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RECENT FEDERAL CIRCUIT DECISION: Simmons v. Wilkie, (Fed. Cir. July 17, 2020)

The Simmons decision represents further erosion of the preferred status of veterans under VA law.

• Any decision the VA makes regarding a veteran’s claim is subject to five (5)(!!!!!) levels of appellate review – Agency Higher Level Review < Board of Veterans’ Appeals < U.S. Court of Appeals for Veterans Claims (Veterans Court) < U.S. Court of Appeals for the Federal Circuit < U.S. Supreme Court.

• Veterans seeking disability compensation from VA generally must prove that any disability they currently suffer was related to an injury or disease incurred or caused by military service. Veterans law contains several uniquely beneficial legal presumptions that, at one time, were meant to assist them in meeting their burden of proof. One of these legal presumptions is the “presumption of soundness” – the presumption that an individual enters the military sound, without physical or mental defect. See 38 U.S.C. § 1111.

• Historically, veterans seeking court review of agency decisions once enjoyed another presumption – a court created “presumption of prejudice” that essentially removed the notion of “harmless error” from appellate analysis of VA mistakes.

• The Federal Circuit in Simmons held that the “presumption of prejudice” does not apply to failures to violate the “presumption of soundness” or any other presumption benefiting the veteran.

• Practically, this decision further narrows legal avenues for winning appeals of VA agency decisions in the Veterans Court.

In this case, the veteran, Mr. Simmons, experienced symptoms of depression while in the Navy between 1968 and 1970, and at one point was diagnosed with situational depression. A month before he was discharged, the veteran was diagnosed with immature personality disorder. After a fairly tortured path through the VA appeal process that persisted over the course of several decades, the Board of Veteran Appeals denied his claim for a psychiatric disorder, holding that it is was related to non-military physical ailments, and not his military service – but the Board also stated that Mr. Simmons was not entitled to his presumption of soundness.

Mr. Simmons appealed the Board’s decision to the Veterans Court, which held that the Board errored in denying the veteran the presumption of soundness – however, it held that the error was harmless. The Veterans Court found that Mr. Simmons had not shown his in-service injuries or diseases were related to his current disabilities. Therefore, it did not matter if he was presumed sound in service.

Mr. Simmons took his case to the Federal Circuit, where he argued that any failure to apply a legal presumption under VA law should automatically be found prejudicial. Historically, such a presumption of prejudice did apply to the VA’s failures to observe beneficial statutes. However, the Supreme Court in Shinseki v. Sanders, 556 U.S. 396 (2009) held that a presumption of prejudice did not apply to VA failures to provide veterans notice, and that veterans must show prejudice. Unfortunately for Mr. Simmons, the Federal Circuit expanded the prejudice requirement to application of legal presumptions. Siding with the Veterans Court, the Federal Circuit held that Mr. Simmons was not entitled to a presumption of prejudice for his presumption of soundness.

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