failed to consider the fact that medical marijuana is legal under California law and that he would not have suffered his concussion if had been treated with CBD. The Secretary responded that the Board was bound by marijuana’s status as a Schedule I drug under the Controlled Substances Act. The CAVC affirmed the Board’s decision on both claims. With respect to the reimbursement issue, the CAVC held that it could not reach the validity of the laws and regulations listing marijuana as a Schedule I drug and, thus, that it could not hold that the Board erred. Similarly, the CAVC held that, as a matter of law, the failure to administer an illegal drug could not constitute a breach of the standard of care for the purposes of section 1151. One judge dissented in part, arguing that the determination as to whether VA breached the standard of care should be a factual determination, rather than a legal one, requiring the weighing of evidence.

Mr. Mitchell appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”). The Federal Circuit reversed the CAVC decision, holding both that the CAVC was not precluded from reviewing the laws and regulations listing marijuana as a Schedule I drug and that the CAVC erred in holding that, as a matter of law, the failure to administer an illegal drug could not constitute a breach of VA’s standard of care for the purposes of section 1151. One judge dissented in part, writing that he would affirm the CAVC’s affirmance of the 1151 issue, as, under the undisputed facts of the case, VA’s actions did not breach the standard of care under section 1151.

The Secretary filed a petition for a writ of certiorari to the U.S. Supreme Court, which granted certiorari on the following two questions:

1. Does the U.S. Court of Appeals for Veterans Claims have the authority to review the validity of laws and regulations outside of Title 38 of the United States Code and Code of Federal Regulations, specifically the laws and regulations listing marijuana as a Schedule I drug for the purposes of the Controlled Substances Act?
2. Can the failure to administer medical marijuana constitute “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” for the purposes of 38 U.S.C. § 1151?

Samantha B. Nicholas, Petitioner,

v.

Robert A. McDonald,
Secretary of Veterans Affairs, Respondent.

Veteran Samantha Nicholas served in the U.S. Marine Corps as a linguist from July 2000 to November 2006, including tours of duty in Iraq and Afghanistan. In June 2003, she married Nathaniel Greene, who served in the U.S. Marine Corps from April 1998 to August 2003, also including service in Afghanistan. Following their marriage, Mr. Greene went to work as a civilian defense contractor, splitting his time between their home in Arlington, Virginia, and Palo Alto, California.

On the evening of August 7, 2006, Ms. Nicholas was home alone in her Arlington apartment; Mr. Greene was, to her knowledge, in Palo Alto and was not due back for several days. She heard a loud noise from outside the front door, followed by what sounded like someone trying to pick the lock. She retrieved a pistol from her bedside table and walked to her front room. As the door began to open, Ms. Nicholas fired two shots through the door, killing the person she believed to be an intruder but was, in fact, her husband.

At the time of Mr. Greene’s death, the Oakland, California, VA regional office (“RO”) had awarded him entitlement to service connection for bilateral hearing loss, but VA had not yet begun payment and owed him approximately $1,000 in retroactive benefits. In addition, Mr. Greene had filed a new claim for entitlement to service connection for a left knee disorder with the Oakland RO that had not yet been adjudicated.

Ms. Nicholas was tried and acquitted by both court martial and Virginia state court. In the following months, she developed symptoms of anxiety, with nightmares and flashbacks, and she was ultimately discharged in November 2006. In December 2006, she filed a claim for entitlement to service connection for PTSD with the Roanoke, Virginia, RO. The Roanoke RO initially denied her claim, finding that the killing of her husband constituted “willful misconduct” so as to bar entitlement to benefits. The Board of Veterans’ Appeals (“Board”) ultimately granted entitlement to service connection in January 2008, however, after it determined that the evidence was in equipoise on the question of whether Ms. Nicholas’s actions constituted willful misconduct, thus entitling her to the benefit of the doubt.

Separately, in April 2007, Ms. Nicholas filed a claim for entitlement to accrued benefits, seeking the $1,000 due and unpaid to Mr. Greene at the time of his death, as well as a motion to substitute for Mr. Greene in his pending left knee claim. Both documents were filed with the Roanoke RO. The RO denied entitlement to both claims pursuant to VA’s “slayer rule,” 38 C.F.R. § 3.11, finding that she had intentionally and wrongfully caused Mr. Greene’s death. The RO also determined that she had not met the filing requirements for motions to substitute set forth in 38 C.F.R. § 3.1010(b), as she should have filed her motion with the Oakland RO. Ms. Nicholas appealed the RO’s decision to the Board, which, in March 2011, denied both entitlement to accrued benefits and her motion to substitute.

On appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”), Ms. Nicholas’s attorney argued that the Board’s January 2008 finding that her actions were not willful misconduct precluded the Board, under the doctrine of collateral estoppel, from finding that she had intentionally and wrongfully caused the death of Mr. Greene. She also argued that VA’s interpretation of § 3.1010(b), which required motions for substitution to be filed at the same RO where the claim was pending, was plainly erroneous and inconsistent with the regulation. The CAVC reversed the Board’s decision, holding both that collateral estoppel barred the Board from finding that Ms. Nicholas intentionally and wrongfully caused Mr. Greene’s death and that VA’s interpretation of § 3.1010(b) was plainly erroneous and inconsistent with the regulation. One judge dissented in part, stating that he believed the Secretary’s interpretation of § 3.1010(b) was entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock Sand & Gravel Co., 325 U.S. 410 (1945).

The Secretary appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”). The Federal Circuit reversed the CAVC decision, holding both that collateral estoppel did not apply and that VA’s interpretation of § 3.1010(b) was controlling under Auer and Seminole Rock. One judge concurred, noting that, although the Federal Circuit was bound by Auer and Seminole Rock, he believed it was time to reconsider those cases to limit agencies’ discretion in interpreting their own regulations.

Ms. Nicholas filed a petition for a writ of certiorari to the U.S. Supreme Court, which granted certiorari on the following two questions:

1. Should Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), be overturned, either generally or as applied to regulations promulgated by the Department of Veterans Affairs?
2. Does a finding by the Board of Veterans’ Appeals (Board) that a veteran’s actions were not “willful misconduct” for the purposes of entitlement to benefits under 38 U.S.C. § 1110 preclude the Board from finding in a later decision that the same actions “intentionally and wrongfully caused” the death of another veteran under 38 C.F.R. § 3.11?

Amy Earhart, Petitioner,

v.

Robert A. McDonald, Secretary of Veterans Affairs, Respondent.

Veteran Amy Earhart served in the U.S. Air Force from July 2005 to July 2009 as a remotely piloted aircraft (drone) pilot and received the Air Force Commendation Medal for meritorious service. On March 22, 2009, she was scheduled to fly a Predator drone on a routine surveillance mission. Computerized records indicate that she reported for duty as scheduled, but the records were corrupted by a server fire and are incomplete. At the time of her separation from service, she reported no current symptoms or history of nervous trouble.

In September 2010, Ms. Earhart sought treatment from a private psychiatrist. She reported that, during the March 2009 mission, she was ordered to strike a building containing several high-profile terrorist leaders and that the strike resulted in a number of civilian casualties. She stated that, as a result, she had been experiencing symptoms including nightmares and flashbacks, but she did not report them to avoid any delays leaving service. The psychiatrist diagnosed Ms. Earhart with PTSD.

In November 2010, Ms. Earhart filed a claim with the Albuquerque, New Mexico, VA regional office (“RO”) for entitlement to service connection for PTSD. The RO denied her claim, making a cursory finding that she was not a combat veteran and determining that the evidence of record did not corroborate her stressor. Ms. Earhart filed a Notice of Disagreement, but the RO again denied her claim in a Statement of the Case.

Following this denial, Ms. Earhart obtained counsel, who perfected her appeal to the Board of Veterans’ Appeals (“Board”). Her attorney argued that the evidence of record did, in fact, corroborate her stressors, but he did not challenge the RO’s finding that she was not a combat veteran. The Board subsequently denied her claim.

On appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”), her attorney argued in the first instance that she should be recognized as a combat veteran and, thus, entitled to the favorable evidentiary presumptions of 38 U.S.C. § 1154(b). The CAVC, however, affirmed the Board’s decision, holding that Ms. Earhart had waived her section 1154 argument by not raising it below. One judge concurred, advocating an absolute issue exhaustion rule before the Court and, in the alternative, opining that Ms. Earhart would not qualify as a combat veteran under section 1154(b).

Ms. Earhart appealed to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit“), which affirmed the CAVC decision. The Federal Circuit held that the CAVC correctly determined that Ms. Earhart had waived her section 1154(b) argument by not raising it before the agency. One judge dissented, arguing that the non-adversarial nature of the VA benefits system weighed against issue exhaustion and that Ms. Earhart should be recognized as a combat veteran under section 1154(b).

Ms. Earhart appealed the Federal Circuit decision to the U.S. Supreme Court, which granted certiorari on the following two questions:

1. Does a claimant waive the right to raise an issue on appeal to the U.S. Court of Appeals for Veterans Claims when the claimant did not argue the issue during proceedings at the Department of Veterans Affairs and it was not reasonably raised by the record?
2. Does 38 U.S.C. § 1154(b), which affords combat veterans with an evidentiary presumption that allows them to establish an in-service injury or disease on the basis of lay evidence alone, apply to drone operators?

John Yossarian, Petitioner,

v.

Eric K. Shinseki, Secretary of Veterans Affairs, Respondent.

Veteran John Yossarian served in the U.S. Navy from May 1, 1969, to April 20, 1989, when he retired after 20 years of active service. In April 2003, he was diagnosed with degenerative disc disease, and his primary care physician treated him with steroid injections.

After several years of steroid treatments, Mr. Yossarian sought surgical treatment at the Mann-Grandstaff VA Medical Center (VAMC) in Spokane, Washington. An orthopedic surgeon, A.T. Tappman, discussed two surgical options with Mr. Yossarin: spinal fusion and intervertebral disc replacement. Based on his experience, Dr. Tappman recommended spinal fusion, and Mr. Yossarian successfully underwent that procedure in October 2004. As a result of the spinal fusion, Mr. Yossarian now has reduced range of motion in his lumbar spine.

Following his surgery, Mr. Yossarian was ordered to attend physical therapy sessions to avoid additional disabilities as a result of his decreased lumbar range of motion. For various reasons, he was unable to attend the physical therapy sessions as instructed, and he did, in fact, develop an additional disability: spondylosis of the cervical spine.

In 2006, Mr. Yossarian applied for VA disability compensation under 38 U.S.C. § 1151 and also filed a claim in district court under the Federal Tort Claims Act. He submitted evidence from a private physician, who opined that Dr. Tappman had breached the Washington standard of care by performing a spinal fusion instead of intervertebral disc replacement. The district court found in favor of Mr. Yossarian.

In a May 2008 decision, the Board of Veterans’ Appeals (Board) denied Mr. Yossarian’s 1151 claims. It relied on a VA medical expert opinion and found that, under a national standard of care, Dr. Tappman had not acted negligently. The Board also determined that Mr. Yossarian’s neck injury was the result of his failure to follow medical instructions and, thus, that 38 C.F.R. § 3.361(c)(3) precluded an award of benefits.

On appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) determined that the Board had applied the wrong standard to determine the proper standard of care, holding that the law of the place where the treatment occurred—in this case, Washington—should apply. The CAVC also determined that § 3.361(c)(3) was not valid, as it was not a permissible construction of section 1151. One judge dissented in part, arguing that the CAVC need not invalidate § 3.361(c)(3) but could, instead, interpret it to apply only to a willful failure to follow medical instructions.

The Secretary appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which reversed the CAVC decision. The Federal Circuit held that the Board correctly looked to a national standard of care. It also determined that § 3.361(c)(3) was a permissible interpretation of section 1151. One judge dissented in part, arguing that, instead of categorically applying either a national standard of care or the law of the place where the treatment occurred, VA should use the standard of care most favorable to the veteran.

Mr. Yossarian appealed the Federal Circuit decision to the U.S. Supreme Court, which granted certiorari on the following two questions:

1. What standard of care should apply to physicians accused of medical malpractice in a veteran’s claim for disability compensation under 38 U.S.C. § 1151?
2. Is 38 C.F.R. § 3.361(c)(3), which prohibits compensation under 38 U.S.C. § 1151 for disabilities arising from a failure to follow medical instructions, valid?

Eric K. Shinseki, Secretary of Veterans Affairs, Petitioner

v.

Daniela Sickles, Respondent.

Veteran Daniela Sickles served on active duty as a combat engineer in the U.S. Marine Corps from December 1987 to October 1991. She earned the Navy and Marine Corps Commendation Medal after rescuing a fellow marine from a minefield during a mortar attack during Operation Desert Storm. Upon her return to the United States, she experienced substantial difficulty readjusting, including severe disciplinary problems and alcohol abuse.

In July 1991, Ms. Sickles took her 2-year-old son from his custodial father’s house to her mother’s house, where she exhibited bizarre behavior. Her mother called the police out off fear for the safety of the child, and Ms. Sickles was arrested. Although the father declined to press charges in civilian court, Ms. Sickles was charged by the military with kidnapping and being absent without leave. Rather than contest the court-martial charges, Ms. Sickles accepted an administrative separation, resulting in a discharge under other-than-honorable conditions.

In 1995, Ms. Sickles applied for disability compensation benefits for a back injury and PTSD. The VA, however, concluded that her other-than-honorable discharge was a bar to those benefits. For the past 16 years, she has been contesting that determination. Ms. Sickles has submitted three private medical opinions, dating from 1995, 2001, and 2003, that conclude that she was not criminally responsible for her behavior because, at the time, she did not understand that what she was doing was wrong. VA also obtained a medical opinion on her mental state at the time of the kidnapping, but it addressed the VA definition of insanity set forth in 38 C.F.R. § 3.354(a), rather than the standards set forth in Ms. Sickle’s three medical opinions.

In a December 2008 decision, the Board of Veterans’ Appeals (Board) concluded that the VA opinion outweighed the private opinion and that, under the definition in § 3.354(a), Ms. Sickles was not insane for VA purposes at the time of the kidnapping. On appeal, the Court of Appeals for Veterans Claims (CAVC) determined that the regulatory standard interpreting “insanity’ for the purposes of VA benefits law was valid under the governing statute but unconstitutional as a violation of due process because it lacked any rational justification and could be applied in an arbitrary manner. The CAVC stayed Ms. Sickles’s case to allow VA to promulgate a new regulation.

The Secretary appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which also determined that § 3.354(a) was invalid. It did so, however, on a different theory—namely, that § 3.354(a) was not a valid interpretation of 38 U.S.C. § 5303(b). Applying the M’Naghten standard, which VA had endorsed in a proposed rule, the Federal Circuit reversed the Board’s determination that Ms. Sickles was not insane at the time of the kidnapping. One judge dissented, arguing that the regulation was valid and constitutional and that, even if the regulation was not valid, the appropriate remedy would be to stay the case to allow VA to adopt a new standard.

VA appealed the Federal Circuit decision to the U.S. Supreme Court, which granted certiorari on the following two questions:

1. Is the regulatory definition of “insanity” set forth in 38 C.F.R. § 3.354(a) for the purposes of determining eligibility for benefits under Title 38 valid?
2. Assuming that the first issue were decided in the claimant’s favor, did the Federal Circuit err in granting the remedy of reversal without remanding for agency rule making and fact finding?

Eric K. Shinseki, Secretary of Veterans Affairs, Petitioner,

v.

Clancy L. Thomas, Respondent.

Veteran Clancy L. Thomas served on active duty as a munitions specialist in the U.S. Air Force from June 1988 to August 1993. During service, he was sent for a medical examination after reports that he had become confrontational and irrationally suspicious of others. He was prescribed Targaryzine, which seemed to improve his problems, but he stopped taking the medication after a while because he felt that it interfered with his ability to handle his tools. His behavior became increasingly paranoid and aggressive, and he was eventually diagnosed with schizophrenia and recommended for a medical discharge.

Shortly after his discharge, Mr. Thomas applied for and was granted Department of Veterans Affairs (VA) service-connected disability benefits for his schizophrenia. He continued to take Targaryzine, but he eventually began to suffer from additional medical problems. He submitted a statement to his VA regional office (RO), reporting that he often had “tremors” and that he attributed this problem to his medication. VA interpreted his statement as an informal claim for disability benefits.

Pursuant to its statutory duty to assist, VA gathered and developed evidence in regard to Mr. Thomas’ new claim. A VA examiner concluded that Mr. Thomas suffered from “parkinsonism, a Parkinson’s-like condition” but the examiner could not state without speculation whether this was caused by Targaryzine. VA concluded that Mr. Thomas’ tremors were not related to the medication he took for his service-connected schizophrenia, and denied his claim.

On appeal, the Board of Veterans’ Appeals (Board) concluded that the speculative VA medical opinion was inadequate to satisfy VA’s statutory duty to assist. The Board remanded the claim to the RO with instructions to obtain a medical opinion from a specialist. The RO referred the case to Dr. Jack Ryan, Dean of Clinical Pharmacology at Hammersmith Medical College. Dr. Ryan concluded that Mr. Thomas” tremors were not connected to Targaryzine.

In response to Dr. Ryan’s medical opinion, Mr. Thomas submitted a lengthy document labeled “interrogatories” in which he accused the government of engaging in a “cover up” but also noted that he had been suffering from watery eyes and referenced a medical study indicating this could be connected to Targaryzine. At VA’s request, Dr. Ryan provided an addendum opinion that addressed this new information but still concluded that there was no link between Targaryzine and Mr. Thomas’ symptoms. VA again denied Mr. Thomas’ claim. Mr. Thomas appealed, and the Board affirmed the RO’s decision, relying heavily on the medical opinions of the specialist, Dr. Ryan.

Mr. Thomas appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), arguing that VA had violated his Fifth Amendment right to due process because it did not require Dr. Ryan to answer his interrogatories, specifically those suggesting a possible financial connection between the doctor and the drug company that produced Targaryzine. The Secretary of VA argued that a claimant does not have a due process right to serve interrogatories on a physician who provides a medical opinion in a veterans benefits claim. The CAVC agreed with the Secretary and affirmed the Board’s decision.

Mr. Thomas appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which vacated the CAVC’s decision, concluding that Mr. Thomas did have a due process right to information regarding the potential bias of a medical expert who provided evidence on which his claim turned. One judge wrote a separate concurrence, noting his belief that a recent case on point was flawed and that it was not, in fact, clear that applicants for any type of government benefit have a property interest protected by due process.

VA appealed the Federal Circuit decision to the United States Supreme Court, which granted certiorari on the following two questions:

1. Does an applicant for veterans disability compensation have a property interest in the prospective receipt of those benefits that is protected by the Due Process Clause of the Fifth Amendment?
2. Assuming that the first issue were decided in the claimant’s favor, does an applicant for veterans disability compensation have a constitutional due process right to have interrogatories answered by a physician who provides a medical opinion pursuant to the Department of Veterans Affairs duty to assist claimants in developing evidence necessary to decide a claim?

Benjamin F. Pierce, Petitioner,

v.

Eric K. Shinseki, Secretary of Veterans Affairs, Respondent.

Veteran Benjamin F. Pierce served on active duty as a mechanic in the U.S. Army from September 1999 to September 2003. In March 2003, he was injured when he was caught and crushed between two trucks, resulting in two herniated disks and a minor fracture in his lumbar spine. After a difficult recovery, including almost two months of bed rest, he was released to light duty only. Four months later, he completed his tour of duty and was discharged. Mr. Pierce is six feet tall. When he enlisted, he weighed 210 pounds, at the time of his injury, he weighed 190 pounds, and at the time of his discharge, he weighed 220 pounds.

Shortly after his discharge, Mr. Pierce applied for and was granted Department of Veterans Affairs (VA) service-connected compensation benefits for his back injury. He was employed as a mechanic in his brother’s auto shop for four years, until the shop went out of business. Four months later, Mr. Pierce applied for VA disability benefits for obesity, claiming that his condition is secondary to his service-connected back condition. At the time of his claim, he weighed 310 pounds and his body mass index (BMI) was 42. In support of his claim, Mr. Pierce submitted medical records documenting his weight gain after service and his attempts to control his weight. After the RO received the claim, VA’s Office of General Counsel (OGC) issued an opinion concluding that benefits could only be granted if obesity is the “inevitable, physiological result” of the primary condition. The RO then sought a medical opinion from a VA physician, who concluded that Mr. Pierce’s obesity was not inevitable because he had repeatedly failed to follow the dietary and lifestyle recommendations of his treating physician. As a result, the RO denied his claim.

On appeal to the Board of Veterans’ Appeals (Board), Mr. Pierce testified that he had attempted everything short of radical surgery to control his weight, and submitted a letter from his doctor stating that the Mr. Pierce had a sincere desire to control his weight, but that the severity of his back injury made it practically impossible for him to exercise. In its decision, the Board noted that it was bound by the OGC opinion, found that Mr. Pierce’s obesity was not the inevitable, physiological result of his back injury, and denied his appeal.

Thirty-five days after receiving the Board decision, Mr. Pierce mailed a Notice of Appeal (NOA) to his RO. Eighty-one days later, the RO mailed the NOA back to Mr. Pierce with a letter explaining that the NOA needed to be mailed to the U.S. Court of Appeals for Veterans Claims (USCAVC). Mr. Pierce remailed the NOA to the USCAVC two days after he received it back from the RO. Nonetheless, it was still post-marked one day late. The Secretary of VA moved to dismiss the appeal as untimely, asserting that the U.S. Supreme Court had recently held that the time to file an NOA was not subject to equitable tolling, and had implicitly overruled a Federal Circuit decision to the contrary. The USCAVC denied the motion on the grounds that it was bound by the decision of the Federal Circuit until that decision was expressly overruled.

In regard to the merits of Mr. Pierce’s claim, the USCAVC reversed the decision of the BVA, noting that the Court was not bound by the precedential opinions of VA’s OGC. The Court based its decision on the Federal Circuit’s adoption of a broad definition of “disease,” on the many other areas of law that recognize that obesity as a potential disability, and on the fact that VA’s “highly restrictive standard” would be both “practically impossible to satisfy” and inconsistent with the underlying rationale of veterans compensation.

The Secretary of VA appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit vacated the decision of the USCAVC, holding that the USCAVC had failed to give deference to the Secretary’s interpretation of his own regulation. The Federal Circuit also noted that Congress had acted to limit disability compensation in other areas that implicated personal responsibility, such as smoking and alcohol abuse.

Mr. Pierce appealed to the United States Supreme Court, which granted certiorari on the two questions listed below. The Secretary of Veterans Affairs original filed a cross-petition for certiorari on the first issue. However, after the Secretary’s filing, the Federal Circuit issued an en banc decision that overruled the precedents relied upon by the panel of the Federal Circuit in Pierce v. DVA. As a result, the Supreme Court designated Mr. Pierce as the petitioner for both issues.

1. Is the 120-day period for filing a Notice of Appeal (NOA) to the U.S. Court of Appeals for Veterans Claim set forth in 38 U.S.C. § 7266(a) subject to equitable tolling when the Department of Veterans Affairs delays returning an NOA it receives within the time period?
2. Does the Department of Veterans Affairs have the discretion to limit compensation for obesity secondary to a service-connected injury to cases where the condition is an inevitable, physiological result of the underlying condition?

Eric K. Shinseki, Secretary of Veterans Affairs, Petitioner,

v.

Gerald I. Joseph, Respondent.

Veteran Gerald I. Joseph served as a corporal in the U.S. Army Reserves as a member of the 861st Transportation Company. In March 2004, his unit deployed for a year of service in Iraq. In March 2007, his Reserve unit was activated for a second tour of active duty. After two months of pre-mobilization training, Corporal Joseph attended a pre-deployment party organized by the non-commissioned officers of his unit. At that party, he consumed a substantial amount of alcohol during a drinking competition and suffered acute liver failure due to a previously undiagnosed liver condition. While hospitalized for liver failure, Mr. Joseph refused the recommended, non-experimental drug treatment on religious grounds after learning that it was derived from pork products. Ultimately, Mr. Joseph received a liver transplant and was discharged as medically unfit when he failed to make a full recovery after the transplant.

After his discharge, Mr. Joseph applied for Department of Veterans Affairs (VA) compensation benefits for his disabilities relating to his liver failure and transplant. His claim was denied by VA. Specifically, the Board of Veterans’ Appeals (BVA) found that any portion of the liver disability attributable to his alcohol consumption at the party was not compensable because 38 U.S.C. § 105(a) prohibits benefits for disabilities caused by a “person”s own willful misconduct or abuse of alcohol.” The BVA also determined that any portion of Mr. Joseph’s liver disability attributable to his refusal to accept recommended medical treatment while hospitalized was not compensable because his refusal rendered any resulting injuries outside of the line of duty under 38 U.S.C. § 105(b). In so ruling, the BVA held that the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb, et. seq., did not apply to claims for veterans benefits.

On appeal from the BVA decision, the U.S. Court of Appeals for Veterans Claims (USCAVC) affirmed the BVA decision. The USCAVC deferred to VA’s interpretation of 38 U.S.C. § 105(a) in ruling that Mr. Joseph’s alcohol consumption was a form of misconduct or alcohol abuse. The USCAVC reversed the BVA’s decision that the RFRA did not apply to veterans benefits claims, but concluded that the denial of benefits in Mr. Joseph’s case was not a substantial burden on his religious freedom and also that the denial of such benefits was the least restrictive means of furthering the government’s compelling interest in maintaining an effective military.

Mr. Joseph appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). The Federal Circuit reversed the USCAVC decision. It concluded that VA’s interpretation of 38 U.S.C. § 105(a) was not entitled to deference and that Mr. Joseph’s single instance of alcohol consumption was not a form of misconduct or abuse. The Federal Circuit also held that the denial of benefits related to Mr. Joseph’s refusal of treatment was a substantial burden on his religious freedom and that the denial of such benefits was neither justified by a compelling government interest nor narrowly tailored to achieve any interest the government might have in interfering with the medical treatment decisions of a solider suffering from a rare condition.

VA appealed the Federal Circuit decision to the United States Supreme Court, which granted certiorari on the following two questions:

1. Does 38 U.S.C. § 105(a) bar disability compensation where the consumption of a substantial amount of alcohol aggravates a pre-existing condition unknown to the veteran?
2. Does the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, et. seq., prohibit the Department of Veterans Affairs from denying benefits where the veteran’s disability was caused or exacerbated by his refusal to accept medical treatment on religious grounds?