Frantzis v. McDonough, 35 Vet.App. 14 (2022) HELD: under the ama, A VETERAN DOES NOT HAVE THE RIGHT TO HAVE THE SAME BOARD MEMBER WHO CONDUCTED THE HEARING DECIDE THE APPEAL. Summary: In June 2018, veteran opts into the AMA via the RAMP. In May 2019, the veteran and his wife testify before a Veterans Law Judge. In September 2019, a DIFFERENT Veterans Law Judge issues a decision. This VLJ acknowledges the hearing testimony, but finds the medical evidence is more probative.  At the CAVC, the veteran argues that 38 USC § 7102 requires the VLJ who held hearing to issue decision. The Secretary ..read more

George v. McDonough, 142 S.Ct. 1953 (2022) HELD: VA’S FAILURE TO PROPERLY APPLY THE PRESUMPTION OF SOUNDNESS FOR DECADES WAS NOT CLEAR AND UNMISTAKABLE ERROR - BECAUSE THE FEDERAL CIRCUIT’S DECISION THAT INVALIDATED VA’S ERRONEOUS INTERPRETATION WAS A CHANGE IN THE INTERPRETATION OF THE LAW. Summary: In 1977, the Board denied service connection for schizophrenia - finding that it pre-existed service. The Board made no finding as to whether the condition was also aggravated by service, as required by 38 USC § 1111. In 2003, VA amended its regulation to include the aggravation prong of the presu ..read more

Cowan v. McDonough, 35 Vet.App. 232 (2022) HELD: The notice required by 38 USC § 5104A can come in the form of the notice letter, the rating decision, the enclosures, and/or any combination of these documents. Summary: In a RAMP decision, VA provided favorable findings for only one portion of the relevant rating period - and the accompanying letter provided the same information about obtaining evidence as a legacy notice letter. The veteran appealed to the Court, arguing that the decision and notice were defective under 38 USC § 5104 - and that without proper notice, the veteran couldn’t make ..read more

Aviles-Rivera v. McDonough, 35 Vet.App. 268 (2022) HELD: NAS updates that were created outside the AMA evidentiary window are evidence and cannot be deemed to be constructively in the record. Summary: In April 2017, the Board remanded the Vietnam veteran’s appeal for service connection for hypertension for an examiner to consider the NAS Updates. The examiner provided an opinion in October 2017. In June 2018, the veteran opted into the AMA through the RAMP pilot program. In September 2018, VA issued a Higher Level Review decision. In November 2018, the NAS Update links hypertension to herbicid ..read more

Slaughter v. McDonald, 29 F.4th 1351 (Fed. Circ. 2022) HELD: The burden of proving prejudicial error is not an “onerous” one and the CAVC needs to look at the circumstances of the case to determine prejudice. “combined nerve injuries” under 38 C.F.R. § 4.124A refers to service-connected conditions only. Summary: Veteran was service connected for ulnar nerve under 38 C.F.R. § 4.124, DC 8516. He later developed median nerve issues. VA examiner couldn’t distinguish symptoms related to the individual nerves - and VA increased his rating to 40% based on the symptoms of both nerve issues. Veteran ar ..read more

Martinez-Bodon v. McDonough, 28 F.4th 1241 (Fed. Cir. 2022) HELD: VA REGULATIONS require a formal DSM-5 diagnosis in order to be compensated for a mental health disability. Summary: Veteran had psychiatric symptoms, but no formal diagnosis. The Board denied service connection. Veteran argued that he didn’t need a diagnosis because Saunders v. Wilkie held that “pain that reaches the level of ‘functional impairment of earning capacity’ could constitute a ‘disability’ under 38 U.S.C. § 1110.” The Court rejected this argument because the question in Saunders ”was whether conditions not on the rati ..read more

Gumpenberger v. McDonough, 35 Vet.App. 195 (2022) HELD: Because entitlement to TDIU and a higher rating involve different considerations, an NOD that expressly appeals for TDIU does not encompass an appeal of the TBI rating. SUMMARY: In May 2013, VA granted a 70% rating for TBI and denied service connection for a psychiatric condition and TDIU. The following month, the veteran appealed - identifying service connection for the psychiatric condition and TDIU only. The RO continued to deny both in a Statement of the Case that the veteran appealed with a timely VA Form 9. In December 2015, he with ..read more

UI Law students represent U.S. veterans in court… Link to Daily Iowan story here ..read more

Iowa Law students are fighting for U.S. veterans in court … Link to full story here Iowa State Bar Association tweets out ..read more

ABK is honored with this year’s Chairman’s Award for pro bono veterans advocacy. View program here ..read more