Significant Judicial Precedent And Its Effect On The Board Veterans Appeals

[Tbird]

Significant Judicial Precedent and Its Effect on the Board Veterans Appeal

new page on the main hadit.com site, check this out and see what you think. i plan on adding more to this and if you have an idea let me know

[tssnave]

Tbird,

I think this is a good idea since we need to quote case law in our appeals.

I would suggest, for those of us who have trouble sometimes reading entire cases to get to the meat of the issue, or understanding the ruling at the bottom without reading the entire case, that you put a header on each case that gives us an idea of the point of law it covers.

For instance:

Karnas v. Derwinski, 1 Vet. App. 308 (1) (1991)

VA cannot reduce rating without evidenciary support

Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002)

Rating Criteria Not an Exhaustive List - you do not have to have every symptom in a particular % of the rating schedule to get that rating, you can have only some of the symptoms and still get that %

When I was working my claim, Berta suggested I call the NVLSP on a question I had on the VBM. In the course of that conversation, the young lawyer told me that I needed to cite Mauerhan in my appeal because I had been denied a 70% rating because (according to the VA rater, not the C&P exam) I didn't meet one of the criteria in the rating schedule for 70%. It was then that I started to fully grasp that I was in a legal battle and needed to understand not only the M21-1MR but also current court cases that could impact my claim. That is why I started subscribing to The Veterans Advocate.

I think this is a great idea and am only suggesting you make it more user friendly. Sometimes when I'm on top of my game I can read the court cases and understand them and how they may or may not apply to my claim. However, there is a lot of time that the best I can comprehend is just a short blurb like "VA cannot go fishing for an extra C&P exam" which, if memory serves me correctly, is what the Mariano case is all about (a quick Google search turned this up: Mariano V. Principi warning against the VA doctor shopping). This is a case that Berta wrote about several times when I was working my claim and while I didn't need it for my appeal, I was empowered knowing that the VA was not supposed to go doctor shopping which I was concerned about since I had an excellent C&P exam.

Thanks for inviting our feedback. I appreciate the work that you do to help veterans like myself. Keep up the good work and thanks again!!

TS Snave

Edited March 4, 2009 by tssnave

[Pete53]

tssnave:

Very good reply

[Berta]

GREAT Tbird- h0w do you do all this work?

Fabulous Idea-

I hope I can offer some NVLSP interpretations-as the recent CAVC decisions become public . I am trying to get their permission to quote the Veteran's Advocate publications.

The very first VBM I bought (1991 Edition and supplements)

had an entire section on COVA decisions and a brief description of each case.

It was great but now they reference those decision and CAVC ones throughout each chapter of the VBM, where they are relevant (and many old ones from COVA still are-like WAshington V. Derwinski, Murcinak V Derwinski etc.)

TSSnave I regret we all have to become legal beagles to succeed with the VA.

This is the job those well paid NSOs and vet reps are supposed to do.

Still- we are able to help so many others when we ourselves try to understand the legal beagle stuff.

I love the legalise aspect of the VA claims process but

feel it is a travesty to have to expect any disabled vet to wade through it all.

CAVC and the COVA has a pulse-what I mean is that you can put your finger on that pulse-

by reading court decisions from them and even from the BVA, it becomes clear as to the legal patterns of their thinking-and their wording of their decisions-

not all denials are wrong by any means.

I learn more from denials than from awarded claims.

Someone at the H VAC yesterday sid the CAVC remand rate is about 50%.

As extraordinary as that is-when you consider BVA could have also remanded the same claim to the RO years before the CAVC got it,

it encouraged me this way-

A CAVC remand is due to legal errors on the BVA's part that were prejudicial to the veteran.

That then, on remand, is the only thing that can potentially open the door for more evidence.

Sometimes the remand from CAVC ends in a good decision at the BVA.

Sometimes the claim gets remanded from the BVA back to the VARO for a re-do.

The only thing wrong with all that (it gives the vet another chance to win)

is that vets are dying.

VA knows that.

Our enemy is time.

[broncovet]

Ok, I have a question for the legal eagles. When we are researching a claim, how do we know if the case we are reading is "precedent" or not? Are all CAVC precedent? How about BVA? Federal court?

In other words, if I cite a case that is non-precedential, then my evidence is basically useless, the way I understand it. It would be like me citing my brother, who thinks the Va should pay up, or he will write to his congressman...a waste of ink and paper.

[hurryupnwait]

These are the cases that my attorney Kenn Carpenter used in my NOD.

Myers v. Principi, 16 Vet.App. 228, 235 (2002) (holding that a VA procedural error can cause a claim stream to remain open regardless of the length of time that has passed).

Chotta v. Peake, 22 Vet.App. 80, 85 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted).

Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the board is prohibited from substituting its own unsubstantiated opinion for competent medical evidence).

Happy Trails

Paul

[tssnave]

Berta -

Re your comment: "Sometimes the remand from CAVC ends in a good decision at the BVA.

Sometimes the claim gets remanded from the BVA back to the VARO for a re-do."

Why doesn't the BVA always just make a Decision if it has that authority rather than send the claim back to the RO for a re-do which just takes more time? Can the BVA only make a Decision if a claim comes back from the CAVC and not if a claim is coming from the RO?

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HurryUp&Wait -

I quoted Colvin in my NOD as well when the rater decided to ignore what the C&P examiner stated about my being 100% in the C&P exam.

Thanks for the Chotta citation. I didn't have that one. I was concerned when I was working my claim about the holes in my mental health care over the years off and on from when I wasn't working due to my sc bipolar disorder that they would say I hadn't had enough continuity of care. I got care when I had a job and insurance and did without when I didn't. It's almost like being penalized for having the sc bipolar in the first place had they made continuity of treatment an issue but the C&P examiner wrote a strong nexus linking my inservice treatment with my current treatment.

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Pete -

As always, thanks for the encouragement. It means a lot.

Thanks,

TS