UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 16-2333HANK M. SMIDDY, APPELLANT,V.ROBERT L. WILKIE,SECRETARY OF VETERANS AFFAIRS, APPELLEE.On Appeal from the Board of Veterans’ Appeals(Decided May 28, 2020)Amy F. Odom and Barton F. Stichman, both of Washington, D.C., and James D. Arden,of New York, New York, were on the brief for the appellant.Meghan Flanz, Interim … [Read more...] about Smiddy v. Wilkie, No. 16-2333(Decided May 28, 2020); legal analysis that the Board conducts after receiving an extraschedular decision from the director of the Compensation Service (Director); 38 C.F.R. § 3.321(b)(1)(2015); Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) (clarifying that the “steps” described in Thun “are, in fact, elements that must be established before an extraschedular rating can be awarded”);
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Single Judge Application; VA Form 21-4142; RO failed to obtain private medical records on his behalf; “new and material evidence” standard remains applicable for claims to reopen decided prior to February 19, 2019. 38 C.F.R. § 3.156(a); Federal Circuit held in 2018 that pain in the absence of a presently diagnosed condition could, under certain circumstances, qualify as a disability, Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); the governing law in 2008 was that pain alone could not constitute a disability, Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999); evidence submitted after the January 2008 RO decision clearly demonstrated the existence of a current disability; Board’s conclusion that the newly submitted evidence was not material to an unestablished element needed to substantiate the claim is clearly erroneous;
Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 19-2425EDDIE L. OLIVER, APPELLANT,V.ROBERT L. WILKIE,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before BARTLEY, Chief Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Chief Judge: Veteran Eddie L. Oliver appeals … [Read more...] about Single Judge Application; VA Form 21-4142; RO failed to obtain private medical records on his behalf; “new and material evidence” standard remains applicable for claims to reopen decided prior to February 19, 2019. 38 C.F.R. § 3.156(a); Federal Circuit held in 2018 that pain in the absence of a presently diagnosed condition could, under certain circumstances, qualify as a disability, Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); the governing law in 2008 was that pain alone could not constitute a disability, Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999); evidence submitted after the January 2008 RO decision clearly demonstrated the existence of a current disability; Board’s conclusion that the newly submitted evidence was not material to an unestablished element needed to substantiate the claim is clearly erroneous;
Philbrook v. Wilkie, No. 18-5628(Argued April 21, 2020 Decided May 19, 2020); incarcerated in a Federal, State or local penal institution or correctional facility for conviction of a felony; 38 U.S.C. § 5313(c); 38 C.F.R. § 3.341(b) (2019);
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 18-5628GARY PHILBROOK, APPELLANT,V.ROBERT L. WILKIE,SECRETARY OF VETERANS AFFAIRS, APPELLEE.On Appeal from the Board of Veterans’ Appeals(Argued April 21, 2020 Decided May 19, 2020)Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.Shondriette D. Kelley, with whom James M. Byrne, General Counsel; Mary A. Flynn, … [Read more...] about Philbrook v. Wilkie, No. 18-5628(Argued April 21, 2020 Decided May 19, 2020); incarcerated in a Federal, State or local penal institution or correctional facility for conviction of a felony; 38 U.S.C. § 5313(c); 38 C.F.R. § 3.341(b) (2019);
FedCir.; VA’s duty to assist; 38 U.S.C. § 5103A; While it is true that we may not review the Veterans Court’s factual conclusion that the VA satisfied its duty to assist, we may, and have, reviewed the Veterans Court’s characterization of the nature of that duty. See, e.g., Jones v. Wilkie, 918 F.3d 322 (Fed. Cir. 2019);
NOTE: This disposition is nonprecedential.United States Court of Appeals for the Federal Circuit BOBBI BROWN, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee 2019-1804 Appeal from the United States Court of Appeals for Veterans Claims in No. 17-2300, Judge Amanda L. Mere-dith.__________ Decided: May 12, 2020 __________HAROLD HAMILTON … [Read more...] about FedCir.; VA’s duty to assist; 38 U.S.C. § 5103A; While it is true that we may not review the Veterans Court’s factual conclusion that the VA satisfied its duty to assist, we may, and have, reviewed the Veterans Court’s characterization of the nature of that duty. See, e.g., Jones v. Wilkie, 918 F.3d 322 (Fed. Cir. 2019);
NOVA v. SECRETARY OF VETERANS AFFAIRS, Order; Issues: whether FedCir. has jurisdiction under 38 U.S.C. § 502 to review provisions of the Department of Veterans Affairs’ Adjudication Procedures Manual M21-1 that are binding on the agency’s initial adjudicators but not on the Board of Veterans’ Appeals; whether this court should overrule Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017); whether the time for filing a direct action for judicial review under 38 U.S.C. § 502 is governed by the 60-day deadline specified by Federal Circuit Rule 47.12(a) or only by the six-year statute of limitations in 28 U.S.C. § 2401(a);
United States Court of Appeals for the Federal Circuit NATIONAL ORGANIZATION OF VETERANS’ADVOCATES, INC.,Petitionerv.SECRETARY OF VETERANS AFFAIRS,Respondent 2020-1321 Petition for review pursuant to 38 U.S.C. Section 502. ON PETITION FOR HEARING EN BANC ROMAN MARTINEZ, Latham & Watkins LLP, Washington,DC, filed a petition for hearing en banc for petitioner.Also … [Read more...] about NOVA v. SECRETARY OF VETERANS AFFAIRS, Order; Issues: whether FedCir. has jurisdiction under 38 U.S.C. § 502 to review provisions of the Department of Veterans Affairs’ Adjudication Procedures Manual M21-1 that are binding on the agency’s initial adjudicators but not on the Board of Veterans’ Appeals; whether this court should overrule Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017); whether the time for filing a direct action for judicial review under 38 U.S.C. § 502 is governed by the 60-day deadline specified by Federal Circuit Rule 47.12(a) or only by the six-year statute of limitations in 28 U.S.C. § 2401(a);
