These recently decided cases could change how you approach evidence development or working up appeals. Make sure you're up to date with the latest updates and information you need to adequately represent our clients!
Looking for a podcast to tune into during the work day? Here are a few of the better ones!
Reinforces that under Jones, VA must consider a veteran’s unmedicated or flare-up condition—even for musculoskeletal disabilities—and cannot rely solely on medicated, baseline examinations that obscure true severity. It’s a potent tool to bolster higher rating claims.
In Hatfield v. Collins, No. 2023-2280 (Fed. Cir. May 2, 2025), the Federal Circuit addressed whether the Board of Veterans’ Appeals (BVA) committed clear and unmistakable error (CUE) in its 1980 decision denying dependency and indemnity compensation (DIC) under 38 U.S.C. § 351 (now § 1151).
Archie Hatfield, a World War II veteran, underwent radiation therapy at a VA facility in 1978 for Hodgkin’s lymphoma. Although the treatment was initially successful, he died in early 1979 from pulmonary complications associated with the therapy. His widow, Pat Hatfield, filed a DIC claim asserting that negligent VA care caused his death. The BVA denied the claim in 1980, finding the complications were recognized risks of the treatment and that care was adequate.
In 2010, Hatfield reopened her claim under a 2004 regulation (38 C.F.R. § 3.361(d)(1)(ii)) requiring informed consent for VA medical procedures. The Veterans Court awarded benefits from August 1, 2010, due to the VA's failure to obtain informed consent. Subsequently, Hatfield sought to revise the 1980 decision, alleging CUE based on the VA's failure to obtain informed consent under 38 U.S.C. § 4131. The BVA and Veterans Court denied the motion, concluding that in 1980, the absence of informed consent did not constitute compensable negligence under § 351. The Federal Circuit affirmed, holding that the 1980 BVA decision did not contain CUE, as the legal standards at that time did not recognize failure to obtain informed consent as a basis for compensation under § 351.
1. CUE Must Be Based on Law and Facts Existing at the Time
CUE claims are evaluated based on the legal standards and factual record as they existed at the time of the original decision. Subsequent legal developments, such as the 2004 regulation on informed consent, cannot retroactively establish CUE in prior decisions.
2. Understanding the Evolution of § 1151 Claims
The interpretation of what constitutes compensable negligence under § 1151 has evolved. Advocates should be aware that earlier decisions may not have considered factors like informed consent as grounds for compensation, which are recognized under current law.
3. Strategic Use of Reopened Claims vs. CUE Motions
When new regulations or interpretations arise, filing a new or reopened claim may be more effective than pursuing a CUE motion, which has a high evidentiary threshold and is confined to the legal context of the original decision.
For a detailed analysis, refer to the full opinion: Hatfield v. Collins, No. 2023-2280 (Fed. Cir. May 2, 2025).([law.justia.com][2])
The Supreme Court ruled that whether evidence is 'approximately balanced' under the benefit-of-the-doubt rule is a factual finding, not a legal one. This means higher courts (like the Veterans Court or Federal Circuit) cannot overturn VA or BVA decisions just because they disagree with how evidence was weighed. Instead, only clear legal or procedural errors can be challenged—like failing to apply the right law or ignoring evidence entirely.
• At the Regional Office and BVA level, how we present and develop evidence matters more than ever.
• If evidence is even slightly in balance, the VA is supposed to give the benefit of the doubt. But if they don’t, we must prove they made a legal mistake — not just that we disagree.
• We need to focus on helping the BVA make the right call the first time by building strong records and pointing out clear legal or procedural errors.
• When appealing, we emphasize failure to apply the correct law, duty-to-assist violations, and inadequate reasons and bases — not just disagreement with weighing evidence.
Post-Bufkin Legal Arguments - Templates
In Chisholm v. Collins, No. 22-7028 (Vet. App. Mar. 13, 2025), the U.S. Court of Appeals for Veterans Claims addressed two pivotal issues: the validity of attorney fee eligibility in the context of VA's claims processing and the procedural requirements for filing supplemental claims.
Attorney Robert V. Chisholm represented a veteran who, in November 2019, sought increased ratings for service-connected tinea pedis and right lower extremity radiculopathy. The VA denied these claims in February 2020. Chisholm filed a Higher-Level Review (HLR), which was also denied in April 2021. Subsequently, within a year, the veteran submitted a VA Form 21-8940, applying for Total Disability based on Individual Unemployability (TDIU), citing the same disabilities. In April 2022, the VA awarded higher ratings for the disabilities and granted TDIU.
Chisholm sought attorney fees based on the past-due benefits resulting from the April 2022 decision. The Board of Veterans' Appeals denied the fee request, reasoning that the TDIU application constituted a new claim, separate from the earlier increased rating claims, and thus did not entitle Chisholm to fees.
The Court disagreed, holding that the TDIU application was a supplemental claim related to the previously denied increased rating claims. It emphasized that while supplemental claims must be filed on a form prescribed by the Secretary, they are not restricted to a specific form, such as VA Form 20-0995. Therefore, the VA Form 21-8940 submitted by the veteran sufficed as a supplemental claim.
1. TDIU Applications Can Serve as Supplemental Claims
A TDIU application submitted after the denial of increased rating claims for the same disabilities can be considered a supplemental claim. This interpretation allows for continuity in the claims process and potential eligibility for attorney fees based on past-due benefits.
2. Flexibility in Prescribed Forms for Supplemental Claims
The Court clarified that while the VA requires supplemental claims to be filed on a form prescribed by the Secretary, it does not mandate a specific form. Thus, forms like VA Form 21-8940 can fulfill the requirement for a supplemental claim, provided they pertain to the same or similar benefits previously denied.
3. Importance of Accurate VA Accounting in Attorney Fee Determinations
The case highlights the necessity for the VA to accurately associate attorney fees with the correct claims and benefits. Misattributions can lead to disputes and necessitate legal intervention to resolve fee entitlements appropriately.
For a more detailed understanding, you can access the full opinion here: Chisholm v. Collins, No. 22-7028 (Vet. App. Mar. 13, 2025).(law.justia.com)
The U.S. Court of Appeals for the Federal Circuit addressed whether the Combat-Related Special Compensation (CRSC) statute, 10 U.S.C. § 1413a, provides a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act, 31 U.S.C. § 3702.(naag.org)
Background:
Simon Soto, a Marine Corps veteran medically retired in 2006, became eligible for CRSC in 2008 due to a combat-related disability. However, he did not apply for these benefits until 2016. Upon approval, the Navy limited his retroactive payments to six years prior to his application date, citing the Barring Act's six-year statute of limitations. Soto filed a class-action lawsuit, arguing that the CRSC statute's specific provisions should govern the settlement of such claims, thereby displacing the Barring Act's limitations.(ballotpedia.org, patentlyo.com)
District Court Decision:
The district court agreed with Soto, holding that the CRSC statute is more specific and thus supersedes the Barring Act. The court applied the pro-veteran canon of statutory interpretation, resolving any ambiguity in favor of the veterans.(ballotpedia.org)
Federal Circuit Holding:
On appeal, the Federal Circuit reversed the district court's decision. The court held that the CRSC statute does not contain its own settlement mechanism and therefore does not displace the Barring Act. Specifically, the court noted that the CRSC statute lacks explicit language granting an agency the authority to settle claims, such as the term "settle," and does not specify a statute of limitations. Consequently, the Barring Act's six-year statute of limitations applies to CRSC claims.(supremecourt.gov, cafc.uscourts.gov, fedcircuitblog.com)
Supreme Court Review:
The U.S. Supreme Court granted certiorari on January 17, 2025, to address the question:
"Given the Federal Circuit's holding that a claim for compensation under 10 U.S.C. § 1413a is a claim 'involving ... retired pay' under 31 U.S.C. § 3702(a)(1)(A), does 10 U.S.C. § 1413a provide a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act?"(scotusblog.com)
Oral arguments were heard on April 28, 2025. As of now, the Supreme Court's decision is pending.(fedcircuitblog.com)
Implications:
The outcome of this case will significantly impact thousands of medically retired combat veterans seeking full retroactive CRSC payments. A decision affirming the Federal Circuit's ruling would maintain the six-year limitation, potentially reducing the compensation for many veterans. Conversely, a reversal could allow eligible veterans to receive full retroactive payments dating back to their eligibility date, irrespective of when they applied for benefits.(fedcircuitblog.com)
For more detailed information, you can refer to the Federal Circuit's opinion and the Supreme Court docket.