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Back Case At The U.s. Appeals Court


dav_marine72
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  • HadIt.com Elder

Hi Everyone,

I wanted to know if anyone has had a good experience at the U.S. Appeals court. I am not feeling good so far. The case has been there since April of this year and my lawyer has not gotten my C file yet. The VA attorney keeps telling her it's in the works. My attorney said after she gets the C file she has 45 days to find any mistakes that were made. She then sits with the VA lawyer. If they can't reach a deal I'll have to wait 18 more months for a decision. Seems insane. Anyone had luck with a deal?

My case doesn't seem crazy does it? Rated 20% for degenerative disc decease and 10% for the nerve pain in my legs from it. Although I have bent to meet only a 20% rating at times (which is why they are denying me) my condition is much worse. Three levels of DD, failed surgery in 2000 with scar tissue at two levels, oxycodene 4 times a day, nerve blocks every other month, pain doctor is recommending a spinal stimulator, I take ativan and buspar 3 times a day for the anxiety and panic attacks from the severe pain, 8 jobs in 4 years (fired from a couple and left the others because they were complaining about my performance or days off because of back), pain is always a 9 or 10, miss 6-8 weeks of work a year, can't do anything at home, can't lift anything, back brace all the time, sometimes a cane, can't sit, stand or walk very long. Seems to me I rate more than 20% but who knows with the VA. Thanks.

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Actually, yes, we've reached a couple of joint remands in the past at the Court of Appeals for Veterans Claims (CAVC). It's not a real quick process, but doesn't take as long as when your appeal goes before a judge at the Court.

The lawyers pouring over your claims file is called Designation of Record. Once that's done, if your lawyer and the VA lawyers can find areas on which to compromise (weak arguments or lack of evidence to support their respective positions), they may be able to work out a joint remand, which is quicker than having the Court decide to remand the appeal. For instance, if the VA is basing their case on range of motion arguments that don't take into account the pain factor (DeLuca), then they would easily realize that, as would your attorney, and acknowledge that they screwed up. They would then like to avoid this going on formal record, so they might tell your attorney, OK, we didn't do such and such, admit it, and voluntarily are sending the appeal back to the Board to re-evaluate.

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  • HadIt.com Elder

Thanks I feel a little better now. The first thing my attorney said when she looked at the BVA and regional office decisions was why was there no mention of Deluca B)

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Yow- you are at the CAVC with a claim like that?

Do you mind giving us the BVA citation and docket number of the BVA decision you are appealing at the CAVC?

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  • HadIt.com Elder

Hi Bertha,

Thanks for your time as always.

Here is the link to my BVA case:

http://www.va.gov/vetapp08/files1/0808584.txt

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Thanks I feel a little better now. The first thing my attorney said when she looked at the BVA and regional office decisions was why was there no mention of Deluca B)

Keep in mind that the court rules on facts of law and not medical evidence. There were a couple references to Deluca in the BVA decision and one instance where they gave you the benefit of the doubt. They complied with the requirements of the staged ratings etc...... Don't know if they complied with all they should have - that will have to be left for your attorney.

I a few references to negative private evidence - ie no problem bending - did you submit that or did the VA obtain it - just wondering.

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In a joint remand, the appeal never reaches the Court, so to my understanding, the attorneys can settle for a compromise based on whatever the grounds for that compromise may be. The Court to my knowledge doesn't normally derail a joint remand sending an appeal back to the Board, whatever the grounds.

One of my husband's appeals to the Court ended up in a joint remand back to the Board, and it was for a lumbar spine rating based solely on range of motion arguments, without the Board mentioning DeLuca. It went back to the Board, the Board gave an additional rating percentage, but we're not happy with the effective date, so we're awaiting another Court appeal. Ricky's right, I also saw discussion of DeLuca in the Board decision, so it appears the Board did take that into consideration, perhaps not sufficiently, which is where your attorney is going to earn her fee.

However, if the appeal does reach the Court, the Judge (or panel of Judges) does exactly what Ricky states -- the Court does not consider arguments on medical evidence or awards ratings -- they strictly deal with the legal process; a "win" at the Court sends it back to the Board to re-evaluate in accordance with the Court's directive. A joint remand achieves the same thing, only in shorter time, without the risk of the Court denying the appeal.

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