Court of Appeal for Veterans Claims / Federal Appeals Court

1. Court of Appeal for Veterans Claims / Federal Appeals Court Gary Ivy TVC Fort Hood

2. Why Review Cases • Help with Veterans claims. • Help with a more effective Appeal. • Gain Knowledge • Satisfaction

3. What we will Review • Decision Assessment Document (DAD) • Board of Appeals • Court of Appeals for Veterans Claims • Court of Appeals for the Federal Circuit

4. Rodriguez v Peake • Court of Appeals for the Federal Circuit • Case: DIC • Summary of Facts: • Veteran deceased in 1996 • 10% Diabetes increased to 100% 1991 • DIC Claim filed in 1996 • RO denied DIC U.S.C. 1318

5. Rodriguez v. Peake • Court of Appeals for Federal Claims • Denied Claim under 3.22 and 1318 • Was not entitled to Hypothetical entitlement • Must be entitled to compensation service connected disability. • Rated P&T for 10 years prior to death. • Princess Cruises v United States.

6. Hartness v. Nicholson • United States Court of Appeals for Veterans Claims • Case: Special Monthly Pension • Summary of Facts: • Veteran Hon Discharged 1940-1945 • Documented Permanently and Legally Blind. • Exam Vet able to bathe, feed dress himself. • Able to ambulate 100 yards. • Only leave the house Twice a week for church and Shopping with assistance.

7. Hartness v. Nicholson Granted NSC at 70% • BVA Denied Claim for SMP due to Housebound • Court of Appeal reversed and Granted benefit SMP denied • Court Remanded due to lack guidance on interaction between 1521 and 1513. • When interpreting 1513 section 1523(e) is excluded for Vets 65 and older disabled 60% or greater and is Permanently Housebound

8. Dye v. Mansfield • US Court of Appeals for Federal Circuit • Case: Service Connected Disability • Post Service injury connection to service connected injury. • Summary of Facts: • Honorable 1958-1975 • STR show complaints of Pain Back, Ankles, Knees and Feet. • Injured back in 1980 • Treated by VA 1997-2003 • 1996 Filed claim for Lower Back, Bilateral Knees, and Bilateral ankles

9. Dye v. Mansfield • Denied service connection by RO, BVA • USC 105(a) and 1111 • In service injury or disease does not lead for future illness or disease. • Must Be Nexus • Denied due to lack of Nexus under 105 • There is no causal relationship must be proven via nexus.

10. Gibson v. Peake • US Court of Appeals for Veterans Claim • Case • Notice of Disagreement (NOD) • Total Disability due to Individual Unemployability • Summary of Facts • RO denied TDIU • Vet Sent in VA Form 9 with “See Attached Sheets” Aug 2000 • Approved May 2002 Effective Date Aug 16, 2001 • Decision • The court stated issuance of SOC not prerequisite to submit a valid Substantive Appeal

11. Gibson v. Peake • Submitting a second Form negated the first being a Substantial Appeal. • His submission could not be determined to two separate documents. • Denied earlier effective date.

12. Wilson v. Mansfield • US Court of Appeals for the Federal Circuit • Case • VCAA • Whether the VA is required to go beyond a claimant notice and be generic. • Summary of Facts • Veterans Counsel wrote to BVA: “ If you determine that there is significant negative evidence on a material issue in this claimants record, please let my client know what this evidence is and what types of evidence would aid in rebutting this negative evidence and substantiate these claims.”

13. Wilson v. Mansfield • Decision • The court stated the VA is only require to give notice and not analyze.

14. McClain v. Nicholson • US Court of Appeals for Veterans Claims • Case: Requirement to have a disability when claimed • Summary of Facts: • Vet filed claim in Sept.1994 • VA exam 10/1995 diagnosis of Depression as a result of Gulf War Syndrome (GWS). • VA exam 8/1997 diagnosis Possible GWS manifested by memory loss, joint pain , and headaches.

15. McClain v. Nicholson • VA exam 2003 diagnosis of depression had resolved. • Decision : • BVA Conceded diagnosis of Depression in 11/2004 due to Persian Gulf War. • Could not be granted because condition no longer diagnosed. • Vet argued that BVA should have granted due to disability existed at time of claim.

16. McClain v. Nicholson • Court sided with Vet because the board found the vet had the disability. • Board erred because disability was not found at the time of the decision. • Board reversed the Board and remanded for further adjudication and assignment of effective date and staged rating.

17. Jennings v. Mansfield • US Court of Appeals for Federal Circuit • Case: Whether subsequent information or evidence before becoming final is a motion to reopen. • Summary of Facts: • Vet served honorably 10/1952-5/1954 • Had frequent indigestion, stomach, liver and intestinal problems upon entering service. • 7/1953 while hospitalized reported “many year history of colitis”

18. Jennings v. Mansfield • Determined unfit due to ulcerative colitis. • Denied Service connection in 9/1954 • 10/1954 Private physician letter stating no previous treatment two years prior to service. • No Appeal • Reopen claim May 1995 granted by Board in 1998. • Filed to reopen 1954 claim due to Clear and Unmistakable Error (CUE) • Decision:

19. Jennings v. Mansfield • Ro denied CUE • BVA sided with RO saying that no records of aggravation or incurred in service. • Federal Circuit refuted Vets contention the BVA failed to use particulars statutory language. Citing 1954 claim requirement did not exist. • Federal Circuit concluded the veteran could not prevail because no demonstration of CUE that would have changed the 1954 decision.

20. The End • ?