Single Judge Application; we have held that a fair process violation can be found where the process by which the Board reaches an adverse credibility determination is unfair to the claimant. See Smith v. Wilkie, 32 Vet.App. 332, 338-39 (2020). In Smith, we held that the Board violates principles of fair process when it changes an earlier favorable credibility determination (or a statement that would lead a claimant to believe there had been a favorable credibility determination) without notifying the claimant or providing an opportunity to respond to the credibility-determination change. Id. at 334;

by Tbird | Aug 22, 2021 | VA Law

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 20-0423 CLYDE MILLER, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet....

Single Judge Application; failure define term or degree; Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018), arguing that the Board must disclose the standard under which it is operating. Appellant’s Br. at 26. But Johnson focused on a situation where the Board failed to define a term of degree (specifically, “very frequent”) that could be applied inconsistently across similar cases without a clear definition. 30 Vet.App. at 255;

by Tbird | Aug 21, 2021 | VA Law

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 20- 0882 NORMAN F. THORNTON, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FALVEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet....

Single Judge Application; In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, 1291 (Fed. Cir. 2009), overruled by Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that the presumption of competency requires nothing more than is required for veterans in other contexts—i.e., simply that the veteran raise the issue—and that, once the veteran raises such a challenge, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications). But, to the extent that Francway did not overrule the holding in Rizzo, the issue here is not the examiner’s competency; In addition, in Sickels v. Shinseki, the Federal Circuit found unpersuasive the veteran’s argument—that he should not be required to assert that the examiner was insufficiently informed—because, like in Rizzo, he had not raised that concern before the Board. 643 F.3d 1362, 1366 (Fed. Cir. 2011) (finding that an examiner’s competency and whether the examiner was sufficiently informed were similar in that a veteran must challenge both and, because Mr. Sickels had not done so, the Board was not required to address the issue of whether the examiner understood the adjudicator’s instructions);

by Tbird | Aug 21, 2021 | VA Law

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 19-1993 JACK T. BREWSTER, APPELLANT, V. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FALVEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet....

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

by Tbird | Aug 21, 2021 | VA Law

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 19-4765 KATHY GARDNER-DICKSON, PETITIONER, V. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, RESPONDENT. Before GREENBERG, MEREDITH, and FALVEY, Judges. O R D E R FALVEY, Judge, filed the opinion of the Court....

Single Judge Application; Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (“[O]nce the veteran raises a challenge to the competency of the medical examiner, the presumption [of competence] has no further effect, and, just as in typical litigation, the side presenting the expert ( here [,] the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.” ); Francway, 940 F.3d. at 1309 (“‘[W]hether an examiner is competent and whether he has rendered an adequate exam[ination] are two separate inquiries.’” (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)));

by Tbird | Aug 19, 2021 | VA Law

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 20-2915 THOMAS M. CLAYTON, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MEREDITH, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet....