Case law

Cook v. Brown

6 Vet. App. 226 · United States Court of Appeals for Veterans Claims · Feb 16, 1994

States Court of Veterans Appeals, established under Article I of the U.S. … United States, 948 F.2d 711, 714 (Fed.Cir.1991) (“EAJA provides a specific waiver of sovereign immunity ... ”).

Wilson v. Principi

16 Vet. App. 509 · United States Court of Appeals for Veterans Claims · Dec 12, 2002

“EAJA is a limited waiver of sovereign immunity.” Cook v. Brown, 68 F.3d 447, 450 (1995). … It “lifts the bar of sovereign immunity for award of fees in suits brought by litigants qualifying under the statute,' but does so only to the extent explicitly and unequivocally provided.” Id.

Taylor v. McDonald

27 Vet. App. 158 · United States Court of Appeals for Veterans Claims · Nov 24, 2014

Section 3.307(a)(6)(iv), promulgated by VA in 2011, provides for a presumption of exposure to herbicides for qualifying veterans who served in the Korean DMZ; it does not establish a presumption of service connection. 1 See … The Act established 38 U.S.C. § 316 (now section 1116), providing that veterans with qualifying service in Vietnam are entitled to a presumption of exposure to herbicides and a presumption of service connection for specified

Joseph J. Froio v. Robert A. McDonald

27 Vet. App. 352 · United States Court of Appeals for Veterans Claims · May 28, 2015

The Secretary maintained at oral argument that, because EAJA is a waiver of sovereign immunity, it is the appellant's burden to establish that EAJA expressly allows an award for work performed in an educational setting and … Clearly such an approach is not contemplated by EAJA.

David L. Henderson v. James B. Peake

22 Vet. App. 217 · United States Court of Appeals for Veterans Claims · Jul 24, 2008

After considering and distinguishing several situations that do not qualify as jurisdictional time limits, 1 the Supreme Court held *219 unequivocally: “Today we make clear that the timely filing of a notice of appeal in … However, Bowles establishes that the premise upon which the Federal Circuit in Bailey and its progeny applied Irwin to the time period established in section 7266(a) can no longer stand.

Burris v. Principi

15 Vet. App. 348 · United States Court of Appeals for Veterans Claims · Dec 17, 2001

Burris’ DIC claim in January 1996 and, in March 1996, issued an SOC that again found insufficient evidence to establish service connection for the veteran’s cause of death. R. at 133-35, 143-46. Mrs. … Therefore, the Court holds that the Board’s finding with respect to this issue is not clearly erroneous. See Lovelace and Gilbert , both supra.

Jones v. Brown

6 Vet. App. 101 · United States Court of Appeals for Veterans Claims · Dec 28, 1993

As a waiver of sovereign immunity, the Act’s *105 terms must affirmatively establish liability, not merely fail to preclude it. The D.C. … But in Nordic Village, the Supreme Court held that, although the statute had waived sovereign immunity, it had failed to unambiguously establish and unequivocally express that the waiver extended to monetary recovery in bankruptcy

Smith v. Gober

14 Vet. App. 227 · United States Court of Appeals for Veterans Claims · Dec 22, 2000

Even assuming arguendo that the Secretary has the authority, he clearly has not delegated such authority. … It is well established that this Court is a court of law, and not of equity, and we cannot provide equitable relief. Taylor v. West, 11 Vet.App. 436, 440 (1998).

Smith v. Derwinski

2 Vet. App. 429 · United States Court of Appeals for Veterans Claims · May 21, 1992

Clearly, interviews and the preparation and presentation of claims before the VA must be done on an individual basis. … See 38 C.F.R. § 3.400 (b)(l)(ii)(B) (1991) (“extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim”).

Tremell L. Warren v. Robert A. McDonald

28 Vet. App. 194 · United States Court of Appeals for Veterans Claims · May 10, 2016

Warren argues that the Board's finding that he is not entitled to a higher disability rating under Diagnostic Code 7806 is clearly erroneous. … Given the evidence of record that establishes that Mr.

Sandstrom v. Principi

16 Vet. App. 481 · United States Court of Appeals for Veterans Claims · Nov 8, 2002

Id. *483 In August 1996, VA responded to the veteran’s letter and advised him that the “monthly compensation rates are established by law. … immunity for purposes of an increased COLA.

Sherman E. Morris v. Eric K. Shinseki

26 Vet. App. 494 · United States Court of Appeals for Veterans Claims · Mar 20, 2014

To hold otherwise, the Federal Circuit noted, “would lead to the peculiar result whereby non-qualifying heirs of veterans with fiduciaries could receive the veteran’s accrued unpaid benefits, while non-qualifying heirs of … Morris’s characterization of section 5121 as a “minor statute” that “established a limited exception to the Secretary’s long-established processes.” Appellant’s Br. at 20.

Simona Suguitan v. Robert A. McDonald

27 Vet. App. 114 · United States Court of Appeals for Veterans Claims · Oct 29, 2014

Section 1002(f) of the ARRA clearly establishes that FVECF payments are one-time payments, providing that "[t]he Secretary may not make more than one payment under this section for each eligible 3 Accrued … Congress is free to establish the scope of remedial legislation and has clearly done so with respect to the scope of survivors' entitlement to FVECF payments following the death of a qualifying person with eligible military

Kay M. Bowers v. Eric K. Shinseki

26 Vet. App. 201 · United States Court of Appeals for Veterans Claims · Feb 19, 2013

Bowers's active duty for training does not qualify as under 38 U.S.C. § 101(24). … Brown, 9 Vet.App. 145, 152-53 (1996) (holding that the Board's determination of "veteran status" is a question of fact that is subject to the "clearly erroneous" standard of review), and did not clearly err in finding that

Frankel v. Derwinski

1 Vet. App. 23 · United States Court of Appeals for Veterans Claims · Aug 17, 1990

Board of Veterans’ Appeals, or the Chairman of the Board found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege or immunity … If, upon consideration of the record, the Court cannot say the factual findings of the BVA are “clearly erroneous,” see 38 U.S.C.A. § 4061 (a)(4); Anderson v.

Clifford H. Cox v. Robert A. McDonald

28 Vet. App. 318 · United States Court of Appeals for Veterans Claims · Nov 7, 2016

Cir. 2014), together with "the plain language of § 1117 makes clear that pain alone, such as muscle pain or joint pain [experienced by the appellant], may establish an undiagnosed illness that causes a qualifying chronic … military operations, oil well fires, diesel exhaust, paints, pesticides, depleted uranium, infectious agents, investigational drugs and vaccines, and indigenous diseases, and were also given multiple immunizations

Cox v. Principi

15 Vet. App. 280 · United States Court of Appeals for Veterans Claims · Nov 14, 2001

Gen. 102, 106 (1922) (establishing that, where Veterans' Bureau made erroneous payment to person not entitled thereto and where another person is clearly entitled to that payment, it is "duty" of Director of Veterans' Bureau … Rather, both opinions cite Ruckelshaus for the general proposition that the United States is not liable for a payment absent a specific waiver of sovereign immunity.

McLendon v. Nicholson

20 Vet. App. 79 · United States Court of Appeals for Veterans Claims · Aug 7, 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 … Court, see 38 U.S.C. § 7261 (a)(4) (factual findings can be overturned only if clearly erroneous); Snyder v.

In re the Fee Agreement of Smith

4 Vet. App. 487 · United States Court of Appeals for Veterans Claims · Apr 8, 1993

Section 5904(d) does not establish an order of priorities for entitlements or claimants. … , the Government is immune from claims for attorney’s fees, ...” and waivers of sovereign immunity are to be strictly construed.

Wallin v. West

11 Vet. App. 509 · United States Court of Appeals for Veterans Claims · Oct 16, 1998

It possibly represents an abnormal immune response to certain infections, perhaps related to hereditary susceptibility.” DoRLANd’s at 1638. … medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by ... citing recognized medical treatises in its decisions that clearly