Justia Injury Law Opinion SummariesArticles Posted in U.S. Federal Circuit Court of Appeals
Spicer v. Shinseki
Spicer served on active duty in the Navy from 1984 until 1987. In 1986, Spicer fractured his left little finger when a door closed on his hand while aboard ship. The fracture required surgery, which resulted in the finger joint fusing. In 2007, a VA examiner diagnosed Spicer as having degenerative arthritis of the distal interphalangeal joint in that finger. A VA regional office denied Spicer a compensable rating. The Board of Veterans’ Appeals found that although Spicer’s left finger disability was manifested by pain and limitation of motion, he failed to meet the criteria for a compensable evaluation for a left finger disability under either Diagnostic Code (DC) 5227 or 5230. The Veterans Court rejected Spicer’s argument that DC 5003 assigns a 10% rating for either a single affected major joint or a group of affected minor joints and that 38 C.F.R. 4.45(f) does not mandate that multiple minor joints be involved. The Veterans Court stated that “the DIP joint is not a major joint or minor joint group for the purpose of rating disabilities from arthritis.” The Federal Circuit affirmed. View "Spicer v. Shinseki" on Justia Law
Bowers v. Shinseki
Bowers served in the Army National Guard 1972-1978, with a continuous period of active duty for training from August 1972 to February 1973. His records do not reflect that he incurred any injury or disease during service. In 2009, shortly after his diagnosis with Lou Gehrig’s disease (ALS), Bowers sought benefits for ALS and secondary conditions. A VA Regional Office denied the claim, finding that his ALS was not incurred or aggravated in service. The Board of Veterans’ Appeals rejected his argument that he was entitled to presumptive service connection for ALS under 38 C.F.R. 3.318, noting that reserve duty and active duty for training of the type Bowers performed does not generally entitle an individual to evidentiary presumptions. While his appeal to the Veterans Court was pending, Bowers died and his wife was substituted as the appellant. The Veterans Court affirmed, finding that Bowers did not achieve “veteran status,” and was not entitled to presumptive service connection. The Federal Circuit affirmed. View "Bowers v. Shinseki" on Justia Law
LaLonde v. Sec’y of Health & Human Servs.
M.L. was born in 2003. At his 15-month well-child visit, his pediatrician noted that M.L. was walking and generally developing normally but did not “want to talk.” In 2005, M.L. received several immunizations, including the DTaP vaccination. Hours later, M.L. allegedly began experiencing an abnormally high fever and swelling. He was admitted to the hospital with a diagnosis of “vaccine adverse reaction with secondary fever, angiodema, and anaphylactoid reaction.” The morning after his discharge, M.L.’s mother called an ambulance because M.L. was exhibiting signs of hypothermia and seizure-like episodes. In the months that followed, M.L.’s vocabulary allegedly decreased. An MRI of M.L.’s brain with and without contrast was normal. After observing M.L.’s developmental delays and repetitive behaviors, a pediatric neurologist placed M.L. in the autism spectrum disorder category. A special master rejected claims under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa-1 to -34, and the Claims Court affirmed. The Federal Circuit affirmed. While the DTaP vaccination likely caused the initial anaphylactic reaction, there was no reliable medical theory that the M.L.’s anaphylaxis caused a focal brain injury. View "LaLonde v. Sec'y of Health & Human Servs." on Justia Law
Stallworth v. Shinseki
Stallworth served in the U.S. Army, 1974-1975, during which time he experienced a psychotic episode that was attributed to his illicit use of the drug LSD. He recovered with hospitalization, but relapsed following return to active duty and was diagnosed with acute paranoid schizophrenia. A treating physician noted that it was not clear whether Stallworth’s illness was caused by his drug use or by independent psychosis. An Army medical board found him unfit for further military duty. Weeks later, a VA Regional Office awarded Stallworth service connection for schizophrenia at a 50% disability rating. Thereafter, Stallworth was often admitted to inpatient psychiatric facilities where medical professionals repeatedly opined that he had “no mental disorder” and that Stallworth’s service connection diagnosis was in error. The VA severed Stallworth’s service connection on the basis of clear and unmistakable error (CUE) and declined to reopen his claim because of a lack of new evidence. In 1981, the Appeals Board affirmed. The Veterans Court and Federal Circuit affirmed. View "Stallworth v. Shinseki" on Justia Law
Dixon v. Shinseki
Dixon served in the Army, 1979-1992, including as a chemical operations specialist in the Persian Gulf, where he was exposed to pyridostigmine and “encountered smoke from oil fires, diesel, and burning trash,” and had “cutaneous exposure [to] diesel and petrochemical fuel.” In 2003, Dixon was diagnosed with sarcoid lungs and transverse myelitis, which left him temporarily paralyzed from the waist down. He sought service-connected disability benefits. In 2004 a VA regional office denied Dixon’s claim. The Board of Veterans’ Appeals affirmed, Dixon filed a pro se notice of appeal, 60 days after the 120-day filing deadline, 38 U.S.C. 7266(a). The Veterans Court dismissed, concluding that it was “without jurisdiction.” In 2011 the Supreme Court held that the filing deadline is not jurisdictional. The Veterans Court issued an order allowing Dixon and others to move to recall the dismissals. Still acting pro se, Dixon sought equitable tolling, explaining that he suffered from physical and psychiatric disabilities that prevented him from filing in a timely manner, accompanied by a statement from his psychiatrist. The Veterans Court denied Dixon’s motion. Attorneys subsequently agreed to represent Dixon. The Veterans Court allowed until October 4, 2012 to move for reconsideration. The VA refused to provide a copy of the file and the earliest available appointment for reviewing the file was October 1. On that dated, VA staff monitored the review and declined requests for copies of documents. The Federal Circuit reversed the denial of an extension, stating that the disability compensation system is not meant as a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim.View "Dixon v. Shinseki" on Justia Law
Tembenis v. Sec’y of Health & Humans Servs.
At age four months, Elias received a Diptheria-Tetanus-acellular-Pertussis (DTaP) vaccine. Elias developed a seizure disorder shortly afterwards. While a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. 300aa-1, was pending, Elias died as a result of his seizure disorder at the age of seven. A special master determined that the DTaP vaccine caused Elias’ epilepsy and resulting death. The Secretary of Health and Human Services and the estate agreed to a $250,000 death benefit plus $175,000 for actual pain and suffering and past unreimbursable expenses. The estate also sought future lost earnings under section 300aa-15(a)(3)(B). The special master determined that the estate was entitled to future lost earnings. Subject to the right to seek review, the Secretary proffered, and the estate accepted the sum of $659,955.61 as a measure of the lost earnings. The Claims Court affirmed the special master’s future lost earnings award. The Federal Circuit reversed, holding that an estate cannot recover lost future earnings under section 300aa-15(a)(3)(B) when the person injured by a vaccine dies before entry of a compensation judgment. View "Tembenis v. Sec'y of Health & Humans Servs." on Justia Law
Sprinkle v. Shinseki
Sprinkle served in the U.S. Army, 1973-1974. While in the service, he was diagnosed with schizophrenia and prescribed a high dose of Thorazine®. In 1990, Sprinkle was diagnosed with mitral valve prolapse and chorea, a movement disorder similar to benign familial myoclonus. He succeeded in establishing entitlement to disability compensation before the Social Security Administration, the VA Regional Office awarded. Sprinkle a non-service-connected pension on effective 1990. In 2001, he sought a service connection for mitral valve prolapse and myoclonus, claiming that he was incorrectly diagnosed with schizophrenia and that the high doses of Thorazine® worsened his mitral valve prolapse and caused his myoclonus.The Regional Office denied the application. The Board of Veterans’ Appeals agreed and the Veterans’ Court affirmed. The Federal Circuit affirmed, holding that Sprinkle was not denied fair process as it related to responding to a medical exam ordered by the Board.View "Sprinkle v. Shinseki" on Justia Law
Wagner v. Shinseki
In 2001, Wagner, who served in the Navy for 23 years, sought disability compensation for a thyroid disorder that he claimed was contracted or aggravated in the line of duty. He finally prevailed in 2009, then timely filed an application for $11,710.57 in fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412.In October, 2009, the Veterans Court awarded $8,601.80, which gave the government all the reductions it sought except for 3.2 hours of work. Wagner filed his first supplemental application 12 days later, seeking $2,458.90 in fees for defending the original application against the government’s reasonableness challenges. The Veterans Court vacillated, then denied entry of judgment on the October 2009 fee award on the original fee application, and denied the first supplemental application. The Federal Circuit reversed in April 2011. On remand the Veterans Court granted Wagner’s first supplemental application for $2,458.90. The Federal Circuit vacated the denial of Wagner’s motion for the entry of a judgment and mandate regarding the 2009 and 2011 fee awards and affirmed the judgment regarding Wagner’s second supplemental application. View "Wagner v. Shinseki" on Justia Law
AZ v. Shinseki
Veterans sought disability compensation for post-traumatic stress disorder (PTSD) allegedly caused by sexual assaults that occurred during service. Their service records do not reflect any reports of the alleged sexual assaults. The VA Regional Office, Board of Veterans’ Claims, and the Court of Appeals for Veterans Claims rejected the claims in part on the ground that the service records did not include reports of the alleged assaults, and because the veterans stated that the assaults were never reported to military authorities. The Federal Circuit vacated and remanded, holding that the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur; the Board and Veterans Court may not rely on failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur. View "AZ v. Shinseki" on Justia Law
Carson v. Sec’y, Health & Human Servs.
Kit Carson was born in May 1996, and received numerous vaccinations during his first year of life. At his 18-month and 24-month check-ups, Kit’s pediatricians noted that his speech was delayed. Following his three-year check-up, Kit was referred for evaluation and diagnosed with autism spectrum disorder in 2001. His parents sought compensation under the National Childhood Vaccine Injury Act, 42 U.S.C. 300aa, in 2002. A Special Master concluded that the first symptoms of Kit’s disorder were recorded in May 1999 and that the claim was not filed within the 36-month limitations period. The Federal Circuit affirmed, rejecting an argument that speech delay cannot be a “first symptom” because it is an insufficient basis for a diagnosis of autism. View "Carson v. Sec'y, Health & Human Servs." on Justia Law