The Law Of Veterans’ Benefits 2008-2010: Significant Developments, Trends, And A Glimpse Into The Future

[rakkwarrior]

I spoke in another thread regarding precedent court decisions. Here is a link to the Veterans' Law Review. this will guide the reader into the implications of such precedent decisions and how they will affect the VBA in the coming years. Some of the Court cases I spoke of in my other thread, are found here.

http://www.bva.va.gov/docs/VLR_VOL3/1-Allen-TheLawofVeteransBenefitsPages1-66.pdf

Feel free to comment, this is an open discussion. I am not an "expert" in VA law, I am a student of the ever developing system which affects my comrades...brothers and sisters. I firmly believe no matter how much you, know, or how degreed you are, when you stop learning and think you "know it all" you have lost the war, no matter how many fights you have won henceforth.

[carlie]

I'm no expert, but would 'mere speculation' represent 50/50, as in maybe, maybe not? If that is the case, would arguing relative equipoise be a good idea?

NO

[Capt.]

Hello Rak and others, Thank you Rak and Tbird and others for saving this artilce review into the system. I just got thru going over this Law review and like the author points out that Due Process and Equitable Tolling are 2 of the bigger issues. That precential law has been pretty much stalled when it comes to Veterans. This gives us an insight to just how "unfair" the Claims process is and the whole system. That even the Federal circuit and Supreme courts are somewhat baffled as to how these laws and the Secretary should act, and even its decision making processes and courts, which operate outside of its very own laws. The nonadversarial process which is suppose to be in place, but the fact that it is nothing but adversarial from the start, leaves the whole system with huge problems of which myself and most all veterans get locked up in this huge time capsule.

I don't think that anything but solid evidence will trigger the relative equipoise part of the "Benefit of a Doubt Rule" in 38 CFR 3.142(I am not sure if my memory serves me so the number may be wrong) and get a favorable ruling.

I was encouraged with some thoughts of the review and discouraged by the reality that its been broke so long that there is not a quick fix in store for the Veteran Community. As always the Veteran has to remember to NEVER GIVE UP. God Bless,,,,,,C.C.

[Philip Rogers]

I found this quite interesting! The court recently remanded my claim, for SMC, requesting an opinion from the C&P doctor as to whether my PTSD kept me from leaving the home, to go to work. My latest C&P doctor stated she could not answer that question as it would be mere speculation. From this I can see that the VA has instructed the C&P doctors to respond to that type of question, in that manner. Just another way to keep the claimant running in the hampster wheel!!!

pr

[rakkwarrior]

Phil the court is saying just the opposite, rather than to allow a position to cop out, with what relying on opinion that states they cannot resolve the question "without resolving to mere speculation" requires a more a substantive opinion giving a rationale as to why.

On remand you should obtain hey very strong in substansive medical opinion stating why you're unemployable, to buttress your position. Doing so well in sure that even if the RO or AMC does blindly and typically upholds the denial, the veterans law judge will have ample room to grant.

[Philip Rogers]

rakk - I understand that. The VA was trying to skirt around it but the court is saying "no can do." This gives me more ammo. Thanks!

pr

[rakkwarrior]

rakk - I understand that. The VA was trying to skirt around it but the court is saying "no can do." This gives me more ammo. Thanks!

pr

Glad you got that, my phone is so sloppy with the voice recognition stuff. Guess I should just type it. It's just easier on a laptop.