Equal Access To Justice Act

[mrsvet28]

http://www.equalaccess2justice.us

According to this link the lawyers make money from our claims whether we win or not.

I do not feel mine are doing anything to speed up the final process, even though I signed a contract-I am ready to let them go because I've done everything they went to DRO and BVA hearing - and I dont feel that warrants all the $ for them-

[broncovet]

One of the problems is the RO gets to interpret the regulations in the manner they see fit.

Even an "award" by the BVA can be interpreted in a negative way enabling the RO to completely deny benefits..they did just that to me.

A grant or award by the BVA is supposed to mean the RO has no discretion in awarding benefits..they must simply award them per the BVA order. They dont do that.

A remand is even worse. It sends the case back to the RO, sometimes with instructions on how to proceed. The RO then, at its own discretion, applies the BVA instructions

(or ignores them), and re adjucicates the claim.

Some Veterans claims are remanded multiple times: Claim denied by RO, claim is appealed to BVA, claim is remanded back to RO, RO denies/lowballs, Veteran appeals, BVA remands again, etc. Its what Larry Scott calls the "hampster wheel" that goes nowhere, sometimes for decades.

In a report I read by the BVA they are trying to reduce the number of remands, recognizing that they frustrate the Veteran.

Bottom LIne: A remand is not a "win" UNLESS the RO decides its a win and awards benefits. Even a "complete Grant" by the BVA is not a win unless the RO decides to award benefits. One way the RO "weasels" out of paying is to "Award" a zero percent rating and the Vet gets nothing. This method is not supported by case law, but the RO's do it anyway. In case nobody has told you yet, the RO often follows regualtions only when it supports their position, that is, they follow the regs when they want to.

Its one of the many RO loopholes. You see, the RO wants a chance to decide a claim before its decided by the BVA. So, if the RO just shredded, overlooked, or otherwise didnt consider evidence, the BVA often remands the case, telling the RO to consider that evidence. Then the RO can come back and say , "We considered that evidence and the answer is still no, but they are supposed to give their "Reasons and basis" for denying it the second time. It is pretty easy for the RO to simply cling to the reason they denied you the first time.

[mos1833]

berta

my lawyer just collected on my claim,because i was the ( prevailing party )i got another remand,he got the cash,is this one of the 5 conditions you were talking about. thanks

[mrsvet28]

"My question is: if the RO missed something to begin with(like crucial evidence to the claim) WHY DOES THE BVA REMAND IT BACK THERE TO BE DECIDED- ie: MrVet had a conflicting 2ndCP to IMO exam and 3rd CP agreed with the 3 IMos which were done over a 6 year period?"

The BVA- as soon as they open the file- must determine

1. did the vet get full rights under the VCAA?

(They check the wording of the VCAA letter and then the VCAA response form)

2.If the VCAA was deficient (THOUSANDS deliberately are)

does the deficiency prejudice the veteran's claim?

3. If so a remand is in order for correction of that legal error-

The veteran then has an open widow for even more evidence---to be presented asd the VA develops a legal compliant VCAA letter and/or proceeds to follow the instructions in the remand from the BVA.

The claimant at some point has right to waive the RO review-so that the claim can be returned to the BVA for a decision.

If not waived -the vet could receive an award from the VARO at that point-

Most of the backlog however comes from remands that are still done wrong by the VARO.

Mine is good example.

The very first statement on my I-9 (after the statement NVLSP recommends which I posted here many times)

was that my VCAA letter was deficient and I told them why.

Although I didnt waive RO review -the BVA ,after remand and return of the file this time - found that my evidence outweighed even the prejudicial VCAA letter I got, and awarded my claim.

But VARO upon receipt of the award has sent me two incorrect award letters so far-so my claim is still not resolved.

I asked them to CUE the first one which produced another deficient award letter.

Last week I sent my second request due to their clear and erroneous award letter (this second one was worse that the first one) for a proper award letter to them, but also to VACO and the OGC , Chairman BVA and Chairman H VAC.

I figured the more people I send it to-the better my chances of finding someone in the system who can read.

------------

Remands-

A Remand can give the claimant one more window of opportunity to enhance the evidence they have,send more, rebutt any new C & P exam, and to re-submit anything they have not considered.

I followed the remand instructions myself- another thing a claimant can sometimes do-

the remand called for a cardio doc opinion.

I found a cardio doc and prepared copies of the clinical record for IMO.

I got a PA's opinion instead from the VA.

I rebutted the PA C & P diligently hoping my IMO would come in time.Send these rebuttals to remand C & Ps to both BVA and the VARO.

In a few weeks I called to see if the cardio doc was done only to find he had just got to my file.

Then I found a BVA envelope in my mail box- and cancelled the IMO (they refunded half of the fee)

The BVA had read my rebuttal as well as my other IMOs and awarded the claim.

We need to aggressively pursue our claims and never depend on any RO doing the right thing.

And we too can help satisfy what a remand calls for in some cases without depending on the ROs to do it.

Great post, hope you had thatpeaceful cup of coffee!---So I am guessing that is why the lawyers mailed and faxed everything the remand called for--so they wouldnt miss nothing as they said to me--now I'm thinking I'll keep them!!

[mrsvet28]

The court can award, deny or remand. A denial is a loss. An award is a win. A remand is a win because it allows an already denied claim to be sent back and to be re-developed and readjudicated, thus making it a win.

pr

We have hope then

[free_spirit_etc]

I hired an atty for my appeal to the CAVC and he won me a remand. He applied for payment under the EAJA. He did have to submit his hours and costs and then they approved his payment. Without the EAJA I couldn't have appealed, to the CAVC. I believe they get paid whether they win or lose.

pr

I think they only get paid if they are the prevailing party. And they also have to show that the government's position was not substantially justified.

http://www.equalaccess2justice.us/cgi-bin/...AJA+Information

LIMITATIONS OF THE EQUAL ACCESS TO JUSTICE ACT

ARE SO GREAT AS TO DENY EQUAL ACCESS TO JUSTICE

Dear U.S. Citizen:

Congress enacted the EQUAL ACCESS to JUSTICE ACT of 1948, as amended, (EAJA),to encourage lawyers to undertake litigation to vindicate constitutional and statutory rights of those individuals who could not otherwise afford to vindicate those rights. (June 25, 1948 ch 646 ' 1, 62 Stat. 971) The purpose of EAJA is to insure that people would not be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in pursuing their rights.

EAJA accomplishes this purpose by providing for the recovery of costs and attorneys fees etc. to prevailing parties in actions or proceedings against government or their officials, under specified circumstances. Essentially, the government waives its sovereign immunity in those specified circumstances.

EAJA limits recovery of costs and attorneys fees etc. to specified administrative proceedings. Only those administrative proceedings where: (1) they were to be determined on the record after opportunity for an agency hearing, by law; (2) they were not one of the statutory exceptions; (3) the government was represented by an attorney; (4) the position of the agency was not substantially justified; (5) there were not special circumstances; (6) they were subject to the Administrative Procedures Act; (7) and, the party prevails; are subject to EAJA. (5 USCS " 504 and 554; Ardestani v. INS, 502 US 129, 112 S.Ct. 515 (1991))

EAJA limits recovery of costs and attorney fees etc. to specified legal actions. Only those legal actions where: (1) they were not sounding in tort; (2) they were not one of the statutory exceptions; (3) the position of the government was not substantially justified; (4) there were not special circumstances; and, (5) the party prevails; are subject to EAJA. (28 USCS ' 2412; Pierce v. Underwood et al., 487 US 552, 108 S.Ct. 2541 (1988))

EAJA limits attorney fees to $125 per hour, without some justification for a higher fee. (Baldi Bros. Constructors v. US, 52 Fed. Cl. 78 (2002)) Justification for a higher fee is limited to cases where specialized attorneys are required.

Equal Access to Justice, Inc. submits that these limitations, effectively, countermand the purpose of EAJA and thereby deny equal access to justice to the people of the United States.