| Veterans Law Library |
A Comprehensive Collection of
Materials Relating to the Veterans
Benefits Adjudication Process
Materials Relating to the Veterans
Benefits Adjudication Process
Archive Jul. - Dec. 2011
“The willingness
with which our
young people are
likely to serve in
any war, no matter
how justified, shall
be directly
proportional as to
how they perceive
veterans of earlier
wars were treated
and appreciated by
this country.”
George Washington
with which our
young people are
likely to serve in
any war, no matter
how justified, shall
be directly
proportional as to
how they perceive
veterans of earlier
wars were treated
and appreciated by
this country.”
George Washington
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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]
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]
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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]
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]
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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]
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]
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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]
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]
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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)).
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)).
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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).
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).
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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/
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/
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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.
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.