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juan felic

Vet law judge

Question

DAV recently hired a lawyer to rebuttal my sleep apnea case and why VA denied it after several months I received a letter saying that the lawyer had won my case and the decision had to be remanded. My question is can the Veterans Law Judge go against what the court decided and once again deny my claim or just sign on the dotted line. E benefits says my case is currently in his hands.

 

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4 answers to this question

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 Good Question Juan

I am not 100% sure  but

I would think the VLJ Judge can decide it  if he don't put it on someone else back?  they usually want it decided at R.O level..but if its been in remand a bunch of times  the Judge usually decides it .

SO I WOULD SAY YES THEY CAN.

Members ,broncovet or Asknod would know for sure on this!

Edited by Buck52

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 "My question is can the Veterans Law Judge go against what the court decided and once again deny my claim or just sign on the dotted line "

You mean you won at the CAVC ?( US Court of Appeals)

and then it went back to the BVA for a decision consistent with the Court's decision?

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DAV is repped by Chisholm, Chisholm and Kilpatrick (CC&K). If they won a remand as you say, it would be an a) reversal and remand to comply with the Court's directives; b) a vacate and remand for a do over at the BVA;  or c) a set aside and remand with the Court telling the VLJ to fix it. A win is a nebulous thing at the CAVC. A real win means the VLJ has to don sack cloth and ashes and admit he came to the wrong conclusion. After that, he remands it back to the RO to implement his "new" finding of fact. Eventually you get some $.

If the vacate and remand is to gather more facts due to an arbitrary or capricious rationale for the denial, the VLJ may re-deny it using the proper statute and regulation. Not all result in a win- just another bite of the appeals apple. This is your wakeup call to get a new IMO and fix the problem that caused you to lose. In your case, it was relying on the DAV. I'm gonna bet you got a letter from Roy Spicer by now telling you you're in good hands with DAV. Time for an attorney pronto if it's a vacate and remand.

If CC&K and the VA OGC mutually agree the VLJ screwed it up, they can ask for a Joint Motion to Remand  (JMR) to fix it. I always put teeth into a JMR so there can be no "Well, Johnny Vet didn't specifically ask for that. He just agreed to the JMR-not what was to be the subject or the outcome of the JMR. I lost out on that in 2013. They JMR'd me back to the BVA and the horse's ass VLJ gave me 100% for my HCV but ignored the denial of my Agent Orange disease. I waited a year with a CUE filing, SOCs and SSOCs and finally filed an Ex Writ to fix it over a year later. 

A Reverse and Remand is the CAVC saying "Where did you go to law school? In Uganda? Here's how the Court wants you to fix this: Give the Vet X and Y  effective to the date of his original filing and be quick about it".  

 

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The short answer to your question is "Yes", the BVA can deny (again) after a CAVC remand, but the BVA is required to follow the instructions given by the CAVC judge.  

Longer answer:

For example, the judge may think a C and P exam is required, as he may think the old c and p exam was defective for one of several reasons.  A remand is "sort of" a good thing in that it means your attorney can submit "new evidence" AND that "new evidence" will yield an effective date back to the date you applied (or facts found)  See 38 CFR 3.156 B "pending claim".  Otherwise, submitting new evidence (not new service records, those are dealt with in 38 CFR 3.156 C), yields an effective date the date you submitted new evidence.  

DAV (also) refers Veterans cases to the law team at NVLSP, too, unless that has changed. (unlikely).  When the DAV refers your case to NVLSP or, as Alex suggested, CCK, you dont have to pay attorney fees.  

In other words, the DAV felt winning your case was important to many Vets in a similar circumstance, so they hire a lawyer.  Im not sure what the relationship between DAV, CCK and NVLSP is, but, hopefully its a friendly one.   I know the NVLSP can "live" on EAJA fees, by screening cases where they are pretty sure of at least a remand as that generally results in EAJA fees most of the time.  In other words, the Equal Access to Justice pays your attorney fees.  

  A remand essentially means that your case is "sent back" to the lower court, in this case, the BVA, for a do over per the CAVC instructions.  

As Alex pointed out there are different types of remands at the CAVC level, and you did not specify which type of remand it was.  JMR, VAcate and remand, etc.  

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