Cavc

Berta · July 23, 2007

I think we all know that if a vet goes to the CAVC, the court's decision is solely based on the record at hand.

The chance to obtain buddy statements and IMOs is long gone-

There is no way , after the NOA is filed with the court ,to expand the record with evidence.

EXcept for one thing-

The Court can be requested to take "judicial notice of fact".

The fact" must be one of "universal notoriety" which needs not to be proven. (Page 1148 VBM NVLSP 2006)

What this means is- I use treatise and medical printouts for claims -but only as icing on the cake.

They are only in support of what the medical evidence reveals.

Often -as in case of Vietnam Veterans of America-(Air Gun inservice innoculation as cause of hepatitis award )

the VA will consider medical treatises or abstracts.The VA awarded this hep vet on the basis of a medical treatise from England. The VA could provide no medical rationale of it's own to combat or question the basis of the treatise.

I discussed this great award with Monte Wilson of the VVA. It made history in the realm of VA comp.

Most of the time the RO will simply list them (med abstracts etc)as "internet printouts" in a SOC and never even read them.

I use them all the time with local and vet org vets issues but

as I mentioned-only icing on the cake of a thoroughly established nexus and well documented claim.

Because-if a vet has to go to the CAVC, asking the CAVC to take note of judicial facts-such as established medical principles -is one way to expand the CAVC record possibly to the claimants

advantage. If the vet has not attempted yet to use abstracts or med texts to support their claim.

If you use medical printouts as part of your evidence-and the RO ignores them-there is a very very good chance that the BVA will NOT ignore them- also the CAVC will not ignore them-(Colvin V. Derwinski)

If however, no substantial treatise, or medical text or abstract have not yet been provided to the VA in support of the claim-

only by asking the court to take formal judicial notice of an established medical fact.

NVLSP says that Brannon V Derwinksi reveals the CAVC's aversion to this type of notice.

Because this type of evidence should already be part of the record at the BVA.

As I have said before "surround the en" meaning of course not the enemy-but surround the VA with evidence.

Send them all you have.

Make the claim as simple to understand as possible.

The nexus and the claimed disability should involve very few words for them to read.

It is the evidence that matters.

EVidence should never be cummulative or redundant.

Each piece if evidence should be able to almost stand on it's own.

It is not quantity but quality but still- with some research a vet can often provide many types of evidence and it might only take one single piece of evidence out of 10 submissions of probative evidence -to award the claim.

In my case- I have considerable medical evidence submissions in addition to 3 IMOs that support the claim and also evidence from the VA itself.

While I believe the VA will focus on the IMOS (unless they were lifted from the c file AGAIN)

the additional evidence I sent should certainly award the claim.

I already proved to VA I was medically competent as I proved the wrongful death.

STILL-

I sent them plenty of evidence- each piece of it was probative and compelling and each piece could stand alone as documented support for my AO death claim.

If a rater only pulls out and reads one or two of my submissions- they have enough to award.Each submission is unique as to the clinical record and the point of the claim.

VA's statements in past SOCs and other correspondence also were highlighted as to how they support my AO claim.

So I mean send them all you have- but make sure it is all worthy evidence- with substance.

The only other way to expand a record at the CAVC is to challenge a VA regulation -

meaning the CAVC plaintiff has to convince the CAVC that the VA's established rule making procedure beyond whatever rule -making documents proferred by the VA in th instance of the specific case-by compelling the CAVC to include the administrative record of VA as part of judicial review.

This exciting facet of CAVC case law is found within 38 USC 7104, Floyd V Brown, and further explained in the VBM 2006 edition.

Anyone filing a NOA at CAVC needs to obtain a lawyer unless they are fully versed in the CAVC mos and are willing to do a lot of reading.

I dont recommend ever filing Pro Se with CAVC .

Although if I need to file a Mandamus writ on one of my claims-

I have evidence of all of the steps I have taken since Jan 2003 to obtain a decision from VA.

I will file this writ pro se but I do not recommend it at all for 99.9 of all CAVC cases that hinge on too many serious factors that go beyond filing a mandamus writ.

If some lawyer contacts me as they did in the 1990s- and wants to rep me on the writ- thats OK too. Usually they dont want to rep writ claims.

A proper decision on my AO death claim will render this specific writ a moot issue anyhow.But I prepared it already just in case.

Edited July 23, 2007 by Berta