Court Citation Request

[tssnave]

I have spent the last several days going through my VA files organizing stuff. Apparently I am not such a good organizer when I'm up for days because I am looking for a court citation in my newly organized file cabinet and I can't find it.

It had to do with a case where I think it was the court said that the VA is still required, probably under VCAA, to continue to help the veteran in developing his claim for benefits even after an appeal and the vet and VA are in court. It had to do with the VA needing to remain "non-advesarial" to the vet even while they were in court (if they'd practice that more in the first place we wouldn't wind up in court so often).

Could someone please tell me the court citation(s) that covers this?

A link to the docket would be great as well if you have it.

Thanks,

TS Snave

[Rockhound]

I don't know if this helps you, I believe it deals with prejudicial error by VA in fulfilling the requirements of VCAA

http://www.usdoj.gov/osg/briefs/2007/2pet/...1209.pet.aa.pdf

RR B)

[tssnave]

Rockhound,

Thanks for the citation but I don't think it's what I'm looking for.

In what I read the court cided the VA for not helping the veteran develop his side of his claim during the court process. It reminded the VA that they were to still remain in a "non-advesarial role" to the claimant, to include a disputed claim that goes to court. The VA still has to help the vet "win" or "prove" his claim.

Now, I realize this flies in the face of reality, especially given I've read some former VA attorneys who state that they counted their "wins" when the VA wins and the vet loses and that overwhelmingly an unrepresented vet gets slaughtered at court which makes sense (I was a clerk typist, not a JAG officer).

Hopefully someone can find it for me as I've been unable to find it in my files.

Thanks again for your help,

TS Snave

[Berta]

There are many claims that the CAVC vacated the BVA's decision on and remanded the claims back to the BVA due to VCAA violations-

Do you possibly mean Pelegrini?

Pelegrini V Principi-is one of the hallmarks decisions regarding the VCAA and VA's Duty to Assist.

"ORDERED that the June 13, 2002, Board decision is VACATED and the

matter is REMANDED to the Board for readjudication consistent with the

provisions of this order."

from:

http://search.vetapp.gov/isysquery/4b5e31f...41184092/1/doc/

If the VA has prejudiced the veteran by violation of the VCAA ,the CAVC has attempted to correct that error via many remands-

However many VCAA violations are not prejudicial-

many claims have evidence that mitigates the error (this is my case-my VCAA letter was prejudicial-but I got what the BVA had told other widows to get in VCAA violations they found the ROs committed-this happens a lot- the VA fails to tell the claimant what they need but the claimant interprets the VCAA letter as best they can and sends VA the evidence anyhow-so the error is moot -unless they continually ignore the evidence the VCAA letter should have asked for)

Many VCAA violations ARE prejudicial.

Brown V. Peake:

http://search.vetapp.gov/isysquery/ffa49bb...bfdbfd44/4/doc/

Als0 Sanders and other similiar cases mentioned in this case.

I am not sure what case you really are looking for.

I have tried to study the VCAA for years-

one thing is for sure- the VA MUST read a claim thoroughly in order to prepare a highlighted statement that defines exactly what they need from the veteran.

They also must list as an enclosure- an Election Response Form.

If a veteran receives a generic VCAA letter with absolutely no lighted or underlined statement that specifies what they need and/or No election form listed as enclosure, the veteran has a good chance to raise VCAA violation issue, as the VA has not complied with this regulation.

This is how I got a remand from the BVA in weeks and not in years-

The highlighted statement in a VCAA letter defines exactly what the VA needs.

If they need a buddy statement, or where to obtain private treatment records, or if they need the veteran to obtain an independent medical opinion-it should be stated in the VCAA letter.

[tssnave]

Berta,

Thanks!

TS