Veterans Law Case Summaries

The following case summaries are notable as case law that Mark Lippman both argued and won to establish a precedent.  CLICK HERE to view additional cases recently heard by the Federal Circuit and Veterans Courts.

Federal Circuit Cases

1)  Gambill v. Shinseki, 576 F.3d 1306 (Fed. Cir. 2009) (concurring, J. Moore) (due process of law affords a claimant the right to submit written questions – called “interrogatories” – to the VA’s C & P physicians to obtain information about the their qualifications and findings).

2) Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Court holds that, even if the veteran is represented by an attorney, the VA must adjudicate his claim in the same way as pro se claimants, sympathetically and paternalistically).

3) Barrett v. Principi (“Barrett I), 363 F.3d 1316 (Fed.Cir. 2004) (Court held that a veteran could assert mental incapacity as a basis to toll or extend the deadline to file an appeal). *Has been effectively overruled by Henderson v. Shinseki, 589 F.3d 1201 (en banc) (Fed. Cir. 2009).

4) Barrett v. Nicholson (“Barrett II), 466 F.3d 1038 (Fed.Cir. 2006) (Court held that the Secretary has a duty to obtain a medical opinion to determine whether a veteran’s alleged mental incapacity is severe enough to toll the filing period for an appeal). *Has been effectively overruled by Henderson v. Shinseki, 589 F.3d 1201 (en banc) (Fed. Cir. 2009).

5) Durr v. Nicholson, 400 F.3d 1376 (Fed.Cir. 2005) (Court held that the contents and requirements of a Notice of Appeal must be liberally construed in favor of veterans).

Veterans Court Cases

1) Hood v. Shinseki, 23 Vet.App. 295 (2009) (Court held that when the VA claims a confidential privilege in connection with some of its documents, the veteran is entitled to have the VA and ultimately the Veterans Court review these documents in private to ensure that they are protected by the asserted privilege).

2) Chotta v. Shinseki, 23 Vet.App. 73 (2009) (Court held that the VA’s duty to assist in determining the level of disability may include requiring the VA to develop medical evidence through a retrospective medical evaluation -- that is, a medical opinion which considers past periods of disability).

3) Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008) (Court held that the probative value of a VA or private examiner’s opinion depends upon the extent and persuasiveness of his analysis of the relevant medical records, not upon his review of the veteran’s claims file).

4) Ingram v. Nicholson, 21 Vet.App. 232 (2007) (Court held, among other things, that unadjudicated claims should not be treated as claims for clear and unmistakable error (CUE).  This decision makes it much easier for veterans to obtain an earlier effective date for their disability awards).

5) Stefl v. Nicholson, 21 Vet.App. 120 (2007) (Court held that, when evaluating a veteran’s disability, VA medical examiners must consider both presumptive and direct theories of service connection).

6) Roebuck v. Nicholson, 20 Vet.App. 307 (2006) (Court held that a claim is defined by the nature of the veteran’s disability, not by the theories of service-connection).

7) Coker v. Nicholson, 19 Vet.App. 439 (2006) (Court held that the VA must liberally read a veteran’s informal claim for benefits, including considering the medical records and other documents in the file).

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