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Ken Carpenter & Alexandra Curran Carpenter Chartered Attig Steel Heading for the Supreme Court!

Pirkl v. Wilkie - 906 F.3d 1371 (2018) FactsMr. Pirkl served in the Navy for three years and filed a disability claim in 1950, shortly after his discharge, to service connect a psychiatric conditionThe VA initially awarded him a low disability rating, but increased it to 100% by 1952 Over the next decade this rating was gradually reduced to 30%. As a result of judicial review Mr. Pirkl , with the assistance of counsel, was able to seek revision of VA’s unlawful reduction of his total rating more than 40 years later in 2001

Pirkl v. Wilkie - 906 F.3d 1371 (2018) Procedural HistoryMr. Pirkl was successful in getting the first VA decision revised and his total rating restored from 1953 to 1957 but VA would not restore the two later reductions. Mr. Pirkl appealed and the Board affirmed, the Veterans Court affirmed the Board.  While on appeal Mr. Pirkl died and his wife was substituted as appellant and Mrs. Pirkl took the first appeal to the Federal Circuit. The Federal Circuit reversed and remanded to the Veterans Court and the Veterans Court remanded to the Board. On remand the Board dismissed for lack of jurisdiction, Mrs. Pirkl appealed and the Veterans Court affirmed the dismissal for lack of jurisdiction. Mrs. Pirkl appealed to the Federal Circuit for the second time and the Federal Circuit reversed the dismissal of Mrs. Pirkl’s appeal and remanded to the Veterans Court with instructions to remand to the Board for a decision on the merits.

Pirkl v. Wilkie - 906 F.3d 1371 (2018) Question PresentedDid Mr. Pirkl commit a procedural default, limiting his ability to secure corrective relief guaranteed by  § 5109A(b)? Does his relief automatically stop after subsequent court affirmed rating decreases? Holding No This case demonstrates how complicated cases in this area can become and how vigorously VA fights veterans and their families to prevent them form receiving the benefits to which they are entitled to under law.  An update, on remand the Board in Jul 2019 denied revision of the 1956 and 1988 decisions and Mrs. Pirkl has appealed for the third time to the Veterans Court which will finally be reviewing the merits. Mrs. Pirkl is 90 years old, if she dies before this appeal is resolved, the appeal will die with her and VA will not be required to restore Mr. Pirkl’s total rating for the period from March 1, 1957 to November 30, 1988, a period of more than 30 years.

Cook v. Wilkie - 908 F.3d 813 (2018) FactsCook served in the Navy during VietnamService records indicate that he experienced a back injuryIn 2000 Cook tried to service connect this injury to qualify for total disability based on individual unemployability ("TDIU") Procedural History The Regional Office denies his claim both initially and on remand from the Board of Veterans’ Appeals Board of Veterans Appeals refuses to hold a second hearing on Cook’s claim, even after the Veterans Court vacated and remanded their decision Mr. Cook appealed the Board’s denial of a second hearing and the Veterans Court interpreted the provisions of § 7107(b) to require a second hearing on remand. VA appealed to the Federal Circuit.

Cook v. Wilkie - 908 F.3d 813 (2018) Question PresentedDoes § 7107(b) entitle an appellant to an opportunity for a Board hearing following a vacatur and remand from the Veterans Court, even if that appellant was previously given a Board hearing in the case?Holdings Yes This case is an example of how narrowly VA interprets the statutes which govern how VA is to adjudicate claims and appeals.  The Federal Circuit affirmed the decision on the Veterans Court but did so based on the plain language of the statute providing an even stronger basis than the interpretation made by the Veterans Court.

Ruel v. Wilkie - 918 F.3d 939 (2019) FactsRuel served as a Marine for four years, including two tours in VietnamDuring his service he was exposed to Agent Orange He died in 1984, due in part to ischemic heart disease Procedural History In 1984 his widow requested, and was denied, Dependency and Indemnity Compensation because ischemic heart disease was not connected to Agent Orange In 2009 a statute connected ischemic heart disease with Agent Orange exposure Ms. Ruel filed another request for Dependency and Indemnity Compensation, but was only granted an effective date of 2009, not 1984 On appeal to the Veterans Court, that Court agreed with VA that Mrs. Rule had received sufficient notice of VA’s denial of DIC benefits.

Ruel v. Wilkie - 918 F.3d 939 (2019) Question PresentedDid the sentence in the VA’s 1984 letter meet the notice requirements of § 3.103? Holding No. This case is an example of how narrowly VA interprets its own regulations to prevent veterans and their families from receiving all of the benefits to which they are entitled under law. The Federal Circuit reversed the Veterans Court’s decision to affirm the Board and since the Veterans Court and Board had provided no other basis for finding that Mrs. Ruel’s 1984 DIC claim was denied, the Federal Circuit concluded that Mrs. Ruel’s 1984 claim remained pending as of 2010, when the RO granted Mrs. Ruel’s DIC claim. Thus, the correct effective date of Mrs. Ruel’s DIC claim is July 6, 1984, and the Federal Circuit  directed that the VA to dispense her benefits accordingly resulting in more than 25 years of past due benefits.

Kisor v. Wilkie - 139 S.Ct. 2400 (2019)FactsMr. Kisor served in Vietnam and developed PTSD His initially attempt to service connect the disability, filed in 1982, was denied In 2006 Mr. Kisor moved to have the claim reexamined, and the VA promptly granted benefits for his PTSD. However, instead of giving retroactive benefits from the date his claim was filed in 1982, the VA gave an effective date of 2006. Procedural History The Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims affirmed the VA’s interpretation of regulations governing retroactive benefits The Federal Circuit affirmed, but only by applying the doctrine of Auer , which gives   deference to an agency’s interpretation of its own regulations

Kisor v. Wilkie - 139 S.Ct. 2400 (2019)Question Presented Should the Supreme Court overrule the Auer doctrine, which provides deference to an agency’s interpretation of its own regulations? Holding No Although the Supreme Court did not overrule Auer deference, it did clarify and expand the role of courts in reviewing agency regulations. On remand, the Federal Circuit will decide whether the interpretations made or relied upon by Veterans Law Judges in making Board decisions represent the views of the Secretary and are therefore entitled to deference. Under the new guidelines provided by the Supreme Court, the Federal Circuit will need to determine with the term “relevant” as used by the Secretary in 38 C.F.R. § 3.156(c) can be understood using the traditional tools of construction. Mr. Kisor will be arguing that the pro veteran cannon of construction is a traditional tool of construction and that in accordance with that cannon the term “relevant” as used by the Secretary in 38 C.F.R. § 3.156(c) should be interpreted in the light most favorable to veterans and not as VA urges in a manner which limits reconsideration under § 3.156(c).