March 2025 - Federal Circuit

U.S. Court of Appeals for Federal Circuit

Smith v. Collins, (23-2213) | Decided on March 10, 2025

The United States Court of Appeals for the Federal Circuit determined that it lacked jurisdiction to hear Veteran Smith’s challenge to a determination that VA rebutted the presumption of soundness and showed by clear and unmistakable evidence that his retinitis pigmentosa did not increase in severity during service. Specifically, he challenged the sufficiency of the medical opinion relied upon as the VA physician was asked whether it was “at least as likely as not that there was increase in the severity,” which is insufficient to meet the clear and unmistakable standard.

The Federal Circuit determined that it lacked jurisdiction as this contention amounted to a disagreement with the weighing of evidence as both the Board and Veterans Court found the medical opinion sufficient to meet the clear and unmistakable standard. Veteran Smith also argued that the medical opinion impermissibly drew an inference based upon the absence of evidence, which again cannot meet the clear and unmistakable standard. The Federal Circuit determined that it lacked jurisdiction as both the decision from the Veterans Court and the Board did not do what Veteran Smith contended, which is to expressly or implicitly treat an absence of evidence as constituting clear and unmistakable evidence as both decisions expressly ruled that they were based on affirmative evidence.

Williams v. Collins, (23-1840) | Decided March 19, 2025

The United States Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Mr. Williams’ appeal finding that the U.S. Court of Appeals for Veterans Claims (Court) properly interpreted 38 C.F.R. 3.156(b). The question raised in this appeal is whether evidence identified and discussed in a Statement of the Case (SOC), but not in a rating decision, affects the finality of the Regional Office’s (RO) adverse decision. Here, the Federal Circuit determined that nothing in the language of 38 C.F.R. 3.156(b) states that the Department of Veterans Affairs (VA) cannot satisfy its obligations in a SOC as long as there is some indication that VA determined whether the evidence was new and material and that the evidence was considered in evaluating the pending claim. The Federal Circuit found the Court did not err in finding VA complied with properly applied 38 C.F.R. 3.156(b).

Roseberry v. Collins, (23-2288) | Decided March 31, 2025

After the proceedings before the U.S. Court of Appeals for Veterans Claims (Court), counsel for Mr. Rosenberry submitted an application for attorneys fees under the Equal Access to Justice Act (EAJA). The Court requires that an EAJA application be filed no later than 30 days after the Court’s judgment becomes final. The Court docketed the mandate on October 15, 2021, but it was effective October 12, 2021, as stated on the face of the order. Relying on the docketed date, Mr. Rosenberry’s counsel filed the EAJA application one day late. The Court found the application was untimely and that equitable tolling was unwarranted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Mr. Rosenberry’s appeal, finding that ordinary excusable neglect does not warrant equitable tolling. The Federal Circuit found the Court properly denied the EAJA application as untimely because Mr. Rosenberry failed to meet the extraordinary circumstances standard to justify his late EAJA application.