Case law

William P. McLendon v. R. James Nicholson

United States Court of Appeals for Veterans Claims · Jun 5, 2006

that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent … Maniscalco and Bearison were speculative and did not establish a medical nexus, the Board failed to recognize that these opinions also did not establish that there was no medical nexus. Cf. Forshey v.

George W. Breniser v. Eric K. Shinseki

25 Vet. App. 64 · United States Court of Appeals for Veterans Claims · Sep 19, 2011

The Board’s determination as to whether a veteran is entitled to SMC is a finding of fact that this Court reviews under the “clearly erroneous” standard of review. See Prejean v. … ANALYSIS The question before the Court is whether a veteran who is in receipt of SMC under section 1114(¿) for the loss of use of both feet qualifies to receive the maximum rate of SMC under section 1114(o) by establishing

Pat A. Hatfield v. Denis McDonough

United States Court of Appeals for Veterans Claims · Mar 8, 2021

Section 3.361(d)(2) provides that a claimant can establish proximate causation if a claimant suffered a qualifying additional disability or death that was caused by "an event not reasonably foreseeable" according to the applicable … In terms of the first element, the Board stated that "[in] this instance, the element of an additional qualifying disability or death is clearly established."76 As for the second element, the Board recognized that the "[v

Morris v. West

13 Vet. App. 94 · United States Court of Appeals for Veterans Claims · Oct 12, 1999

Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”) … As stated above, the record before the RO in 1966 consisted of a qualified diagnosis, which, clearly, could have been weighed differently. The fact that it was not is insufficient to demonstrate CUE.

Clarence W. King v. Eric K. Shinseki

26 Vet. App. 484 · United States Court of Appeals for Veterans Claims · Mar 21, 2014

The Secretary argues that the appellant's DD-214 forms clearly reveal that the appellant did not serve for 90 days and thus he cannot qualify for a non-service-connected pension. Secretary's Br. at 6. … Once VA has awarded a benefit, it may only take away that benefit through a finding that the original determination was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a), (h) (2013).

Hanson v. Derwinski

1 Vet. App. 512 · United States Court of Appeals for Veterans Claims · Oct 16, 1991

Therefore, “all of the evidence ... establishes that the [Tourette’s syndrome] was incurred in service.” 38 C.F.R. § 3.303 (d). … The same examination report indicated that appellant was “qualified for separation.”

Rosa G. Canlas v. R. James Nicholson

21 Vet. App. 312 · United States Court of Appeals for Veterans Claims · Jun 15, 2007

These findings by the service department as to qualifying service for VA benefits "are binding on VA for purposes of establishing service in the U.S. Armed Forces." Duro v. Derwinski, 2 Vet.App. 530, 532 (1992). … Canlas had qualifying military service.

McGuire v. West

11 Vet. App. 274 · United States Court of Appeals for Veterans Claims · Jun 30, 1998

Instead, Congress delimitated a specific time period for qualifying occupation forces. … On Leave in Hiroshima and Nagasaki A determination that the veteran’s military duties did not require him to participate in the occupation of Hiroshima of Nagasaki is a finding of fact that this Court reviews under a “clearly

Otero-Castro v. Principi

16 Vet. App. 375 · United States Court of Appeals for Veterans Claims · Oct 4, 2002

basis in the record for the Board's determination that a rating increase was not warranted and that that determination is thus not clearly erroneous. … The Court notes that if the Secretary wishes to establish a DC containing two criteria for a 60% rating, it is his obligation to do so clearly, not ambiguously.

James E. Sursely v. James B. Peake

22 Vet. App. 21 · United States Court of Appeals for Veterans Claims · Dec 21, 2007

The statute links these two different methods of establishing entitlement to a clothing allowance by the word "or." … who receive a VA examination or hospital report disclosing the use of a qualifying appliance and resulting wearing out or tearing of clothing.

Stanley J. Palczewski v. R. James Nicholson

21 Vet. App. 174 · United States Court of Appeals for Veterans Claims · Apr 24, 2007

once a disability has been established." 58 Fed. … In the examination report, the examiner clearly states that Mr. Palczewski has "normal hearing." R. at 139. However, considering that Mr.

Darlene S. Cypert v. James B. Peake

22 Vet. App. 307 · United States Court of Appeals for Veterans Claims · Dec 23, 2008

It is not clear why the Secretary believes this section authorizes him to determine a beginning date other than the one established by section 3512(b)(1)(A). … There is no dispute that Congress thereafter changed the statute to clearly provide a 10-year period of benefits tied to a date other than the death of the veteran.

Chastain v. West

13 Vet. App. 296 · United States Court of Appeals for Veterans Claims · Jan 24, 2000

The question before the Court, therefore, is whether the circumstances here regarding the appellant's NOA qualify for equitable tolling of the statutory judicial-appeal time period. … The Supreme Court in Irwin stated: A waiver of sovereign immunity "'cannot be implied but must be unequivocally expressed.'"

Erspamer v. Brown

9 Vet. App. 507 · United States Court of Appeals for Veterans Claims · Nov 4, 1996

As this Court has previously noted, “[b]oth these statutes clearly establish that an application must be filed.” Crawford v. Brown, 5 Vet.App. 33, 35 (1993); see Wells, 3 Vet.App. at 309 . … There is no lack of evidence regarding his intent to be reimbursed by VA, or to benefit from the educational programs for which he qualified.

Elcyzyn v. Brown

7 Vet. App. 170 · United States Court of Appeals for Veterans Claims · Nov 21, 1994

QUALIFYING FOR EAJA FEES A. … Derwinski, 1 Vet.App. 413 (1991), can clearly be limited to the CUE issue. Nor has the Secretary provided any grounds for such an apportionment.

Cook v. Brown

4 Vet. App. 231 · United States Court of Appeals for Veterans Claims · Feb 23, 1993

BACKGROUND The veteran served on active duty in the United States Army from August 1942 to December 1945; he was recalled to active duty in 1950 but apparently was found not qualified and did not serve. R. at 1, 93. … In 1950, when he was recalled to active duty, his entrance physical examination, dated September 14, 1950, noted a history of duodenal ulcer; although the form is nearly illegible, it appears that he was found not qualified

Karen Gordon v. James B. Peake

22 Vet. App. 265 · United States Court of Appeals for Veterans Claims · Nov 21, 2008

The Court found that the "statute clearly applies to any benefit that a claimant seeks and makes no distinction that would exclude certain types of 'benefits.'" Id. at 278. … SOVEREIGN IMMUNITY The Government is immune from claims for attorneys fees, except to the extent that it has waived such immunity. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983).

Struck v. Brown

9 Vet. App. 145 · United States Court of Appeals for Veterans Claims · May 14, 1996

No abnormalities, defects, or diagnoses were noted, and he was found qualified for separation. R. at 39-40. … The appellant cannot be a claimant unless he first establishes “veteran” status. See Colon, Sandoval, and Aguilar , all supra.

McCracken v. Principi

14 Vet. App. 269 · United States Court of Appeals for Veterans Claims · Feb 12, 2001

This Court has established two requirements as to the status of an attorney for whose representation a party seeks EAJA fees. … This failure is especially significant because Rule 46(d)(3) clearly required his signature on such pleadings.

Marlow v. West

12 Vet. App. 548 · United States Court of Appeals for Veterans Claims · Sep 1, 1999

Marlow is a qualifying survivor under section 5121(a), which limits qualifying survivors to the deceased veteran’s spouse, child (as defined in 38 U.S.C. § 101 (4)(A)), or dependent parents; or the person who bore the expenses … The record is replete with examples of VA’s disingenuous refusal to acknowledge the specific nature of the claim for benefits under section 1114(o) and to deny what is manifestly obvious in the record and was clearly articulated