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VetlawUS

Second Class Petty Officers
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VetlawUS last won the day on June 18

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About VetlawUS

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    https://www.veteranslawblog.org
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    Army
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    Running, Hunting and Motorcycle riding

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  1. If it's a BVA decision, requesting reconsideration is almost always pointless. It is faster to appeal a denial to the CAVC, as you will invariably get a decision from the CAVC before the BVA "reconsiders"....not to mention, it is RARE that the Board reverses its decision on a reconsideration. (PS....email me the complete BVA decision to vetlaw@attigsteel.com and I can set up a free phone call with you to discuss the strength of an appeal of the denial to the Veterans Court within 48 business hours.) If it is a VA Ratings Decision, read about Reconsideration on the VeteransLawBlog.org - while others debate my position, I have seen far too many Vets get f**'d because they sought reconsideration and the Board or court did not construe it as a NOD, and they lost a lot of past-due benefits. It's heartbreaking, and is why I believe that reconsiderations of VA Rating Decisions are as useful as a pencil sharpener on a fire engine. https://www.veteranslawblog.org/?s=reconsideration
  2. Gastone, Definitely forward that decision to me....always curious to read unique decisions like that. I am always very surprised at firms that bill less than 50 hours (paralegal and attorney) when they prevail at the CAVC ... I just don't see how that is possible unless the file is tiny (less than 200-300 pages)....and I have only seen about 10 files of that size in the last 10 years. That's just one man's opinion though. Overall, EAJA fee rates are pretty low, and it can be a challenge to run a business on those rates. Beyond that, though, the court pretty aggressively trims the hours we work on the case - as they should, given the purpose of EAJA. Point is, I bet that most attorneys have to take a loss on 40-50% of the hours that are actually worked on even a successful CAVC case My counterparts who represent corporate clients are billing $400-500/hr, and when I did employment law (ironically, defending a lot of VA employees illegally terminated), that reviewing Board regularly authorized rates in excess of $350/hr (and that was over 10 years ago). Don't get me wrong - I am not complaining at all - I love the work I do and wouldn't trade it for a 7 figure income ... but I have learned attorneys need to be committed to this practice area and committed to running a well-oiled and efficient business machine if their law firm is going to succeed in representing Veterans in the long run. There are probably less than 50-100 lawyers/firms that have been doing this work for more than 10 years. Far fewer have been doing it 20+ years. I should probably stop babbling about "lawyer woes" and get to work. *smile*
  3. If there is a question about whether the attorney was paid the fee the Court ordered, ask to see a copy of the check they deposited into their Client Trust Account. EAJA Checks are still paper checks (VA setting the bar high on technology, right?) and are made payable to the attorney and the appellant, and most state bars require attorneys to deposit these into a Client Trust Account before moving it into their firm's operating account. Your attorney should have a copy of the negotiated check, or some proof of deposit. One point and one quick correction... First, the correction..... except in rare cases (which to my knowledge has never occurred), the attorney at the CAVC who is awarded fees is paid what is called the "EAJA Rate". That rate is set by the Dept. of Justice (as EAJA is used in many other settings) and is currently $125/hr for an attorney - whether they have practiced 1 day or 1 decade. The attorney can get an "increase" for the cost-of-living by using the inflation indices for their region at the Bureau of Labor Statistics. An attorney in Dallas, for example, can increase that $125/hr to $180-$190/hr, depending on what is happening in that region inflation-wise at the time the petition for fees is filed. For comparison purposes, when I was in Dallas as a private employment attorney over a decade ago, could typically bill a client between $250-375/hr. Under EAJA, even though I have more experience than a brandy-new attorney, that attorney could make much more than me depending on the location of their firm. In my opinion, it's just another obstacle that prevents more attorneys from making a career of representing Veterans. Second, a point. There is something called the "EAJA Offset", and folks have mentioned it above. It works like this. If you have an attorney at the CAVC who receives EAJA fees, AND who later is entitled to a contingency fee on the same issue on remand to the Board/VARO, the attorney must refund the lower of the 2 fees. He cannot keep both - most attorneys offset the higher by the lower. The key is they have to be the same issue. If an attorney wins you a remand at the Court on a sleep apnea denial (for which the fee is ordered to pay $6000), and then recovers a past-due award on a veteran's diabetes claim, the attorney is entitled to keep both, because they are separate issues. Hope that makes sense. I cover all this (and more) in my book "How to Choose a VA Claims Attorney" FREE eBook Version: https://www.veteranslawblog.org/product/hire-attorney-va-claim-appeal/ Buy the paperback version (publisher sets the price, which is why it is not free): http://www.lulu.com/shop/chris-attig/how-to-choose-a-va-claims-attorney/paperback/product-22649916.html
  4. I'd be happy to take a look at the BVA Decision to see if there is an appeal possibility at the Veterans Court - you have 120 days from the date of the Board decision to appeal. Shoot me a copy of the BVA Decision to vetlaw@attigsteel.com and we can have an answer to you before the weekend (if you get it to me today). Effective date appeals to the Veterans Court have 2 forms of relief (for the most part): Reversal, where the BVA error is "clearly erroneous", and remand for a new BVA decision when they do not adequately support or reason their decision. When my firm takes cases at the Veterans Court, the Veteran never pays us. If we win, the VA has to pay us out of its own pocket (NOT your past-due) under the Equal Access to Justice Act. If we lose, we lose. It is effectively "pro bono" for the Vet, but since the VA pays us when we prevail, we cannot say that our services are free...they are just free to the Vet. Chris
  5. Thanks for that reply, mojotiger. I value your feedback and you make some points that I would like to think over. One quick note - the cases I am looking for aren't cases I can easily define, and they often don't present until we see the file and study it. The best way I can describe what I'm looking for are issues that can have a positive impact on a lot of Veterans. If I could find a way to describe that on the website without discouraging folks from submitting requests because they feel their case may not have a 'big issue' in it, I would. Open to suggestions, there. Regardless, thanks for your feedback...good or bad, it's always welcome. Chris
  6. Hey guys, I appreciate the feedback. Always good to hear the positive and negative stuff - let's us know what we are and aren't doing right, so thank you!! Let me try to address some of the concerns above: First, the Veterans Law Blog isn't a law firm, so I do not give any legal advice through the VLB. On the VLB, my goal is to teach Veterans how to take back the power and win their own claims using my "8 Steps to Improve your VA Disability Claim" process. If I get requests for legal advice through the VLB, I don't respond directly to the requestor - I usually "answer" those questions by writing a post that everyone can read (not mentioning your names, of course) or recording a video that answers a question that many of y'all ask. That's one of the reasons the info on the VLB is so helpful - if one vet has a question, there's a good chance that thousands of others have the same question. I also don't typically answer questions on topics I have written about - for example, I rarely answer Sleep Apnea questions, because darn near everything needed to prove up a Sleep Apnea claim is in the book. If someone asks a question that is not in the book, I write a post on it, record a video, etc. I also don't answer "do I have a good case" type questions sent to the VLB. There is no way for me to give that kind of reassurance - we have to find that kind of confidence in our claims by "doing", if that makes sense. I just don't have the staff - or the capability - to provide one-on-one feedback for anything other than customer support on the VLB. Maybe someday that will change, but the VLB works on a shoe-string budget to keep costs low. Third, I do have a law firm, Attig | Steel (attigsteel.com). As you imagine, I get thousands of requests to get hired each month. Many of you know this, and offer to pay me crazy amounts of money to talk to you (which in most cases would be unlawful for me to do). When I say no, it's not that I don't want your money or your case. What I want - what I am trying to do with my law firm - is something very different than what any other firm is doing. We are not "in this for the money", so we take our time deciding which veterans and cases we work with. I walked away from 2 cases last month that would have been the largest dollar amounts I've ever recovered; I referred them to another firm instead. Why? A "win" would have impacted only one vet. Other attorneys think I'm crazy - and many of you will think that, too. But if I wanted to get rich being a lawyer, I'd run for Congress or practice in another area - there are much easier ways to get rich. I choose to do this work with my brother and sister Veterans for very specific reasons. Let me try to explain. I am looking for cases that will have the broadest impact on the most veterans, and figuring that out takes time. Think of it like this - an artillery round can take out a large number of enemy troops with one shot. A sniper can take out one with one shot. I am an artillery guy - it takes time to get the guns in position, to chart the round, to calculate the charges needed, and to adjust fire before firing for effect. The firm declines to consult with a lot of Veterans that have good cases just because we can't possibly help - or even respond to - everyone. The gang in my office here is instructed not to respond to telephone calls for consultations; other firms do this sort of thing - we do not. If the request is made by phone, facebook message, email, text, etc., we typically will not respond. Our phone answering message directs folks to make consult requests through the website. Additionally, we never respond to requests that simply say "call me", or "help me". If a vet/survivor doesn't take the time to give us a good idea what their case is about, I promise we will not call back. Not enough time in the day to pull information out of one person when thousands of others give information we can sink our teeth into. I have a solid staff - their #1 job is to keep me as far away from the phone as possible - I say that somewhat "tongue-in-cheek". My team knows I like talking to vets so much that I'll talk to a single vet for as long as 2 hours, and get no other work done. Second, we do look at c-files in a small percentage of consultation requests - when we do, we can take several months to get the file and conduct the review, and there are hundreds of reasons this is the case. That said, my law firm primarily focuses on CAVC and Fed Circuit cases - we are looking to change law and precedent on a bigger scale. (I am getting admitted to the U.S. Supreme Court Bar this week, in furtherance of that goal). So, if you've been turned down at the BVA (not the Regional Office), we can usually tell you pretty quick if we can help or not. If that is your situation, submit your request here: http://www.attigsteel.com/bva-decision-contact/ Bottom line - if you didn't get a callback from my firm, I am sorry. Hopefully this helps you understand why that may have been your experience. Chris Attig
  7. Joe, I've looked at this case for several days, and there are a lot of reasons that it could be going to a panel. The appeal raises issues that the Court has not yet confronted or is developing law around - attorney as a witness, value/weight of treatise evidence in the context of reopened claims, and it could just be because there is a reasonable debate as to the outcome. Finally, there are a couple issues neither side briefed that the court may be considering. I don't want to speculate any more than that since you are rep'd by an attorney and I don't want to interfere with his relationship with you or his plan/strategy. In many cases like this, but not always, the Court might send out an order to the parties to brief additional issues or to answer discrete legal questions not fleshed out by the parties. I wish I could give you a more definitive answer, but that would involve a "crystal ball" into the judge's thinking....which may become apparent later. Please let your attorney know that, if he gets such an order, I would be happy to talk with him about it. Chris
  8. This could mean a few things. Most CAVC decisions are decided by a "single judge", but in rare cases they are decided by a panel. A panel is 3 judges selected by, I believe, the Chief of the Court (currently Judge Davis). Typically, a party moves for a panel decision when a) they are denied by a single judge or b) they have an issue that they think is better done by a panel (see below). Judges can also "sua sponte" - meaning on their own motion, not from a party - send a case to a panel. Here are the reasons why that might happen: 1) Decision would establish a new rule of law; 2) Decision would modify or clarify an existing rule of law; 3) Decision would apply established law to a novel fact situation; 4) Decision would constitute the only recent, binding precedent on a particular point of law; 5) Decision would involve a legal issue of continuing public interest; or 6) Decision which would resolve a case in which the outcome is reasonably debatable. If you tell me your docket number at the CAVC, I am happy to take a look and give you my best guess as to why it's going to a panel. If you are interested, here is a post that explains single judge and panel decisions from my Veterans Law Blog: https://www.veteranslawblog.org/court-of-appeals-for-veterans-claims-law/
  9. Hi Vetlaw, would you mind taking a look at my post and giving some insight?

     

  10. Berta....good to "see" you again! Hope you've been well. Are those Reconsiderations after the Rating Decision at the DRO level, or Reconsiderations by a Board judge?
  11. Buck, Happy to weigh in. Wish I had more time to post here more frequently. That said, my firm is happy to review any BVA decisions as long as you are within the appeal window (120 days). We don't charge anything for that (and we don't charge the Veteran for court work...if we win at the Court, we ask the Court to order the VA to pay us out of their pocket, not the Vet's). If you submit through the website, I have an alert system set up for our staff to prioritize the review, and we typically have an answer/decision on Court cases in 24-48 biz hours once we get a copy of the BVA decision: http://www.attigsteel.com/bva-decision-contact/ We do take admin appeals of Rating Decisions (DRO, e.g.), but take our time considering and evaluating them, and are taking fewer of those cases. This is because we are working really hard to find cases that can change the law for a lot of Veterans, especially cases that implicate constitutional violations we think the courts need to set standards for.
  12. Effective dates for TDIU typically can go back as early as the original "claim" for IU...schedular or extraschedular. A claim for IU can be a) any request for increased rating where unemployability due to the condition is mentioned , or b) the submission of 21-8940. The VA often uses the 8940 date, and wrongly does not consider earlier dates. Not saying that happened here, but it's worth looking into. I am a little curious how the Board used the 2016 opinion to out-weigh a contemporaneous 2004 exam in your favor. Not saying it's wrong, but I'm also not saying its right.
  13. I can't give legal advice on a message board, but my firm's daily work is handling CAVC appeals. Happy to take a look at your whole decision and then I can call and discuss it with you. Email the whole decision, and your preferred contact info, to me at vetlaw@attigsteel.com or go here to submit the info: http://www.attigsteel.com/bva-decision-contact/ Generally speaking, and with the caution that I only see one page of the decision, if that is a 2017 decision, and the Board is relying on a 2004 Exam to deny the claim, I have some concerns. Also, the Board is supposed to consider lay evidence, as you mention, but they don't have to mention every piece of it - that said, the Board commonly ignores any reference to such evidence at all, and that could be a remandable/reversible error, depending on how the rest of the decision reads. How a court appeal would turn out largely depends on what is (and is not) in the rest of the decision. I have been doing this since 2007, and I cannot recall seeing but 1 or 2 BVA decisions changed on reconsideration. Not saying it doesn't happen, but I've seen glaring factual errors (wrong vet's medical records referenced in decision) and the Board still won't reconsider. Regards, Chris Attig www.attigsteel.com
  14. File the appeal (NOD) before the 1 year deadline. Whether you previously withdrew it or not. If you do this before the 1 year from the date of original ratings decision denying, they have to consider the appeal - no matter what. The only defense that they have is that they told you to withdraw in exchange for reconsideration - if they say that, get a lawyer asap. Seriously, this "withdraw-your-NOD-for-a-reconsideration-that-doesn't-exist" is a fraud and deceptive, and I know that there are lawyers looking for a fact pattern like this to challenge it. But you have got to file that NOD on time, first. Within 1 year of the date of the original decision denying. And then remember the lesson: when it comes to the VA, the only thing you should "withdraw" is your benefits from a bank account. Seriously...no good comes of withdrawing anything, and it is usually a trick.
  15. I'm an attorney by profession, but by passion I'm a Veteran (US Army, Artillery, 1993 - 2004)...so when we talk about context, the context I operate in is the context of the VA Bureaucracy doing whatever it can to screw over my brother and sister Veterans. Again, I may be wrong....I truly hope I am......but I'm going to err on the side of preparing the Veteran to be ready for whatever BS grenade the VA chunks our way. Folks that regularly read my blog know that's my style. The best defense is a good offense....and if there is one thing I've learned dealing with the VA, it's that they don't screw with the Vet that is prepared and educated....it gets to be too much work to pick on someone that knows what they are talking about. So, they pick on the ones that aren't ready, that don't understand, that are misinformed...because those are easy targets and easy wins for the VA. The VA is gunning to cut out as many VA benefits as they can...they are pushing for a legislation proposal around this Memorial Day that will make us wish we never complained about the current appeals process .... then mark my words, after that they are going to try to gut TDIU. Much love brother...... truly, I'm not trying to pick a fight with a fellow Veteran...my beef is with the VA, and the Congress and Courts that sit back and watch the VA screw us over. I want you to know my agenda is about something much, much bigger than a blog or a law practice. Chris
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