Case law

Freddie Butts v. Robert A. McDonald

28 Vet. App. 74 · United States Court of Appeals for Veterans Claims · Jun 3, 2016

This factor furthers the commonsense principle that "[f]or purposes of the EAJA, the more clearly established are the governing norms, and the more clearly they dictate the result in favor of the private litigant, the less … And, I add a brief statement to what they have clearly and logically stated.

McCormick v. Principi

16 Vet. App. 407 · United States Court of Appeals for Veterans Claims · Oct 17, 2002

The Secretary maintains that this was not a basis for remand and that, even if it was, it is not the type of error that should be sufficient to qualify one as a prevailing party. … Accordingly, because there is a Court determination of § 3.303(b)/Savage error here and because the Court’s remand language also clearly indicated that the remand was based on that § 3.303(b) error, we hold that the appellant

Ronald L. Evans v. Robert A. McDonald

27 Vet. App. 180 · United States Court of Appeals for Veterans Claims · Dec 2, 2014

Such a holding would be an emphatic departure from established caselaw requiring a change in the ultimate outcome to establish CUE. See Bustos v. West, 179 F.3d 1378, 1381 (Fed. … Evans's PTSD did not make him unemployable because it contained a September 1986 pre- employment physical examination finding the veteran "[a]cceptable for any kind of work for which he is qualified."

Wanner - Wright v. Principi

17 Vet. App. 4 · United States Court of Appeals for Veterans Claims · Feb 12, 2003

The Secretary counters that the determination of a proper effective date is a question of fact and is therefore reviewable only under the "clearly erroneous" standard under 38 U.S.C. § 7261(a)(4). … Furthermore, it is also a well-established principle of constitutional litigation that a Court will "'avoid reaching constitutional questions in advance of the necessity of deciding them'", and will first determine whether

Hayre v. Principi

15 Vet. App. 48 · United States Court of Appeals for Veterans Claims · Jun 14, 2001

parties and invited interested amicus curiae to submit memoranda as to this Court's jurisdiction, any breach of the 1972 duty to assist, and any requirement that in 1972 a claim had to have been well grounded in order to qualify … "Moreover, it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the

Earlee King v. Eric K. Shinseki

23 Vet. App. 464 · United States Court of Appeals for Veterans Claims · May 28, 2010

The Board's determination of whether a claimant has submitted new and material evidence is generally reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Suaviso v. … Consequently, the June 1997 treatment note qualifies as an informal claim for benefits. The first requirement is that an informal claim must be written.

Christine Varad v. Denis McDonough

United States Court of Appeals for Veterans Claims · May 15, 2024

Varad argues that reversal is appropriate because the Board clearly erred in concluding that she was not permanently incapable of self-support prior to age 18. … Thus, the Court will not further discuss the January 2021 medical record as it clearly does not qualify for constructive possession. B.

Bankheadv. McDonald

United States Court of Appeals for Veterans Claims · Mar 27, 2017

The Board's determination of the appropriate degree of disability is a finding of fact subject to the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood v. … First, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. See R. at 41-42.

Bobby L. Bankhead v. David J. Shulkin

United States Court of Appeals for Veterans Claims · May 19, 2017

The Board's determination of the appropriate degree of disability is a finding of fact subject to the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Smallwood v. … First, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. See R. at 41-42.

Cole v. West

13 Vet. App. 268 · United States Court of Appeals for Veterans Claims · Dec 23, 1999

Analysis “When a qualifying veteran dies from a service-connected disability, the veteran’s surviving spouse is eligible for DIC” pursuant to 38 U.S.C. § 1310 and 38 C.F.R. § 3.5 (a) (1998). Carpenter v. … Section 3.105(a) of title 38, Code of Federal Regulations, provides: Where evidence establishes [CUE], the prior decision will be reversed or amended.

Antonio Pacheco v. Sloan D. Gibson

27 Vet. App. 21 · United States Court of Appeals for Veterans Claims · Jul 17, 2014

Pacheco's award of disability compensation is not in violation of law or otherwise clearly erroneous. See Gilbert v. … created the Court to bring uniformity, transparency, and cohesion to veterans law through judicial review of executive action" and that the Court "was intended to be a 'lawgiver' in an area that had, historically, been immune

Wayne Calhoun v. Denis McDonough

United States Court of Appeals for Veterans Claims · Jan 9, 2024

The Court took this action because it is well established that the Board lacks the authority to review such a claim, which occurs when a claimant files a claim seeking an earlier effective date after the decision assigning … "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'"

Robert W. Jensen v. David J. Shulkin

United States Court of Appeals for Veterans Claims · Sep 12, 2017

It clearly does in the Mauerhan context. … More importantly, the fact that Congress attached qualifying phrases to "loss, or loss of use" on several occasions indicates that the qualifying phrases are meant to sharpen its contours. 7 The Secretary

Mark R. Lippman v. Eric K. Shinseki

United States Court of Appeals for Veterans Claims · Jul 23, 2009

B LACK 'S L AW D ICTIO N ARY 1255 (7th ed. 1999). 14 fees under qualifying fee agreements); Aronson v. … Swinger's in- service stressors to establish initial entitlement to service connection (Appellant's Supp. Mem. at 5-6); 6. the amount and nature of work Mr.

Patricia D. Simmons v. Eric K. Shinseki

24 Vet. App. 87 · United States Court of Appeals for Veterans Claims · Sep 28, 2010

Simmons appealed the denial, and the Board in February 2001 remanded the matter for the RO to determine whether her right ear hearing loss claim qualified for secondary service connection. … He further argues that the appellant's postdecisional submissions establish actual knowledge of what evidence was required. See Secretary's Supp. Br. at 12-13.

John J. Batcher v. Robert L. Wilkie

United States Court of Appeals for Veterans Claims · Apr 26, 2019

As outlined above, to be entitled to special apportionment, a claimant must establish that (1) he or she is a qualifying dependent of the veteran; (2) he or she suffered a hardship during the relevant period; and (3) apportionment … The statute concerning apportionment of VA benefits clearly states that benefits may be apportioned "if the veteran is not living with the veteran's spouse." 38 U.S.C. § 5307(a)(2) (emphasis added).

Denise Jarrell v. R. James Nicholson

20 Vet. App. 326 · United States Court of Appeals for Veterans Claims · Aug 24, 2006

There are no qualifying terms requiring the Board to address only material issues or claims that have been previously considered by the regional office. … As the Supreme Court clearly set forth in Day and Scarborough , claims processing rules are not jurisdictional.

Victor B. Skaar v. Robert L. Wilkie

United States Court of Appeals for Veterans Claims · Dec 6, 2019

City of New York clearly endorsed certification of just such a group of Social Security claimants. … Here, the additional factor is clearly met.

Thurman Fuller, Jr. v. Denis McDonough

United States Court of Appeals for Veterans Claims · Feb 23, 2022

Fuller would still qualify. … To begin with, appellant is clearly not a "claimant" for purposes of seeking Board review.

Owings v. Brown

8 Vet. App. 17 · United States Court of Appeals for Veterans Claims · May 24, 1995

Kelly, 397 U.S. 254, 261-63 , 90 S.Ct. 1011, 1016-18 , 25 L.Ed.2d 287 (1970), held that welfare benefits “are a matter of statutory entitlement for persons qualified to receive them” and thus “[r]elevant constitutional restraints … benefits were predicated on section 103(d)(2) ... before the effective date of those amendments.” *25 The phrase “any individual whose benefits were predicated on section 103(d)(2) ... before the date of the amendments” clearly