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A decision of the U.S. Court of Appeals for Veterans Claims', denying a surviving spouse's claim for dependency and indemnity compensation (DIC) from the Department of Veterans' Affairs, is affirmed as the government's interpretation of 38 U.S.C. section 1311(a)(2) is correct as it does not provide a stand-alone or independent basis for entitlement to DIC benefits. 

Read Barela v. Shinseki, No. 09-7002

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims

Decided November 3, 2009

Judges

Before Michel, Chief Judge, Newman and Prost, Circuit Judges

Opinion by Circuit Judge Prost

Counsel

For Appellant:  Kenneth M. Carpenter

For Appellee:  Meredyth Cohen Havasy, Commercial Litigation Branch, Civil Division, U.S. Department of Justice

Decision of the Veterans Court that 38 C.F.R. section 3.343(a) does not apply to the total disability state of claimant's retrospective stated rating is affirmed as the Department of Veterans Affairs' interpretation of the applicability of the section is not plainly erroneous or inconsistent with the regulation.   

Read Reizenstein v. Shinseki, No. 09-7012

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 29, 2009

Judges

Before Newman, Mayer, and Prost, Circuit Judges

Opinion by Prost,  Circuit Judge.   

Counsel

For Appellant:  Kenneth M. Carpenter

For Appellee:  Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

Judgment of the United States Court of Federal Claims denying petitioner's claim for back pay based on improper transfer after serving in the Navy for twenty years is affirmed in part, vacated in part and remanded where: 1) judgment of the court that petitioner's transfer to the Fleet Reserve was not improper is affirmed; and 2) judgment rejecting petitioner's claim for back pay from October 2000 to mid-May 2001 based on his post-transfer service is vacated and remanded.   

Read Walls v. US, No. 08-5179

Appeal from:  United States Court of Federal Claims

Decided September 29, 2009

Judges

Before Newman, Gajarsa, and Dyk, Circuit Judges

Opinion by Dyk, Circuit Judge.   

Counsel

For Appellant:  Rebecca A. Koch, Kirkland & Ellis LLP

For Appellee:  Kent Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice

United States Court of Appeals for Veterans Claims' (Veterans Court) judgment affirming the decision of the Board of Veterans' Appeals rejecting petitioner's claim for an earlier-effective date for entitlement to benefits is affirmed as the Veterans Court gave the petitioner adequate notice of the earlier denial of his claim. 

Read Edwards v. Shinseki, No. 08-7078

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 24, 2009

Judges

Before Rader, Bryson, and Dyk, Circuit Judges

Opinion by Rader, Circuit Judge.   

Counsel

For Appellant:  James R. Barney, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP of Washington, DC, Elizabeth D. Ferrill, Mark R. Lippman, The Veterans Law Group

For Appellee:  Tara K. Hogan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Jeanne E. Davidson, Director, Martin F. Hockey, Jr. Assistant Director, Michael J. Timinski, Deputy Assistant General Counsel, Office of the General Counsel, United States Department of Veterans Affairs.

The Armed Services Board of Contract Appeals' ruling that defendant was not required to pay interest to the government for a potential violation of Cost Accounting Standard 413, 48 C.F.R. section 9904.413 (CAS 413), is reversed and remanded as defendant's failure to pay the government in the accounting period required by CAS 413 necessarily resulted in increased costs to the government. Therefore, defendant is liable to the government for compound interest under the CAS clause.

Read Gates v. Raytheon Co. , No. 08-1543

Appeal from:  Armed Services Board of Contract Appeals

Decided September 14, 2009

Judges

Before Mayer, Lourie and Gajarsa, CIrcuit Judges. 
Opinion by Gajarsa, Circuit Judge.   

Counsel

For Appellant:  C. Coleman Bird, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, Jeanne E. Davidson, DIrector, and Kirk T. Manhardt, Assistant Director.  

For Appellee:  Karen L. Manos, Gibson, Dunn & Crutcher LLP, Christyne K. Brennan and Dace A. Caldwell. 

The United States Court of Appeals for Veterans Claims' (Veterans Court) decision finding that claimant's husband did not die from a service-connected or compensable disability is vacated and remanded as the Veterans Court ignored the precedent of the circuit court and incorrectly interpreted 38 U.S.C. section 1154 to require a medical opinion to prove a nexus between a veteran's death and in-service disease.     

Read Davidson v. Shinseki, No. 09-7075

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims
Decided September 14, 2009

Judges

Before Linn, Dyk, and Prost, CIrcuit Judges. 
Opinion by Linn, Circuit Judge.   

Counsel

For Appellant:  Bertha G. Davidson, pro se. 

For Appellee:  Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil DIsivision, United States Department of Justice, Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director, and Rachel T. Shenkman, Staff Attorney, Office of the General Counsel, United States Department of Veterans Affairs.

Petition for review by veterans organizations, involving a procedure promulgated by the Secretary of Veterans Affairs with respect to the determination of certain claims, is granted and the procedure of Fast Letters 07-19 and 08-24 is set aside where the procedure does not comply with the extant Regulations as certain regional office decisions are redetermined by the Compensation and Pension Service without the knowledge and participation of the claimant, and was not implemented in compliance with the requirements of the Administrative Procedure Act. 

Read Military Order of the Purple Heart of the USA v. Sec'y of Veterans Affairs, No. 08-7076

Appellate Information

Appeal from:  Department of Veterans Affairs
Decided September 10, 2009

Judges

Before Newman, Mayer, and Schall, CIrcuit Judges. 
Opinion by Newman, Circuit Judge.   

Counsel

For Appellant:  William E. Doyle, Jr., and Barton F. Stichman 

For Appellee: Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil DIvision, United States Department of Justice, Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk Manhardt, Assistant Director, David R. McLenachen, Deputy Assistant General Counsel.

The United States Court of Appeals for Veterans Claims judgment affirming the decision of the Board of Veterans' Appeals (Board) denying petitioner's service-connection for an eye disability is affirmed as absent some challenge to the expertise of a Department of Veterans Affairs (VA)expert, there are no statutory or other requirement that VA must present some affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion.    

Read Rizzo v. Shinseki, No., 09-7026

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims
Decided September 8, 2009

Judges

Before Michel, Chief Judge, Lourie and Rader, CIrcuit Judges. 
Opinion by Rader, Circuit Judge.   

Counsel

For Appellant:  Douglas J. Rosinski, Ogletree, Deakins, Nash, Smoak & Stewart PC. 

For Appellee: Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice.

A ruling permitting surviving spouses of deceased veterans and military retirees to receive Survivor Benefit Plan (SBP) payments unreduced by the amount of their reinstated Dependency and Indemnity Compensation (DIC) payments is affirmed where the plain language of 38 U.S.C. section 1311(e) unambiguously precludes the DIC-SBP offset of 10 U.S.C. section 1450(c)(1), and partially repeals it so that surviving spouses who receive reinstated DIC by virtue of marrying after age 57 receive their SBP payments unreduced by the amount of their DIC payments.       

Read Sharp v. US, No. 08-5105

Appellate Information

Appeal from:  United States Court of Federal Claims
Decided August 26, 2009

Judges

Before Mayer, Clevenger, and Schall, CIrcuit Judges. 
Opinion by Mayer, Circuit Judge.   

Counsel
For Appellant: Edward R. Reines, Weil, Gotshal & Manges LLP, of Redwood Shores, California. 

For Appellees:  Douglas K. Mickle. Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

In a dispute over a denial of disability benefits, Court of Appeals for Veterans Claims judgment is affirmed where the absence of a right to confrontation with the Veterans Health Administration ophthalmologist was not prejudicial to plaintiff's claim as there was no evidence of record that established an actual causal nexus between plaintiff's in-service injury and his cataracts.      

Read Gambill v. Shinseki, No. 08-7120

Appellate Information
Appeal from the United States Court of Appeals for Veterans Claims
Decided August 13, 2009

Judges
Before BRYSON, LINN, and MOORE, Circuit Judges.
Per Curium Opinion.
Concurring opinions by Circuit Judge BRYSON and Circuit Judge MOORE.

Counsel
For Appellant: Michael A. Morin, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., Washington, DC.

For Appellee: Harold D. Lester, Jr., United States Department of Justice, Washington, DC.