This document summarizes recent court cases that impact veterans and County Veterans Service Officers. It discusses the Ray case which provided guidance on what constitutes "substantially gainful employment" for determining TDIU benefits. It also summarizes the Stewart case which clarified how to interpret medical conditions under 38 C.F.R. 3.317 for Gulf War illness claims. Additionally, it covers the Procopio case which found that veterans who served in the territorial seas of Vietnam should receive presumptive exposure to Agent Orange. The document provides details on these and other cases and offers guidance for filing related claims.
The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.
Nothing in all the world is more dangerous than sincere ignorance and conscious stupidity.
- Martin Luther King Jr.
The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.
Nothing in all the world is more dangerous than sincere ignorance and conscious stupidity.
- Martin Luther King Jr.
A presentation by the Crescenz (Philadelphia) VA Medical Center to its Vet Affairs Committee on 1 September 2022 on the PACT Act from the VHA perspective plus the Thomas SERVICE (Mammography) Act.
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“The tradition among all armed services, are much older than any government, more conservative than any department of government, and more sure to build on a foundation that they are certain of, rather than to take any chance of making a mistake.”
--- General William "Billy" Mitchell - United States Army
Complaint filed today 5/6/10: United Comerical Fishermans Association v. BP and Others
VERIFIED SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
1. Plaintiff appearing herein is George Barisich, individually and on behalf of the United Commercial Fisherman’s Association, Inc. as President thereof. Mr. Barisich is a natural person of the full age of majority domiciled in, and a citizen of, the State of Louisiana, Parish of St. Bernard. Plaintiff has been presented with a Master Vessel Charter Agreement (“MVCA”) drafted by BP, a copy of which is attached and incorporated as Ex. A. Members of the United Commercial Fisherman’s Association have entered into MVCAs with BP and have completed some training as required by BP.
Presentation on key issues in tax law for employment cases including employment discrimination cases and other common termination scenarios. Prepared by Robert B. Fitzpatrick of Robert B. Fitzpatrick, PLLC for use in Current Developments in Employment Law, an annual CLE program, in July of 2016.
A presentation by the Crescenz (Philadelphia) VA Medical Center to its Vet Affairs Committee on 1 September 2022 on the PACT Act from the VHA perspective plus the Thomas SERVICE (Mammography) Act.
Admiralty & Maritime Law Pittsburgh - Moschetta Law Firmmoschettalaw
Looking to learn more about Admiralty and Maritime Law? This presentation touches on the Jones Act, Defense Base Act and More. If you have specific questions please feel free to call us at 877-472-1578
Jugement cour suprême pour travailleurs de santéSociété Tripalio
Jugement de la Cour Suprême sur la vaccination obligatoire des travailleurs de santé. Ce jugement infirme l'obligation vaccinale et constitue un revers pour Joe Biden.
“The tradition among all armed services, are much older than any government, more conservative than any department of government, and more sure to build on a foundation that they are certain of, rather than to take any chance of making a mistake.”
--- General William "Billy" Mitchell - United States Army
Complaint filed today 5/6/10: United Comerical Fishermans Association v. BP and Others
VERIFIED SUPPLEMENTAL COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
1. Plaintiff appearing herein is George Barisich, individually and on behalf of the United Commercial Fisherman’s Association, Inc. as President thereof. Mr. Barisich is a natural person of the full age of majority domiciled in, and a citizen of, the State of Louisiana, Parish of St. Bernard. Plaintiff has been presented with a Master Vessel Charter Agreement (“MVCA”) drafted by BP, a copy of which is attached and incorporated as Ex. A. Members of the United Commercial Fisherman’s Association have entered into MVCAs with BP and have completed some training as required by BP.
Presentation on key issues in tax law for employment cases including employment discrimination cases and other common termination scenarios. Prepared by Robert B. Fitzpatrick of Robert B. Fitzpatrick, PLLC for use in Current Developments in Employment Law, an annual CLE program, in July of 2016.
In late September, the Federal Trade Commission announced what is likely the most substantial auto dealer enforcement action in the agency’s history. While most of the FTC’s earlier cases have focused solely on dealer advertising, this action against 9 California dealerships alleges over a dozen different types of violations. And unlike previous cases where there were no initial monetary penalties, this time it looks like they’re seeking massive financial consequences for the dealers involved.
In this informative presentation we’ll examine each of the FTC’s latest claims in detail and discuss best practices on how your dealership can avoid being targeted by federal and state regulators. The game is changing and it pays to be prepared.
Connecticut Automotive Retailers Webinar November 8th, 2016
In late September, the Federal Trade Commission announced what is likely the most substantial auto dealer enforcement action in the agency’s history. While most of the FTC’s earlier cases have focused solely on dealer advertising, this action alleges over a dozen different types of violations. And unlike previous cases where there were no initial monetary penalties, this time it looks like they’re seeking massive financial consequences for the dealers involved.
In this informative presentation we’ll examine each of the FTC’s latest claims in detail and discuss best practices on how your dealership can avoid being targeted by federal and state regulators. The game is changing and it pays to be prepared.
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In this informative webinar, KPA F&I experts Jim Radogna and Ryan Lane will address these potential and legal pitfalls and suggest best practices for avoiding being caught up a “UDAP Trap.”
Unfair and Deceptive Acts & Practices Seminar - Chicago Automobile Trade Asso...Jim Radogna
Dealers have plenty to worry about when it comes to rules and regulations governing the industry, but perhaps the most harrowing are known as “UDAPs”.
Unfair and Deceptive Acts and Practices (UDAP) statutes are consumer protection laws that address what lawmakers consider to be “unethical” or otherwise “bad” business practices. The FTC Act and the Illinois Consumer Fraud and Deceptive Business Practices Act both prohibit unfair or deceptive acts or practices. These statutes have far-reaching implications for auto dealers because they provide for enforcement by the government to stop the practices, individual actions for damages brought by consumers who are hurt by the practices, and even criminal liability.
Dealers need to be aware that these statues are extremely broad and not only prohibit acts and practices that fall directly under the purview of specific laws, but also any other practice that is determined to be unfair or deceptive to the consumer. A behavior can be found to be unfair and deceptive and thus actionable even though it does not constitute fraud, breach of contract, or negligence under more traditional law. As a result, UDAP claims are a favorite among consumer attorneys – especially those seeking class action lawsuits.
There are a wide variety of dealer sales, F&I, and advertising practices that may be considered to be unfair or deceptive by regulators or courts. Some of these are commonly-known, while others may surprise you.
In this informative seminar we’ll address these potential legal pitfalls and suggest best practices for avoiding being caught up in a “UDAP Trap”.
This seminar is highly recommended for dealership upper management as well as sales managers, F&I personnel, sales consultants, and others – anyone who interacts with, or markets to, consumers.
Which Gov't Agencies are Targeting Auto Dealers… and How to Reduce Your ExposureJim Radogna
Discover the Top Areas for Enforcement and Penalty Currently Costing Other Dealerships a Bundle! High Risk Areas for All Dealership Departments.
When it comes to government regulation and enforcement it seems that Auto Dealerships have a huge target painted on the rooftop.
Laws and regulations impacting auto dealers are many. However, this workshop we will focus on the top enforcement threats facing most auto dealers today and how you can prepare and adjust to lessen your dealership's exposure.
You will learn:
Which Federal & State Regulators are most active in dealerships right now
The most common enforcement actions taken against dealerships today
About the specific enforcement cases and the resulting monetary damages
Specific risks for Variable Operations, Fixed Operations & Human Resources
Best Practices to Avoid these very real potential liabilities
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http://sandymillin.wordpress.com/iateflwebinar2024
Published classroom materials form the basis of syllabuses, drive teacher professional development, and have a potentially huge influence on learners, teachers and education systems. All teachers also create their own materials, whether a few sentences on a blackboard, a highly-structured fully-realised online course, or anything in between. Despite this, the knowledge and skills needed to create effective language learning materials are rarely part of teacher training, and are mostly learnt by trial and error.
Knowledge and skills frameworks, generally called competency frameworks, for ELT teachers, trainers and managers have existed for a few years now. However, until I created one for my MA dissertation, there wasn’t one drawing together what we need to know and do to be able to effectively produce language learning materials.
This webinar will introduce you to my framework, highlighting the key competencies I identified from my research. It will also show how anybody involved in language teaching (any language, not just English!), teacher training, managing schools or developing language learning materials can benefit from using the framework.
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June 3, 2024 Anti-Semitism Letter Sent to MIT President Kornbluth and MIT Cor...Levi Shapiro
Letter from the Congress of the United States regarding Anti-Semitism sent June 3rd to MIT President Sally Kornbluth, MIT Corp Chair, Mark Gorenberg
Dear Dr. Kornbluth and Mr. Gorenberg,
The US House of Representatives is deeply concerned by ongoing and pervasive acts of antisemitic
harassment and intimidation at the Massachusetts Institute of Technology (MIT). Failing to act decisively to ensure a safe learning environment for all students would be a grave dereliction of your responsibilities as President of MIT and Chair of the MIT Corporation.
This Congress will not stand idly by and allow an environment hostile to Jewish students to persist. The House believes that your institution is in violation of Title VI of the Civil Rights Act, and the inability or
unwillingness to rectify this violation through action requires accountability.
Postsecondary education is a unique opportunity for students to learn and have their ideas and beliefs challenged. However, universities receiving hundreds of millions of federal funds annually have denied
students that opportunity and have been hijacked to become venues for the promotion of terrorism, antisemitic harassment and intimidation, unlawful encampments, and in some cases, assaults and riots.
The House of Representatives will not countenance the use of federal funds to indoctrinate students into hateful, antisemitic, anti-American supporters of terrorism. Investigations into campus antisemitism by the Committee on Education and the Workforce and the Committee on Ways and Means have been expanded into a Congress-wide probe across all relevant jurisdictions to address this national crisis. The undersigned Committees will conduct oversight into the use of federal funds at MIT and its learning environment under authorities granted to each Committee.
• The Committee on Education and the Workforce has been investigating your institution since December 7, 2023. The Committee has broad jurisdiction over postsecondary education, including its compliance with Title VI of the Civil Rights Act, campus safety concerns over disruptions to the learning environment, and the awarding of federal student aid under the Higher Education Act.
• The Committee on Oversight and Accountability is investigating the sources of funding and other support flowing to groups espousing pro-Hamas propaganda and engaged in antisemitic harassment and intimidation of students. The Committee on Oversight and Accountability is the principal oversight committee of the US House of Representatives and has broad authority to investigate “any matter” at “any time” under House Rule X.
• The Committee on Ways and Means has been investigating several universities since November 15, 2023, when the Committee held a hearing entitled From Ivory Towers to Dark Corners: Investigating the Nexus Between Antisemitism, Tax-Exempt Universities, and Terror Financing. The Committee followed the hearing with letters to those institutions on January 10, 202
Adversarial Attention Modeling for Multi-dimensional Emotion Regression.pdf
NACVSO 2019 Court Cases
1. RECENT COURT CASES
THAT IMPACT
VETERANS & CVSOs
National Association of County Veterans Service Officers
June 2019 – Cleveland, OH
Presenter:
Katrina J. Eagle,
Veterans Law Attorney
2. TOPICS:
TDIU: what constitutes “substantial
gainful employment”? (Ray)
MUCMI and PGW Veterans: interpreting
38 C.F.R.§ 3.317(a)(2)(ii) (Stewart)
Blue Water Navy: definition of Vietnam
for purposes of AO exposure (Procopio)
Medical conditions not presumed
related to herbicide exposure (Polovick)
COURT CASES
3. 38 C.F.R.§4.16: Total disability ratings
for compensation based on
unemployability of the individual
“Total disability ratings for compensation
may be assigned, where the schedular
rating is less than total, when the
disabled person is, in the judgment of the
rating agency, UNABLE TO SECURE OR
FOLLOW A SUBSTANTIALLY GAINFUL
OCCUPATION as a result of service-
connected disabilities.”
TDIU
4. Unemployability – 38 C.F.R.§4.16(a)
Eligibility requirements (Schedular):
• One disability rated at least 60% OR
• Multiple disabilities, with one
disability rated at least 40%, and a
combined rating of at least 70%.
• And, “Marginal employment
SHALL NOT be considered
substantially gainful employment.”
TDIU
5. Extraschedular TDIU
38 C.F.R.§4.16(b): “… all veterans
who are unable to secure and follow
a substantially gainful occupation
by reason of service-connected
disabilities SHALL be rated totally
disabled.” (emphasis added).
6. 38 C.F.R. § 4.16(b):
Veterans who are unemployable due
to SC conditions, but don’t meet the
% requirements, should be referred
to Compensation Service Director for
extraschedular TDIU consideration.
What if the Director denies
extraschedular TDIU?
TDIU
7. Unemployability – case law
VA must consider the claimant’s
work history, education, and
training, and cannot reject a claim
“without producing evidence … that
the veteran can perform work that
would produce sufficient income to
be other than marginal.” Beaty v.
Brown, 6 Vet.App. 532, 537 (1994).
TDIU
8. TDIU & “Substantially Gainful Employment”
Ray v. Wilkie, CAVC no. 17-781 (Mar. 14, 2019)
VA argued SGE is undefined on purpose;
CAVC rejected nebulous concept without more
VA has not defined “SGE,” so the CAVC used
Social Security regulation as guidance.
The definition has two components:
economic AND non-economic.
9. TDIU & SGE
Ray, continued:
Economic = occupation earning more
than marginal income (outside a
protected environment) as the U.S.
Dept. of Commerce defines as poverty
threshold for one person.
10. TDIU & SGE
Ray, continued:
Non-economic factors
the veteran’s history, education, skill, and
training;
the veteran’s physical ability (exertional and
nonexertional) to perform work (sedentary,
light, medium, heavy, or very heavy); and
the veteran’s mental ability to perform regular
work.
11. TDIU & SGE
Ray, continued:
Physical factors may include but are
not limited to: limitations concerning
lifting, bending, sitting, standing,
walking, climbing, grasping, typing,
reaching, auditory and visual.
12. TDIU & SGE
Ray, continued:
Mental factors may include but are
not limited to: limitations concerning
memory, concentration, ability to
adapt to change, handle workplace
stress, get along with coworkers, and
demonstrate reliability and
productivity.
13. When Working TDIU Claims,
Remember:
TDIU determinations are made by a
VA adjudicator, not a medical
examiner
However, the rater should render an
opinion based on all of the lay, medical
and vocational evidence of record
Use the factors listed in Ray (p17) when
explaining why the Veteran does not
have the physical or mental abilities for
SGE
TDIU -- Recap
14. • Doctors are qualified to define physical or
mental limitations caused by a condition, but
have no expertise in translating this info into
the degree of impact on the ability to work,
particularly when dealing with combination of
physical and mental limitations.
• Claims for TDIU can benefit from a
professional opinion from a vocational expert
who can determine whether the veteran is
qualified in education and experience for the
type of job that he is medically fit to perform
(e.g. “sedentary employment”)
• And, or consider VA’s Voc Rehab Program
TDIU -- Recap
15. Stewart v. Wilkie, 30 Vet. App. 383 (Dec.
20, 2018)
Stewart served in Iraq 2/2004 to 1/2005,
suffered from asthma and obstructive &
restrictive pulmonary disease with no known
etiology
CAVC held that the Board had misapplied
38 CFR§3.317(a)(2)(ii) re MUCMI (Medically
Unexplained Chronic Multisystem Illness)
COURT CASES – Stewart
16. 38 CFR§3.317(a)(2)(ii) consists of 2
sentences.
The first sentence sets forth
characteristics of a MUCMI
The second sentence sets forth
characteristics that prevent an illness
from being a MUCMI.
COURT CASES – Stewart
17. 38 CFR§3.317(a)(2)(ii)’s first sentence:
“MUCMI means a diagnosed illness
without conclusive pathophysiology
OR etiology, that is characterized by
overlapping symptoms and signs and
has features such as fatigue, pain,
disability out of proportion to physical
findings, and inconsistent
demonstration of laboratory
abnormalities.”
COURT CASES – Stewart
18. “Etiology” defined: “the science or
doctrine of causation”; also “all of
the factors that contribute to the
occurrence of a disease or abnormal
condition.”
“Pathophysiology” defined: “the
physiology of abnormal states;
specifically, the functional changes
that accompany a particular
syndrome or disease.”
COURT CASES – Stewart
19. 38 CFR § 3.317(a)(2)(ii)’s second sentence:
“Chronic multisystem illnesses of partially
understood etiology AND pathophysiology,
such as diabetes and multiple sclerosis, will
not be considered medically unexplained.”
The Board erred because it found that the
Veteran’s asthma had a partially understood
etiology without determining whether it also
had a partially understood pathophysiology;
i.e., it did not address BOTH parts of second
sentence.
COURT CASES – Stewart
20. Stewart explained MUCMI this way:
Under 38 CFR§3.317(a)(2)(ii), “an
illness is a MUCMI where either the
etiology or pathophysiology of the
illness is inconclusive. Conversely, a
multisystem illness is not a MUCMI were
both the etiology and the
pathophysiology of the illness are
partially understood.”
COURT CASES – Stewart
21. Understand VA’s adjudication
requirements in TL 10-03.
Understand relevant CFR(s).
Claim must identify symptom(s).
Claim must describe exposure event(s).
Submit supporting medical nexus opinion.
Submit supporting medical treatise
evidence.
Rating: consider alternative DCs,
extraschedular, effect on employment.
COURT CASES – MUCMI Recap
22. Procopio v Wilkie (CAFC (1/29/2019))
“Congress has spoken directly to the question
of whether those who served in the 12 nautical
mile territorial sea of the ‘Republic of Vietnam’
are entitled to§1116’s presumption if they meet
the section’s other requirements. They are.
Because the intent of Congress is clear, that is
the end of the matter.”
(Procopio at page 19)
COURT CASES – Procopio
23. Where does the “12 nautical miles” begin?
Various interpretations include:
12 nautical miles from shore
12 nautical miles from a “baseline”
Vietnam declared in 1977 (this is what HR299
calls for)
12 nautical miles from baseline plus
additional 12 nautical miles (contiguous
zone)
Said differently, WORDS MATTER!!
COURT CASES – Procopio
25. Govt’s interpretation of 12 nautical miles:
VA Undersecretary of Benefits: “Blue Water Navy
Veterans who served within 12 miles of shore are
presumed to have been exposed to Agent Orange.”
VA Deputy General Counsel: “if the record contains
a deck log establishing that the ship went within 12
mile of mainland … would support the conclusion that
the veteran entered the territorial sea of Vietnam.”
US Solicitor General: “The (Procopio) Court held
that the Agent Orange Act’s reference to “the
Republic of Vietnam,” includes “both its landmass and
it’s territorial sea” extending 12 miles off the shore.”
COURT CASES – Procopio
26. Why the controversy?
UNCLOS*: “the normal baseline for measuring the
breadth of the territorial sea is the low-water line along
the coast” (low tide) Article 5
“In localities where the coastline is deeply indented…
straight baselines may be employed” Article 7(1)
Vietnam chose to use straight baselines, BUT…
“The drawing of straight baselines must not depart to
any appreciable extent from the general direction of the
coast and the sea areas lying within the lines must be
sufficiently closely linked to the land” Article 7(3)
* United Nations Convention on the Law of the Sea cited in Procopio decision
COURT CASES – Procopio
27. Baseline is 80 nm from shore at furthest point!
COURT CASES – Procopio
28. This is likely why the US refused to recognize
Vietnam’s definition of its territorial sea
COURT CASES – Procopio
29. Another potential VA argument for only
12 nautical miles from shore
Although Mr. Procopio’s ship, the USS Intrepid, was
more than 12nm from shore, the Federal Circuit only
addressed the fact that BVA had earlier accepted that the
ship was in “territorial seas” (because when the Board
ruled, it didn’t really care where the ship was located
relative to shore, it only cared that Mr. Procopio wasn’t
“boots on the ground” and denied on that basis)
As such, any correlation between the location of Mr.
Procopio’s ship and the definition of “territorial seas” was
not considered by the CAVC or the Federal Circuit.
BVA decisions are not precedential.
COURT CASES – Procopio
30. Bottom line to share with Blue Water Vets
It’s unlikely that VA is going to grant any claims beyond
bays, harbors or 12 nautical miles from shore without
additional litigation (i.e., not any time soon).
It’s likely that VA will dig its heels in and fight to limit BWN
benefits as much as it can.
The Procopio decision did not address effective dates. It’s
still unclear how VA will handle that.
It’s likely that VA will drag this out for a very long time
unless Congress passes BWN legislation.
BWN claims and appeals have merit, some may take longer
to win than others. Make sure Veterans know the facts (not
fiction) regarding this change in law. Manage expectations!
COURT CASES – Procopio Recap
31. Presumption of In-Service Exposure:
If Veteran exposed AND suffers a
medical condition presumed by
VA to be related to exposure,
then presumed service
connected unless VA can rebut.
38 C.F.R. § 3.307
38 C.F.R. § 3.309
32. Presumption of Exposure to
Herbicides:
What about Veterans who do not
qualify for presumption of exposure?
Present evidence of actual, direct
exposure
38 C.F.R. § 3.307(a)(6)(i) defines
“herbicide agent” as: 2,4-D; 2,4,5-T
and its contaminant TCDD, cacodylic
acid; and picloram
33. If all criteria for Presumptive service-connection
cannot be met, then pursue DIRECT S/C claim
Combee v. Brown, 34 F.3d 1039 (FC 1994):
Held: “That a medical condition is not
presumptively related to herbicide exposure
does not preclude a veteran from establishing
direct service connection with proof of
actual or direct causation” and that
presumptive service connection “does not
foreclose proof of direct S-C.”
34. If all criteria for Presumptive service-connection cannot
be met, then pursue DIRECT S/C claim
Polovick v. Shinseki, 23 Vet. App. 48 (‘09)
Held: a condition’s absence from the
presumptive list does not preclude a
Veteran from establishing direct service
connection by showing that it is as likely
as not that the condition is due to in-service
herbicide exposure.
Note to VSOs: STOP telling Veterans not to
file when condition is not on a VA
presumptive list!