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FormerMember

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Shoot. I look forward to this. It's pretty cheap entertainment. I consider it a success for one reason. It's winnable and creates that precedence so essential to all our claims. If VA was able to throttle all EAJA fees for Ex Writs, we'd be in a world of hurts. This is just one of those appeals that deserves to be addressed. Otherwise, I'd just say screw it and walk. Every case is unique. This is a classic example. 

Win or Die, ladies and gentlemen.

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What steps could or should a Vet's attorney take to insure that an error of this type is discovered earlier rather than later.

I could be wrong but as I recall, in Civil Litigation, the Judge directed one of the parties attorneys to write up the Order for his signature. All parties are then provided a copy of the Judges order.

Doesn't work that way at the CAVC?

Semper Fi

 

 

 

 

 

 

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The OGC wrote up the body of the JMPR. We all signed it and it went back to the BVA. The VLJ granted but pointedly avoided the Porphyria argument. The AMC handed me 100% back to 94 and then I began the wait. Recalling mandate on these things is time-consuming and often a waste of time. An Extraordinary Writ accomplishes it in a short period. Getting the CAVC Judge to recognize the metrics seems to be the problem. All he sees is a Writ-ergo no EAJA. Getting VA to fix something promptly solves the argument that they are dogging it. That is the catalyst theory. You file for the Writ and it prods VA into fixing it. But the accepted knowledge is that it never would happen unless you file. VA's attitude is "Hey. You got what you wanted. We're not going to pay your attorney for attacking us-even if we were wrong."

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This should be interesting.   My intiution tells me that this is about the defination of "substantially justified" (or, in the obverse, substantially unjustified), since the judge alone, seems to be willing to define whether or not "your case" is substantially unjustified, and eligible for EAJA fees.      Further, even tho I understand that EAJA fees are "regularly awarded" to Veteran claimants sometimes things like this are often "all about the money boys".  

And I can certainly "get" that 3,900 was not a particularly large amount for you to pay considering that a 1994 effective date award was certainly six figures, and maybe even about half way to 7 figures.  It was my understanding that EAJA was for the purpose of, well, poor people getting representation, so it follows that someone who was just awarded "a rather large sum" would not need his fees paid by EAJA.

All this said, I think you are doing this as a service to other VEts who have been unfairly denied by the VA for decades, until they file a WRIT.  Frankly, I would love to see VA have to pay EAJA fees on Writs, even tho about 99% are denied, but many of those "denied writs" ultimately result in benefits anyway.  

I am one such Veteran who had a "denied writ" that occurred "right about the time" I was awarded 100%, and that timing did not seem to be a coincidence.  

The dichotomy here is that Vets can use a Writ to obtain their benefits, even tho its a virtual certainty the writ will be denied.  

I was not able to find an attorney who would do a Writ..so I did mine Pro Se.  

The "victory", I think for a Vet in filing a Writ, happens when the Judge orders the VA to "answer" the writ.  I think maybe its not mandantory for the judge to do that, he could likely simply deny or dismiss the writ as groundless without even hearing the VA's side.  

Frankly, I would like to see more Writs filed.  One reason is the both the  Board, and the RO are  rather famous for just plain "not addressing" issues raised by the Veteran.  Its very difficult to appeal a "non denial" "non addressed" issue.  For one thing, most Vets simply dont know how to do this.  I mean, gee, what would the nod look like?

    I disagree with the non decision on the unaddressed issue of the failure of the Board to adjuticate the Veterans xxx claim.

 Well, how does the Veteran know that its unaddressed, since the VA simply has "no time limit" to address the claim?  The VA can always respond...gee we are working on it, so sorry about the 6 year delay.     The VA can also "quietly close" a pending claim absent a formal decision.  (This has been done to me at least twice).       I personally did not get an initial claim adjutication for a 2002 claim until 2008.  I probably should have filed a writ earlier.  

    Vets need a good avenue to compel the VA into compliance, and that vehicle seems to be a writ.  I would like to see enough writs filed the CAVC gets tired enough of them and SOMEBODY says to VA, 

"This is enough.  The VA can not just keep violating regulations with impunity, its time to force the VA to do what they should be doing all along."    

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