March 2026 - April 2026 Case Law Updates

United States Court of Appeals for Veterans Claims (Court)



Medlin v. Collins (24-3304)

Decided on April 6, 2026

In addressing whether the Board of Veterans’ Appeals (Board) provided an adequate statement of reasons or bases for its decision, the U.S. Court of Appeals for Veterans Claims (Veterans Court) revisited the seminal case Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Court reemphasized that, in satisfying its duty to provide an adequate statement of reasons or bases for its decision, the Board must articulate its reasoning with reasonable clarity, including identifying those findings it deems crucial to its decision and, through clear analysis, accounting for evidence it finds persuasive or unpersuasive. Here the Veterans Court affirmed the Board’s decision denying the Appellant’s entitlement to service connection for a psychiatric disorder, including bipolar disorder and depression because the Veterans Court found that the Board supported its decision with adequate reasons or bases. Specifically, the Veterans Court found that the Board’s reasons and bases were plausibly supported by the record as the Appellant’s in-service records did not support the contention that his in-service performance declined or his failure to meet weight standards was an indication of mental health symptoms because he was promoted and received highest marks regarding primary job duties shortly before his discharge. Further, the Board found that a letter from the Appellant’s treating psychiatrist was unreliable because it was written to assist the Appellant in pursuit of his claim for benefits and premised on the Appellant’s statements. In Judge Bartley’s dissent, she strongly encouraged the Court to not “abdicate [its] appellate authority rather than analyze and rigorously review VA’s compliance with the law.”

U.S. Court of Appeals for Federal Circuit

Mackey v. Collins (24-1854) (CAVC No. 22-5693)

Decided on March 30, 2026

In addressing whether the U.S. Court of Appeals for Veterans Claims (Veterans Court) properly affirmed the Board of Veterans’ Appeals (Board) denial of the Appellant’s SMC claim under § 1114(s), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) analyzed whether the phrase “a service-connected disability” under § 1114(s) could be interpreted “to encompass all TDIU ratings, regardless [of[ whether based on one underlying disability or multiple underlying disabilities.” The Federal Circuit ultimately rejected the Appellant’s argument that for purposes of § 1114(s), the Appellant with TDIU could combine various disabilities to constitute a service-connected disability under § 1114(s). The Federal Circuit specifically analyzed the language under § 1114(s), which provides, “If the veteran has a service-connected disability rated as total . . . ,” and determined that the use of the article “a” and the singular term “disability” suggests that Congress intended to reference one disability rather than multiple disabilities. The Federal Circuit further determined a TDIU rating predicated on multiple disabilities cannot be combined to meet the “a service-connected disability rated as total” requirement under § 1114(s).

February 2026 - March 2026 Case Law Updates

U.S. Court of Appeals for Federal Circuit

Janich v. Collins, (22-5960)

Decided on March 5, 2026

The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the Court of Appeals for Veterans Claims (Veterans Court) erred in determining that a lack of evidentiary basis for the VA’s finding that the veteran could perform certain occupations was per se harmless error. The Federal Circuit clarified that under Smith v. Shinseki, VA may be required in some cases to identify particular jobs that a veteran is capable of performing in order to determine whether the veteran is able to secure or follow substantially gainful employment for purposes of TDIU. When VA makes this finding without a sufficient evidentiary basis, the harmless error analysis turns on whether the VA relied on the identification of the particular occupation in reaching its decision. If VA makes a finding without evidentiary support and relies on that finding in deciding the claim, the error cannot be said to be harmless.

United States Court of Appeals for Veterans Claims (Court)



Loomis v. Collins (23-4348)

Decided on July 15, 2025

The appellant appealed a Board of Veterans’ Appeals decision that denied education assistance benefits for a private pilot license under 38 U.S.C. § 3672 because the course was not offered by an institution of higher learning as set forth by 38 U.S.C. § 3680A(b). Panel was convened, with an oral argument to consider whether the limitation that a course be offered by an institution of higher learning applies to the provision constructively approving certain flight training courses. The Court held that it does because the “subject to” clause in 38 U.S.C. § 3672(b)(2)(A) says that it is subordinate to 38 U.S.C. § 3680A and as such, the IHL requirement must apply on top of constructive approval. The Court also considered whether 38 C.F.R. § 21.4252(c), which prohibits VA from approving any private pilot training, conflicts with section 3672(b)(2)(A). The Court determined that, in light of its holding regarding statutory interpretation, it did not need to reach the question of the regulation’s validity because he did not meet the IHL requirement.

Judge Laurer issued a dissenting opinion and stated that he would hold that Post-9/11 GI Bill benefits may extend to a flight training course offered at a private school if it's approved by a state approving agency or VA and satisfies the requirements of 38 U.S.C. § 3672(b)(2)(A)(ii). I'd also set aside 38 C.F.R. § 21.4252(c)(1) as inconsistent with § 3672(b)(2)(A)(ii).

Wiggins v. Collins (24-4591)

Decided on August 1, 2025

The Veteran petitioned the U.S. Court of Appeals for Veterans claims for extraordinary relief in the form of a writ of mandamus ordering the Board to adjudicate her administrative appeal within 30 days. The administrative appeal challenged the denial of service connection for post-traumatic stress disorder (PTSD) and the rating assigned for major depressive disorder (MDD). The panel assessed whether and how the Court’s consideration of the petition is impacted by 38 U.S.C. § 7112(b), which mandates that VA employ special procedures when adjudicating claims involving military sexual trauma (MST). The Court denied the petition holding that section 7112(b) does not compel expedited adjudication of such cases, even though MST can potentially serve as a relevant consideration for the Board in assessing whether to advance an appeal on the docket under 38 U.S.C. § 7107(b) or for this Court in evaluating Agency delay under the "TRAC" factors.

Judge Jacquith dissented finding that Congress's amendment of 38 U.S.C. § 7112 in December 2022 plainly requires expedited treatment of claims involving MST and stating that he would grant the petitioner’s petiton to the extent that it seeks expedited treatment.

Bilharz/Pinto Jr. v. Collins (22-6158 and 23-7931)

Decided on August 14, 2025

At panel, the U.S. Court of Appeals for Veterans Claims considered whether, for appeals processed under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), a claimant's right to fair process in VA's administrative appeal system (or the right to due process of law under the Fifth Amendment to the Constitution) requires the same Board member who conducts a Board hearing to also render a decision of the Board in a given case. The Court held that neither the Due Process Clause nor the fair process doctrine (if different) prohibits the practice of having different Board members conduct a hearing and render a decision on a claim for benefits.

The Court also considered whether changes to VA's regulations implementing the AMA abrogated the duties we recognized in Bryant v. Shinseki, 23 Vet.App. 488 (2010). The Court held that while the regulatory underpinning has changed from the one recognized in Bryant for legacy appeals, the substance of a Board member's duties when conducting a hearing remain the same.

United States Court of Appeals for the Federal Circuit (Federal Circuit or Fed. Cir.)

Wright v. Collins (20-2154)

Decided August 1, 2025

The U.S. Court of Appeals for the Federal Circuit reviewed CAVC’s affirmance of a veteran’s appeal wherein he requested for compensation for his adult child under 38 U.S.C. § 1115(1)(F) on the ground that he was precluded by 38 U.S.C. § 3562(2) from receiving that compensation once his daughter elected to receive direct benefits pursuant to the Survivors’ and Dependents’ Educational Assistance (“DEA”) program. The Federal Circuit considered the following for statutory interpretation: (1) whether section 3562 bars a disabled veteran from receiving additional compensation under section 1115(1)(F) once the veteran’s child begins receiving DEA benefits and (2) whether, assuming that section 3562 does operate in this way, the bar may be lifted when the disabled veteran’s child exhausts his or her DEA benefits.

The Federal Circuit respectively held (1) that the nonduplication provision of section 3562 bars a disabled veteran from receiving additional compensation under section 1115(1)(F) once his or her child elects to receive DEA benefits and (2) the statute clearly imposes a permanent bar on a veteran’s receipt of additional compensation under section 1115(1)(F) once his or her child begins to receive DEA benefits.



United States Court of Appeals for Veterans Claims (Court)



Concepcion-Maldonado v. Collins, (22-7476)

Decided on June 23, 2025

The Court of Appeals for Veterans Claims (Veterans Court) held that a VA grant in a modernized claim can’t moot a legacy claim for the same benefit when an earlier effective date is possible through the legacy appeal. The Veterans Court left open the possibility that, in some cases, the Board may consider a pending appeal after an AOJ grant and conclude that there’s no longer a controversy, as was the case in Henderson v. West where both the claim on appeal and the claim granted by the AOJ were in the legacy system. However, the Veterans Court reiterated that an appeal is not moot where the claimant can only receive full relief by continuing to pursue the claimant’s pending appeal—a nuanced inquiry that requires analyzing the details of the case. Here, the Veterans Court determined Mr. Concepcion-Maldonado’s legacy claim for service connection for a neck disability presented a live controversy and remanded the claim to the Board for readjudication. Although Appellant was granted service connection for his neck disability under the AMA in July 2023 with an effective date of January 25, 2023, Appellant’s claim under the legacy system was submitted on July 12, 2016. Therefore, the Veterans Court found that it could provide additional relief here: the opportunity for Appellant to seek an earlier effective date that aligns with his original claim in the legacy stream

Adams v. Collins, (23-5064)

Decided on July 8, 2025

The Veterans Court rejected the G.C. opinion’s interpretation that obesity is per se not a disability for purposes of 38 U.S.C. § 1110 because the opinion’s reasoning that obesity does not impair earning capacity of most obese individuals contradicts its finding that obesity can physically and socially impair some people and thus does not comport with Saunders’s definition of disability. The G.C. opinion’s interpretation that obesity is not considered a “disease” that can satisfy the in-service event requirement for direct service connection under section 1110 was held to be persuasive, as it was supported by references to medical literature and the Secretary’s exercise of gap-filling authority here was permissible. However, the Veterans Court, relying on Allen v. Brown and Spicer v. McDonough, did not defer to the G.C. opinion’s interpretation of 38 C.F.R. § 3.310 because in the context of secondary service connection under § 3.310(a), a “disease” refers to a condition that has already been service-connected, so whether obesity itself is a disease or injury for purposes of section 1110 is irrelevant. In Mr. Adams’s case, the Court remanded Mr. Adams’s claim for service connection for obesity as secondary to PTSD and dismissed the remainder of the appeal. 

United States Court of Appeals for the Federal Circuit (Federal Circuit or Fed. Cir.)

Deal v. Collins, (21-6401)

Decided on June 27, 2025

The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the VA’s delay in addressing whether evidence submitted during the appeal period of a prior claim is new and material under 38 C.F.R. § 3.156(b) does not automatically entitle the claimant to the benefit of an earlier date of application for purposes of determining an effective date. The Federal Circuit reiterated that if VA has not yet provided a responsive determination on whether a record submitted within the relevant period is new and material under § 3.156(b), the proper course of action is for the claim to be remanded for the VA to make such a determination. The Court clarified that under Bond v. Shinseki and Beraud v. McDonald, the claim waiting such a responsive determination remains “open” for the limited purpose of requiring VA to make the responsive determination; only if VA finds the evidence to be new and material is the evidence treated as having been filed in connection with the prior claim. 



United States Court of Appeals for Veterans Claims (Court)



Willen v. Collins, (23-1547)

(Decided May 21, 2025)

The Veteran filed an initial claim for major depressive disorder (“MDD”) in January 2014. In September 2014, the VA Regional Office granted service connection and assigned a thirty percent rating for his MDD. In March 2015, the VA received Mr. Willen’s social security administration documents and medical records supporting his request for an increased rating of the initial claim. The VA did not respond. In 2017, Mr. Willen again requested an increased rating for his MDD. The Board increased Mr. Willen’s MDD rating to seventy percent and granted TDIU with an effective date of April 2016 under 38 C.F.R. § 3.400(o)(2). The Veterans Court found that the September 2014 initial rating decision never became final because Mr. Willen timely submitted new and material evidence under 38 C.F.R. § 3.156(b). As for the Board decision on appeal, the Veterans Court found that the decision was final even if it was not in the correct format because it rejected Mr. Willen’s argument that his rating should date back to January 2014 when the initial claim was filed.

Perkins v. Collins, (24-6515)

(Decided on May 16, 2025)

The veteran served in active duty in the U.S. Air Force from August 12, 2014 to August 11, 2020. After service, she attended Wesleyan University and sought use of her Post-9/11 education benefits. The VA advised the veteran that she could no longer receive MGIB benefits if she wanted to receive or use her Post-9/11 benefits. The veteran appealed this determination to the Board of Veterans Appeals and argued that her 6-year period of active-duty service entitled her to benefits under both programs. In applying Rudisill the Veterans Court agreed with the veteran and determined that her length of service rather than quantity of periods of service determined whether the veteran could receive benefits under both programs. Ultimately, a veteran that qualifies for Post-9/11 education benefits may also receive MGIB benefits as long as the length of service qualifies the veteran for the programs without counting the years of service twice.

United States Court of Appeals for the Federal Circuit (Federal Circuit or Fed. Cir.)

Herrington v. Collins, (23-2358)

(Decided on May 30, 2025)

The Federal Circuit affirmed the Veterans Court’s application of the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard of review in evaluating whether the VA properly assigned an analogous diagnostic code to rate an unlisted disability under 38 C.F.R. § 4.20. Ultimately, the Federal Circuit affirmed the Veterans Court’s determination under the “arbitrary and capricious” standard of review that the VA properly assigned a thirty percent evaluation for GERD by analogy to Diagnostic Code 7346 for hiatal hernia.



United States Court of Appeals for Veterans Claims (Court)



Loyd v. Collins, (22-5998)

(Decided May 8, 2025)

The Appellant filed an initial claim for a left eye disability and VA denied the claim in a November 2019 decision. Within one year of that decision, Appellant chose to file a supplemental claim but did not include new and relevant evidence. VA denied the claim because the Appellant did not submit new and relevant evidence. Appellant appealed to the Board of Veterans Appeals (Board), and the Board denied readjudication of the claim because Appellant had not submitted new and relevant evidence. The Appellant appealed to the Court of Appeals for Veterans Claims (Court) and argued that if he filed his supplemental claim within one year of the agency of original jurisdiction decision, he did not have to include new and relevant evidence. The Court found that Congress explicitly provided that the supplemental claim that a claimant could pursue under section 5104C(a) was subject to section 5108. And that section expressly requires the submission of new and relevant evidence before any action on the merits is appropriate. 

Skaar v. Collins, (24-5887)

(Decided April 29, 2025)

The Veteran deployed to Palomares Spain to clean up radioactive plutonium dust, and he filed a claim for skin cancer associated with his exposure. VA denied benefits and he appealed to the Board. He also filed a motion to aggregate a class of all U.S. veterans who were present at the cleanup. The Board denied the motion to aggregate, explaining that the Board does not have the legal authority to aggregate claims or certify a class of claims. The Court dismissed the appeal finding that it does not have jurisdiction, because the Board decision at issue did not grant or deny a benefit or address an essential element of a claim citing its decisions in Heller and Clark. 

United States Court of Appeals for the Federal Circuit (Federal Circuit or Fed. Cir.)

Amezquita v. Collins, (23-1975)

(Decided May 5, 2025)

The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed the Court of Appeals for Veterans Claims (Court) decision finding that the Court properly interpreted § 1111.The question raised in this appeal is whether the presumption of soundness applies when an asymptomatic preexisting condition was noted upon service entry. Mr. Amezquita had surgery on his right shoulder prior to entry into service. It was noted on his military entrance physical as asymptomatic. While in service, he was evaluated for injury to the shoulder after experiencing a popping. After service, he applied for benefits for a right shoulder condition. In denying the claim, the Board noted that the presumption of soundness did not apply and found that the Veteran had not demonstrated that his shoulder condition was aggravated by his military service. The Court affirmed relying on its holding in Verdon v. Brown, 8 Vet. App. 529 (1996). The Federal Circuit agreed with the Court’s decision affirming that section 1111 does not limit “defects noted at the time of examination, acceptance and enrollment to only conditions symptomatic at that time.” 

Hatfield v. Collins, (23-2280)

(Decided May 2, 2025)

The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed the Court of Appeals for Veteran Claims (Court) decision finding that the Board of Appeals for Veterans Claims (Board) did not commit a clear and unmistakable error (CUE), in a 1980 decision denying Appellant’s negligence claim. Mrs. Hatfield is the surviving spouse of a Veteran who passed away in 1979 after receiving radiation treatment at the VA for lymphoma. In 1979, she filed a claim for benefits under 38 U.S.C. § 351 (the precursor to §1151). The Board denied the claim because the VA provided adequate medical care. In 2010, she filed to re-open her claim for benefits under §1151 arguing that the VA failed to provide informed consent as required in 38 C.F.R. § 3.361(d)(1)(ii) which was enacted in 2004. The Board again denied her appeal. She appealed to the Court who reversed the Board decision finding that VA did not obtain informed consent. After winning her case for negligence, she filed a motion to revise the 1980 Board decision based on CUE. The Board denied the motion and the Court affirmed finding, “because in 1980 there was no suggestion in the statutory text or legislative or regulatory histories of either § 351 or §4131 that the VA’s failure to obtain a patient’s informed consent before administering a treatment amount to a compensable negligence claim.” In affirming the Court’s holding that there was not CUE in the 1980 Board decision, the Federal Circuit reviewed the text, legislative history and regulatory history of the informed consent provision in 38 U.S.C. § 4131 and negligence provision in 38 U.S.C. § 351 and found that none of it establishes that it is undebatable that, in 1980, the VA’s failure to obtain a patient’s informed consent before administering medical treatment amounted to a compensable negligence claim. 

Steele v. Collins, (23-2049)

(Decided May 1, 2025)

The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed the Court of Appeals for Veterans Claims (Court) decision finding that the Board of Veterans Appeals (Board) correctly applied the Cogburn factors in finding that a claim for headaches had been implicitly denied when the VA denied a claim for the residuals of a head injury. The Veteran argued that his 1991 claim for headaches remained pending because he hadn’t received proper notice, and the Board found that the headache claim had been implicitly denied. The Court affirmed. The Veteran appealed to the Federal Circuit arguing that under the Federal Circuit’s holding Ruel, the notice must include the reasons for the implicit denial. The Federal Circuit held, “it makes little sense to require an express statement of reasons separately addressing a claim that is not explicitly discussed. Rather the veteran receives sufficient notice of both the fact of the implicit denial and the reasons therefore when the stated reasons for the explicitly decided claim would be reasonably be understood to also extend to the implicitly denied claim.” 

United States Court of Appeals for Veterans Claims (Court)



Chisholm v. Collins, (22-7028)

(Decided March 13, 2025)

While this case involves the propriety of the Board of Veterans’ Appeals’ (Board) denial of the payment of legal fees based on past-due Department of Veterans Affairs (VA) benefits, the U.S. Court of Appeals for Veterans Claims’ (Court) decision is significant for holding that, while a supplemental claim needs to be filed on a form prescribed by the Secretary of Veterans Affairs (Secretary), it need not be filed on a supplemental claim form (VA Form 20-0995). The Court concluded that since a request for a claim for total disability based on individual unemployability (TDIU) is not a standalone claim but an attempt to obtain the correct (higher) rating, an application for TDIU may serve as a supplemental claim when filed after VA has already denied higher ratings for the disabilities at issue.

Ripley v. Collins, (21-0947)

(Decided March 24, 2025)

In response to claimants that have filed an intent to file (ITF), the Department of Veterans Affairs (VA) sends a letter informing them that the appropriate forms are available on VA’s website. Petitioner, Mr. Burton R. Ripley, requested the U.S. Court of Appeals for Veterans Claims (Court) to mandate that VA automatically provide him and the claimants falling within his proposed class paper copies of instructions and forms necessary to apply for VA benefits. Petitioner argued that claimants seeking VA benefits should not have to take any extra steps to secure paper forms, and electronic access may not be optimal or possible for all claimants, particularly the elderly, indigent, and those claimants who lack computer or internet access. The Court dismissed the writ and request for class action, finding that Mr. Ripley, who had access to a computer and the internet, was not harmed by VA’s actions or inactions and therefore lacked standing. However, Judge Jaquith wrote a dissent pointing out that the petition seeks enforcement of VA’s statutory obligations to provide Veterans with the forms necessary to seek VA benefits and that the majority’s opinion imposes requirements beyond fulfillment of the law on Veterans while excusing VA's persistent, blatant violation of its statutory obligation. Interestingly, the dissent included the entire draft panel order that the en banc majority prevented the panel from issuing.

Johnson v. Collins, (23-7589)

(Decided March 26, 2025)

In 2016, Mr. Johnson filed claims for service connection for diabetes mellitus, bilateral lower extremity peripheral neuropathy, and hypertension, all based on herbicide exposure. Mr. Johnson appealed the denial of those claims to the Board of Veterans’ Appeals (Board). After passage of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Mr. Johnson filed supplemental claims for the same disabilities. The Regional Office (RO), in March 2023, granted Mr. Johnson's supplemental claims, effective August 10, 2022, the date of enactment of the PACT Act. On December 11, 2023, the Board determined Mr. Johnson's pre-PACT Act claims were moot finding that the RO’s decision resolved the claims. The U.S. Court of Appeals for Veterans Claims (Court) held that Mr. Johnson’s claims involve two distinct claim streams. The Court also noted that claims based on liberalizing laws, such as the PACT Act, as it pertains to Mr. Johnson, are separate and distinct claims from pre-PACT Act claims. The Court held that once a claim has been appealed to the Board but not finally resolved, a subsequent RO decision in a separate claim stream cannot resolve the pending Board appeal. The Court concluded remand was required for the Board to resolve the pre-PACT Act claim stream to completion.

Westervelt v. Collins, (23-0024)

(Decided April 8, 2025)

U.S. Army Veteran, Edward T. Westervelt, was awarded a 70 percent rating for traumatic brain injury (TBI) and a separate 30 percent rating for post-traumatic stress syndrome (PTSD). On review, a Decision Review Office (DRO) found that the Regional Office (RO) committed a clear and unmistakable error (CUE) in awarding the separate rating for PTSD, when the record showed it was impossible to differentiate Mr. Westervelt’s TBI and PTSD symptoms. Mr. Westervelt sought reinstatement of the 30 percent award. The U.S. Court of Appeals for Veterans Claims (Court) ruled that the Board of Veterans’ Appeals (Board) decision on appeal is incomplete and remanded the case for the Board to address all issues before it, including whether there was CUE and the proper rating for Mr. Westervelt’s PTSD.



United States Court of Appeals for the Federal Circuit (Federal Circuit or Fed. Cir.)

Williams v. Collins, (23-1840)

(Decided March 19, 2025)

The United States Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Mr. Williams’ appeal finding that the U.S. Court of Appeals for Veterans Claims (Court) properly interpreted 38 C.F.R. 3.156(b). The question raised in this appeal is whether evidence identified and discussed in a Statement of the Case (SOC), but not in a rating decision, affects the finality of the Regional Office’s (RO) adverse decision. Here, the Federal Circuit determined that nothing in the language of 38 C.F.R. 3.156(b) states that the Department of Veterans Affairs (VA) cannot satisfy its obligations in a SOC as long as there is some indication that VA determined whether the evidence was new and material and that the evidence was considered in evaluating the pending claim. The Federal Circuit found the Court did not err in finding VA complied with properly applied 38 C.F.R. 3.156(b).

Roseberry v. Collins, (23-2288)

(Decided March 31, 2025)

After the proceedings before the U.S. Court of Appeals for Veterans Claims (Court), counsel for Mr. Rosenberry submitted an application for attorneys fees under the Equal Access to Justice Act (EAJA). The Court requires that an EAJA application be filed no later than 30 days after the Court’s judgment becomes final. The Court docketed the mandate on October 15, 2021, but it was effective October 12, 2021, as stated on the face of the order. Relying on the docketed date, Mr. Rosenberry’s counsel filed the EAJA application one day late. The Court found the application was untimely and that equitable tolling was unwarranted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Mr. Rosenberry’s appeal, finding that ordinary excusable neglect does not warrant equitable tolling. The Federal Circuit found the Court properly denied the EAJA application as untimely because Mr. Rosenberry failed to meet the extraordinary circumstances standard to justify his late EAJA application.

Smith v. Collins, (23-1749)

(Decided April 4, 2025)

The United States Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Mr. Smith’s appeal finding the matter moot. After Mr. Smith’s Veteran father passed away in 2016, Mr. Smith substituted in his father’s appeal to the Board of Veterans’ Appeals (Board). In 2021, the Board granted an earlier effective date of 2007 for the Veteran’s post-traumatic stress disorder (PTSD) but determined that Mr. Smith, as an adult, was only entitled to receive any accrued benefits necessary to reimburse costs incurred in the last sickness or burial of his father. Mr. Smith filed an appeal with the U.S. Court of Appeals for Veterans Claims (Court)requesting an even earlier effective date based on newly associated service department records pursuant to 38 C.F.R. § 3.156(c). The Court affirmed the Board and found 2007 was the earliest effective date possible. Here, the Federal Circuit determined that since Mr. Smith, as an adult, was only entitled to receive accrued benefits necessary to reimburse expenses incurred in the last sickness or burial of his father, the appeal is moot because even if an effective date earlier than 2007 was warranted, any increase in unaccounted-for benefits would not change the amount of reimbursement already received by Mr. Smith. 

Supreme Court of the United States (SCOTUS)

Bufkin v. Collins, (23-713)

(Decided on March 5, 2025)

Pursuant to 38 U.S.C. § 5107(b), when, after consideration of all evidence and material on record, there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. This is often referred to as the benefit of the doubt rule and it applies to any veteran’s claim when evidence regarding any issue material to a service-related disability claim is in approximate balance. In this case, the Board determined that the evidence was not in approximate balance and therefore the benefit of the doubt rule did not apply. Under 38 U.S.C. § 7261(a), the Veterans Court reviews legal issues de novo and factual issues for clear error. And under §7261(b)(1), the Veterans Court must “take due account” of the VA’s application of the benefit-of-the-doubt rule. Petitioners contended that VA’s determination that the evidence on a particular material issue is not in approximate balance is a legal inquiry subject to de novo review. SCOTUS disagreed, holding that approximate balance determinations require case-specific factual review warranting clear-error review. Elaborating, SCOTUS held that the approximate-balance determination involves two steps. First, VA reviews each item of evidence and assigns weight to it, which is purely a factfinding inquiry reviewed only for clear error. Second, VA determines whether the evidence is in approximate balance. As this step includes both legal and factual components it is at most a mixed question and the appropriate standard of review for a mixed question depends “on whether answering it entails primarily legal or factual work.”

United States Court of Appeals for Veterans Claims (CAVC)

Lorio v. Collins, (22-1323)

(Decided on March 6, 2025)

Appellant, the surviving spouse of Army veteran Milton Lorio, appealed a Board decision finding that VA properly withheld retroactive payment of dependency and indemnity compensation (DIC) based on her receipt of Survivor Benefit Plan (SBP) benefits, which for Appellant, could not be received concurrently. The Court did not reach the issue of whether VA had legal authority to withhold DIC payments to prevent concurrent receipt of both as the Court found that the Board denied Appellant fair process. Specifically, while the parties agreed that the Board relied on inapplicable legal authority to render its decision, the Secretary’s argument revolved around Appellant’s application for SBP and a waiver therein. However, this application was not before the Board when it rendered its decision and only obtained by the Secretary in preparing his brief. The Court remanded the case for the Board to consider Appellant’s SBP application and specifically address the parties’ competing arguments regarding the import of that application. The Court held that to "cross out" most of the Board decision and decide an appeal in the Secretary’s favor based on evidence that was not before the Board especially given an acknowledgment that the Board did not understand the SBP-DIC offset issue when it rendered its decision is a violation of Appellant’s right to fair process. Finally, the parties agreed that the accounting conducted by the Board was incorrect, which must be done on remand as it is a factual inquiry that the Court cannot address in the first instance.

Ingram v. Collins, (23-1798)

(Decided on March 12, 2025)

Veteran Carlton Ingram appealed a Board decision denying entitlement to a back disability evaluation greater than 20% and left ankle disability evaluation greater than 10%. The Court was asked to address how Jones (David J.) v. Shinseki, 26 Vet. App. 56, 63 (2012), applies when evaluating Mr. Ingram's musculoskeletal conditions. Jones requires the Board to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use. The Secretary argued that Jones should not apply because Court precedent already required evaluation of range of motion and that Jackson v. McDonough (37 Vet. App. 87, 92 (2023) prohibits the Board from considering factors outside the rating criteria. Initially, the Court held that Jackson did not alter Jones or impose any checks or changes to the Court’s caselaw concerning evaluation of disabilities that are treated with medication. Second, the Court held that Jones complements caselaw concerning the evaluation of musculoskeletal conditions because VA could not assess a veteran's worst-case scenario, including a flare up, if it was also factoring in the beneficial effects of medication. Thus, Jones applies in the evaluation of musculoskeletal disabilities where the relevant DC does not reference medication as a factor in evaluation.  

United States Court of Appeals for the Federal Circuit (Fed. Cir.)

Smith v. Collins, (23-2213)

(Decided on March 10, 2025)

The United States Court of Appeals for the Federal Circuit determined that it lacked jurisdiction to hear Veteran Smith’s challenge to a determination that VA rebutted the presumption of soundness and showed by clear and unmistakable evidence that his retinitis pigmentosa did not increase in severity during service. Specifically, he challenged the sufficiency of the medical opinion relied upon as the VA physician was asked whether it was “at least as likely as not that there was increase in the severity,” which is insufficient to meet the clear and unmistakable standard. The Federal Circuit determined that it lacked jurisdiction as this contention amounted to a disagreement with the weighing of evidence as both the Board and Veterans Court found the medical opinion sufficient to meet the clear and unmistakable standard. Veteran Smith also argued that the medical opinion impermissibly drew an inference based upon the absence of evidence, which again cannot meet the clear and unmistakable standard. The Federal Circuit determined that it lacked jurisdiction as both the decision from the Veterans Court and the Board did not do what Veteran Smith contended, which is to expressly or implicitly treat an absence of evidence as constituting clear and unmistakable evidence as both decisions expressly ruled that they were based on affirmative evidence.

United States Court of Appeals for Veterans Claims (CAVC)

Karen R. Shorette v. Douglas A. Collins

Decided on February 6, 2025

This case presents a long and complicated history stemming from benefits distributed through the VA’s fiduciary program. The petitioner is and has been the legal guardian and VA fiduciary for the Veteran since December 2008. In March 2018, VA suspended payment of the Veteran’s benefits after a doctor alleged the petitioner had been misusing the veteran’s funds. The VA then appointed a different fiduciary. Despite a prior fiduciary agreement that allocated money from the veteran’s benefits each month to pay for the family’s expenses, none of the veteran’s benefits were being allocated for this purpose. This continued even after the petitioner was found to not have misused any of the veteran’s benefits. The petitioner first requested the Court to intervene in April 2022. See Shortte v. McDonough (22-4698). After an unsuccessful attempt to resolve the issues regarding the withheld benefits, the petitioner brough this issue to the Court for a second time. On December 19, 2023, the petitioner filed for extraordinary relief in the form of a writ of mandamus. Over a year later, on January 17, 2025, the petitioner filed a motion to withdraw the petition due to the VA reimbursing her the agreed amount of familial benefits. The Court granted this petition.

U.S Court of Appeals for the Federal Circuit (Fed. Cir.)

Clinton Spiles v Douglas A. Collins

Decided February 7, 2025

The Veteran was granted service connection for bilateral shoulder subluxation. After this decision became final, the Court of Appeal for Veterans Claims (CAVC) decided Burton v. Shinseki, 25 Vet. App. 1 (2011), which deferred to the VA’s interpretation of 38 C.F.R §4.59. The Veteran filed a motion alleging clear and unmistakable error (CUE) contending that the newly interpreted §4.59 would have required the VA to assign him a higher rating for his shoulder disability. The CAVC affirmed the Board of Veterans’ Appeals denial of the CUE motion holding at the time of the Veteran’s original rating decision, §4.59 was not undebatably understood to apply to other cases other than arthritis and there was no error. The CAVC based this decision on it’s on previous cases holding a CUE motion must be analyzed based on the law as it was understood at the time of the original decision and cannot arise from a subsequent change in the law or interpretation thereof to attack a final VA decision. On appeal to the Federal Circuit, the Veteran argued that the first time a regulation is interpreted by an authority that binds the VA this tells what the law has always been and that interpretation controls how the law should have been applied in all prior decisions. The Federal Circuit affirmed the CAVC’s decision holding general principles of finality prohibit a new judicial pronouncement from being applied retroactively to attack a final VA decision and CUE must be based on the law at the time of the decision.

United States Court of Appeals for Veterans Claims (CAVC)

Ley v. McDonough, 23-1547

Decided on January 2, 2025

To address the issue on whether a claimant may receive an effective date for benefits earlier than provided under 38 U.S.C. § 5110 and based on either the doctrine of equitable estoppel or constitutional principles, the Court of Appeals for Veterans Claims (Veterans Court) adopted, through panel decision, the narrow exception that Taylor v. McDonough, described. Specifically, the Veterans Court found that section 5110 is not subject to equitable estoppel. However, it could be subject to a constitutional right-of-access violation, but that requires an appellant to show that his opportunity to litigate an underlying legal entitlement is no longer available due to active interference on the part of the government that is undue. The appellant must also identify a remedy that is within the Veterans Court’s power and not available elsewhere or by other means. Where unconstitutional interference is found, an asserted justification by the government must pass strict scrutiny. Here, the Veterans Court affirmed the December 2022 Board decision denying Mr. Ley entitlement to an earlier effective date because the Veteran’s equitable estoppel argument is directly foreclosed under Taylor v. McDonough, and Taylor v. McDonough, does not establish a binding rule about as-applied constitutional challenges under section 5110. However, Judge Jaquith wrote a dissent disagreeing with the majority’s conclusion that section 5110 is not unconstitutional as applied to Mr. Ley’s case.

Conyers v. McDonough, 17-4423

Decided on January 8, 2025

Through panel review and after the issuance of Euzebio v. Wilkie (Euzebio I), and Euzebio v. McDonough (Euzebio II), the Court of Appeals for Veterans Claims (Veterans Court) found that VA constructively possesses a document when: (1) the Secretary has actual or constructive knowledge of the document, (2) the document tends to prove or disprove a material fact, and (3) the document predicates the Board of Veteran’s Appeals (Board) decision. Additionally, the Veterans Court emphasized that for a document to be constructively before the Board, records must be “relevant and reasonably connected’ to the veteran’s claim.” See Euzebio v. Mcdonough (Euzebio II), 989 F.3d 1305 (Fed. Cir. 2021). Here, the Veterans Court denied Mr. Conyers’s motion disputing the contents of the record before the agency (RBA) finding that a majority of the documents sought to be included in the RBA did not meet the relevant and reasonable test for constructive possession.

U.S Court of Appeals for the Federal Circuit (Fed. Cir.)

Winterbottom v. McDonough, 23-2097

Decided on December 27, 2024

The United States Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Mr. Winterbottom’s appeal because the decision that he challenged is a non-final remand order and does not meet the Williams v. Principi, finality exception criteria. Initially, Mr. Winterbottom sought an increased disability rating, for his posttraumatic stress disorder (PTSD). However, exchanges between Mr. Winterbottom and the Board of Veterans’ Appeals (Board) judge, during the June 2021 Board hearing, formed the basis for Mr. Winterbottom’s complaint of judicial bias. The May 2022 Board decision denied an increased rating and subsequently the Court of Appeals for Veterans Claims (Veterans Court) found the Board had not exhibited any bias that warranted reassignment on remand. Here, the Federal Circuit declined to extend the Williams v. Principi, criteria and reasoned that Mr. Winterbottom may either file a mandamus petition to raise his claims of judicial bias or wait until there is an appealable final judgment in his case over which the Federal Circuit would have jurisdiction.

Rodenhizer v. McDonough, 23-1377

Decided on December 30, 2024

The United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed the proper procedures to be followed when a veteran passes away while his or her case is pending before the Court of Appeals for Veterans Claims (Veterans Court) and there is a fact question as to eligibility of a successor seeking accrued benefits. Here, the Veteran, Mr. Rodenhizer, passed away during the pendency of his appeal before the Veterans Court. His mother, Ms. Rodenhizer, subsequently filed a motion for substitution at the Veteran’s Court. Since she filed her motion at the Veterans Court, and not the VA, the Federal Circuit vacated and remanded the case with instructions to hold the appeal and motion to substitute in abeyance pending the outcome of proceedings before the VA.

November 2024 - December 2024 Case Law Updates

U.S. Court of Appeals for Veterans Claims

Martin D. Spigner II v. Denis McDonough, 22-2636

Decided November 7, 2024

This case went to panel for the Court of Appeals for Veterans Claims to examine the role of 38 U.S.C. § 7113(b), 38 C.F.R. § 20.302, and 38 C.F.R. § 20.704(d) together and determine whether the Board erred when it refused to accept the Veteran’s evidentiary submission from September 2021 on the basis that it was received outside the applicable evidentiary window. The Court ruled that § 20.704(d) did not apply because VA rescheduled the hearing, not the Appellant. As a result, § 20.302(c) controlled and directs the Board to consider the evidence that was submitted within 90 days of the scheduled hearing.

Richard Heller v. Denis McDonough, 24-3504

Decided November 21, 2024

After panel review, the Court of Appeals for Veterans Claims granted the Petitioner’s request for a writ of mandamus. The Court was asked to clarify whether and in what context it can review determinations by the Board on requests for cases to be advanced on the docket (AOD). The Court ruled initially that it has jurisdiction to issue a writ on AOD denials if VA’s action or inaction unreasonably delays the claim because the Petitioner’s claim for benefits could be the subject of a Board decision appealable to the Court. Specific to the Petitioner, the Court evaluated the TRAC factors and concluded that in light of the unique conditions surrounding the case involving evidence both of suicidal ideations and economic hardships, a writ was warranted to advance the Veteran’s case. The Court determined the Veteran had “a lack of alternative means, a clear and indisputable right to a writ, and issuance of a writ is warranted”, as required by case precedent.

U.S. Court of Appeals for the Federal Circuit

Champagne v. McDonough

Decided on December 6, 2024

The Federal Circuit affirmed a CAVC denial of an earlier effective date for service connection for the Veteran’s cerebellar degenerative disorder (CDD). The Appellant presented two arguments 1) there was a misinterpretation of 38 C.F.R. § 3.151(a) when the VA did not treat the Veteran’s 1987 application as an application for both pension benefits and a claim for service connection disability compensation and 2) the CAVC engaged in impermissible fact finding. After determining the Court had jurisdiction, it ruled that 38 C.F.R. § 3.151(a) allows for but does not require VA to consider an application for benefits and pension simultaneously. Additionally, the Court determined the CAVC did not undertake in impermissible fact-finding.

August 2024 - September 2024 Case Law Updates

Smith v. McDonough, 23-1378

Decided August 28, 2024

During his lifetime, the Veteran filed a claim for reimbursement of expenses under the provisions for specially adaptive housing benefits. His claim was denied, and he appealed to the CAVC. During the pendency of the appeal, the Veteran passed away and his daughter filed for substitution. The CAVC relied on Breedlove v. Shinseki, 24 Vet. App. 7 (2010), to find that Appellant had not demonstrated that she was eligible for accrued-benefits under 38 U.S.C. § 5121 which is a prerequisite for substitution under Breedlove. In affirming the CAVC decision, the Federal Circuit noted that whether Ms. Hick’s was an eligible accrued benefits claimant is a factually intensive inquiry that the CAVC is not permitted to make in the first instance. The CAVC also declined to allow substitution under 38 C.F.R. § 36.4406(c) because the Appellant did not file a request for reimbursement with VA within one year of the eligible recipient’s death. The Appellant argued that the one-year requirement should not apply. The Federal Circuit declined to render the explicit one-year requirement inapplicable because such an interpretation is contrary to the plain language of the regulation. The Appellant also argued that she should be allowed to substitute under the equitable doctrine of nunc pro tunc. However, the Federal Circuit determined that the equitable doctrine did not apply under the Federal Circuit’s en banc holding in Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007).

Dojaquez v McDonough, 23-1045

Decided on August 27, 2024

The Appellant argued that the end point for the calculation of past due benefits under 38 U.S.C. § 5904(d)(3) should be calculated from the date the Veteran received notification of the decision on April 26, 2019, not the date the VA issued the decision on March 2, 2019. The Federal Circuit analyzes 38 U.S.C. § 5904 finding the statute clear on its face and the end date of past due benefits is the date of the decision. Otherwise, the attorney may receive recurring benefits or benefits in excess of 20 percent of past due benefits, and this is contrary to the plain meaning of the statute.

Rorie v. McDonough, 22-5377

Decision on August 16, 2024

The Veteran claimed that he was entitled to an earlier effective date because VA examination reports should have been considered an informal claim under 38 C.F.R. § 3.157(b). The Veteran’s argument hinged on whether the Court’s holding in Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (giving agency interpretation of a VA regulation deference under Auer), was still binding precedent after the Supreme Court’s holdings in Kisor v. Wilkie, 588 U.S. 558 (2019), and Loper Bright v. Raimondo, 144 S. Ct. 2244 (2024). The Court relied on the Supreme Court’s decision in Loper Bright to find that the principle of stare decisis applies to decisions decided under the Chevron doctrine and by extension to decisions made prior to Kisor (limiting Auer deference to cases where the regulation was genuinely ambiguous). In Pacheco, the Court’s holding gave deference to the agency’s interpretation of section 3.157(b) finding that examination reports could be considered evidence of an informal claim to re-open only if the previous disability had been disallowed because it was noncompensable. See Pacheco, 27 Vet. App. at 30. The CAVC found that it was still bound by this decision in denying the Veteran’s claim.

Burgan v. McDonough, 23-7869

Decided August 23, 2024

The Board mailed its decision to the Appellant’s attorney at the attorney’s physical street address omitting the P.O. Box included in attorney’s official address provided to the VA. The Court held the Appellant has not met his burden of demonstrating that the Board’s omission of P.O. Box information from a dual address was consequential to delivery and the Appellant has failed to rebut the presumption of regularity.

Laska v. McDonough, 22-1018

Decided September 6, 2024

At issue was the level of care that veterans, suffering from TBI, need to demonstrate to be entitled SMC under 38 U.S.C. 1114(t). The Court found that the plain language of 38 C.F.R. §1114(t) specifies that the requisite level of care for entitlement to SMC(t) is the need for regular aid and attendance. However, the VA regulation requires the higher-level of care described in 38 C.F.R. § 1114(r)(2). As the regulation conflicted with the statute, the Court found it invalid and remanded the Veteran’s claim for adjudication under the plain meaning of the statute.

Cooper v. McDonough, 23-5963

Decision dated September 18, 2024

The Appellant argued that under the AMA, he is entitled to appeal a Board remand to the Court because once a Board decision is remanded to the agency of original jurisdiction (AOJ) it no longer automatically returns to the Board to ensure remand compliance. Thus, the Board remand is a final decision under the AMA and confers jurisdiction to the Court. However, the Court found that Congress did not change the Court’s jurisdictional statutes under the AMA, and “absent any change there is no warrant to cast aside longstanding precedent instructing that remand are not final decisions and so lay beyond the Court’s jurisdiction.”