Case law

Michele D. Burden v. Eric K. Shinseki

25 Vet. App. 178 · United States Court of Appeals for Veterans Claims · Feb 1, 2012

Burden fails to demonstrate that the Board's finding that she had not established a common law marriage under Alabama law is either clearly erroneous or arbitrary and capricious. … Based on the record on appeal, these findings are plausible and not clearly erroneous.

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

Darby v. Brown

10 Vet. App. 243 · United States Court of Appeals for Veterans Claims · May 9, 1997

The Court must affirm this finding of fact unless it is found to be “clearly erroneous.” See Gilbert, supra. … is not clearly erroneous.

Daniels v. Brown

9 Vet. App. 348 · United States Court of Appeals for Veterans Claims · Sep 3, 1996

[I]n all cases[,] section 105 establishes a presumption in favor of a finding of line of duty. … Roizen admits that “he is not qualified to render authoritative judgments regarding most of what I have described.” R. at 255.

Buie v. Shinseki

24 Vet. App. 242 · United States Court of Appeals for Veterans Claims · Mar 23, 2010

Buie did not file Notices of Disagreement with those decisions is not clearly erroneous. … In addition, such a result would be in conflict with VA’s well-established duty to maximize a claimant’s benefits. See AB v.

Schaper v. Derwinski

1 Vet. App. 430 · United States Court of Appeals for Veterans Claims · Aug 26, 1991

The law very clearly establishes the standard for retroactive release as being whether “the [Secretary] would have issued the veteran a release from liability under subsection (a) with respect to the loan if the veteran had … However, it appears that the law and regulation establish three criteria all of which must be met in order to qualify for a retroactive release — namely, at the time of transfer, there must have been (1) a legally liable

Forshey v. West

12 Vet. App. 71 · United States Court of Appeals for Veterans Claims · Dec 3, 1998

Generally Applicable Law Pursuant to 38 U.S.C. § 1310 , dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Hanna v. … [I]n all cases[,] section 105 establishes a presumption in favor of a finding of line of duty.

Florence Kennedy v. Robert L. Wilkie

United States Court of Appeals for Veterans Claims · Dec 9, 2020

Appellant may therefore succeed here only if Fast Letter 13-04 qualifies as a "VA issue" under § 3.114(a). … Fast Letter 13-04 was clearly a significant document, but it was limited in scope.

Espiritu v. Derwinski

2 Vet. App. 492 · United States Court of Appeals for Veterans Claims · Jun 19, 1992

Based on these legal principles, Item One is clearly repetitive evidence and, hence, not new. While new, Items Two and Four are not relevant and probative, and, hence, are not material evidence. See De Espiritu, at 3. … This rule is recognized in Rule 702 of the Federal Rules of Evidence, which requires that “scientific, technical, or other specialized knowledge”, must be provided by “a witness qualified as an expert by knowledge, skill,

Hal H. Locklear v. R. James Nicholson

20 Vet. App. 410 · United States Court of Appeals for Veterans Claims · Sep 19, 2006

It follows that Board findings regarding VA's compliance with the duty to notify are findings of fact that the Court reviews under the clearly erroneous standard. See 38 U.S.C. § 7261(a)(4). … Nicholson, the Court observed that the third prong of § 3.159(c)(4)(I), which requires that the evidence of record "indicates" that "the claimed disability or symptoms may be associated with the established event," establishes

Dambach v. Principi

14 Vet. App. 307 · United States Court of Appeals for Veterans Claims · Apr 3, 2001

Quite clearly, even assuming it had the authority to do so, the Federal Circuit did not direct the award of benefits. … We are not privy to the case loads, the number of remands taking precedence over this case, and the relative priorities established at the BVA or the regional offices.

Mullins v. Derwinski

2 Vet. App. 522 · United States Court of Appeals for Veterans Claims · Jul 7, 1992

Derwinski, 1 Vet.App. 140 (1991), this Court established that the BVA must perform a two-step analysis when the veteran seeks to reopen a claim based upon new evidence. … Derwinski, 2 Vet.App. 492, 495 (1992) (citation omitted) (holding that lay persons were not qualified to provide a “probative diagnosis” as to the cause of the veteran’s death). III.

Patricia A. Martin v. Eric K. Shinseki

26 Vet. App. 451 · United States Court of Appeals for Veterans Claims · Feb 28, 2014

scheme, if VA's interpretation of the statute is reasonable, the courts are precluded from substituting their judgment for that of VA, unless the Secretary has exceeded his authority; the Secretary's action was clearly … The veteran did not meet the eligibility requirements for a waiver established in section 1912.

Drosky v. Brown

10 Vet. App. 251 · United States Court of Appeals for Veterans Claims · May 14, 1997

There are no requirements that the enlargement be of a certain size or degree to qualify for a particular rating. … “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 52 (quoting Anderson v.

Constance Copeland v. Eric K. Shinseki

26 Vet. App. 86 · United States Court of Appeals for Veterans Claims · Nov 14, 2012

Copeland incurred no trauma to his left mandible, and (2) no significant studies clearly indicated a relationship between a tumor and trauma. … Based on the record of proceedings, the Board's finding is plausible and not clearly erroneous. See Gilbert v.

Charles L. Breedlove Brenda Breedlove v. Eric K. Shinseki

24 Vet. App. 7 · United States Court of Appeals for Veterans Claims · Aug 10, 2010

To be clear, the adverse effect of a Board decision can be removed by applying the remedy established in Landicho, supra; i.e., by vacating the Board decision and dismissing the appeal. … Finally, when accrued-benefits status is established by decision below or concession by the Secretary, standing is established, and substitution generally will be permitted, subject, as always, to judicial decision that it

Sklar v. Brown

5 Vet. App. 140 · United States Court of Appeals for Veterans Claims · May 18, 1993

Rueda, in a letter dated August 5, 1983, stated that his one Observation of appellant did not fully qualify him to establish whether appellant suffered from PTSS. Dr. … Sklar clearly has psychiatric problems of a neurotic nature which appears to be deep rooted and long standing[.]” Dr. Ryan’s “new” statements reflect the same ambivalence and are thus clearly cumulative.

Sanden v. Derwinski

2 Vet. App. 97 · United States Court of Appeals for Veterans Claims · Jan 21, 1992

He was found medically qualified for service upon examination. … The hearing officer found that service connection was not established for a psychiatric condition. Appellant appealed his claim to the BVA.

Samantha E. Carr v. Robert L. Wilkie

United States Court of Appeals for Veterans Claims · Apr 16, 2019

Carr, established basic entitlement to VA educational assistance benefits under 38 U.S.C. § 3461. … Carr later established entitlement to educational assistance benefits under chapter 33.

Rucker v. Brown

10 Vet. App. 67 · United States Court of Appeals for Veterans Claims · Jan 27, 1997

The letter stated that “radar emissions], microwave type radiation does not qualify for service connection under current provisions of the law, as it emits no ionizing radiation.” Ibid. … Young has treated the appellant at least since January 1989 (R. at 41, 61), the opinion is clearly based on more than conversations, and finally, “highly likely” is not “may or may not” terminology. See Tirpak v.