The Application Of Precedential Decisions Of The Cavc And The Federal Circuit

[rakkwarrior]

In preparing a case to be submitted to the Board of Veterans' Appeals (BVA or Board), one must consider the application and discussion of standing Court precedents. Specifically, pursuant to Title 38 U.S.C. §7104© "The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department."

The Board's mission, as set forth in 38 U.S.C. § 7101(a), is "to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner." The Board's goal is to issue quality decisions in compliance with the requirements of the law, including the precedential decisions of the United States Court of Appeals for Veterans Claims (CAVC) and other federal courts.

Some links have been provided by Hadit regarding VA Fast Letters (FL's) and Training Letters (TL's), however, I did not notice an index of Decision Assessment Documents (DAD's) and other internal circulars which describe how the VA Regional Office's adjudicators may apply Court Precedent. The Board, however, is comprised of Veterans Law Judges and Staff Attorneys who are not necessarily bound to the confines of such legal guidance. However, they may use the quasi-legal material to inform their decision.

The the United States Court of Appeals for Veterans Claims (CAVC) is an Article I Court codified under Chapter 72, Title 38 U.S.C. to decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary; hold unlawful and set aside decisions, findings which are found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C ) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or( D) without observance of procedure required by law, pursuant to Title 38 U.S.C. § 7261.

This Federal Circuit Court has limited jurisdiction in reviewing the decisions of the CAVC. Their authority is limited to deciding all relevant questions of law, including matters of statutory interpretation.   See 38 U.S.C. § 7292(d)(1).   We can set aside a regulation or interpretation of a regulation relied upon by the CAVC that we find to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;  (B) contrary to constitutional right, privilege, or immunity;  © in excess of statutory jurisdiction, authority, or limitation, or in violation of a statutory right;  or (D) without observance of procedure required by law."  Id. In general, however, this court may not review factual determinations or the application of a specific set of facts to a law or regulation.   See 38 U.S.C. § 7292(d)(2);  Anglin v. West, 203 F.3d 1343, 1345 (Fed.Cir.2000).

The Federal Circuit Court also has authority to review decisions of the Veterans Court regarding the "validity of any statute or regulation or any interpretation thereof" and to "interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292©; see Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed. Cir. 2007). [They] review the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed. Cir. 2002); Howard v. Gober, 220 F.3d 1341, 2007-7306 4 1343 (Fed. Cir. 2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran's claim, we treat the application of law to undisputed fact as a question of law." Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008).

In regard to the aforementioned, BVA decisions may not be cited as precedent setting in any instance, and incorporation of specific BVA decisions in individual claims often detracts from the probative value of the claim, namely because the BVA ruled on specific findings of fact to that veteran's case, and while the legal precepts which provided the reasons and basis for the Board's decision offer significant insight into the application of the law, it does not alleviate those citations to have specific bearing on your case.

In a recent February 2009 hearing before the U.S. Senate Committee on Veterans' Affairs Richard Cohen of the NATIONAL ORGANIZATION OF VETERANS' ADVOCATES properly assessed, "In the vast majority of cases, a BVA staff attorney is the first person to review a veteran's claim with even a basic understanding of relevant CAVC case law and its potential application to that claim. RO adjudicators are almost completely untrained in and unaware of CAVC jurisprudence, and the low quality of their decisions reflects this ignorance." I cannot agree more, in most cases, however as noted before, VA Regional Office adjudicators are guided by internal guidance or DAD's.

A precedent decision is a court decision that is cited as an example or analogy to resolve similar questions of law in later cases. Precedent decisions are made by en banc (full bench), or a panel of three or more judges. It is the similarity of the Court's precedent to the individuals case which will compel the Board's persuation on the issue at hand. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute.

As a National Service Officer (NSO) of the Disabled American Veterans (DAV), I am accredited to practice VA law as an attorney-in-fact up to the Board of Veterans' Appeals, and currently we are the only organization to have a non-attorney practitioner allowed to practice before the Court. NSO's are internally trained in VA law, we do not require yearly cerification by VA's ridiculous and often inadequate testing, or seek outside assistance from other sources. This is achieved through a 16 month OJT program, and a three year Structured and Continuing Training program which covers not only regulation, and U.S. Code, but also precedent decisions of the CAVC, Federal Circuit, and as it pertains to VA law, Supreme Court Decisions such as that found in Shinseki v. Sanders (2009). The latter training is ongoing and continuous throughout an NSO's career. We use this independent knowledge and precepts of law to prepare briefs in lieu of VA form 646's and supplemental appellate briefs pending before the Board.

Here are some references in assisting the readers in locating Court Precedent:

U.S. CAVC:

http://www.uscourts....ns/Opinions.cfm

The U.S. Court of the Federal Circuit;

http://www.cafc.usco...vc/all/p/p.html

The U.S. Supreme Court: (search "Court of Veterans Appeals")

http://www.supremeco...ket/docket.aspx

It is the Court's review and discussion of relevant case law which will guide successful argument before higher appellate bodies, although I have been known to write briefs to the VARO, I usually constrict these to the confines of the internal Manual provisions, FL's, TL's, and DAD's. I had learned that aggressive posturing only confused the VARO and compelled furtherance of certain cases to BVA.

One thing a claimant must understand is that not all issues will be won at the Regional Office level, some claims are too complxes, or are outside their legal authority to grant. In these cases it is better to prepare for VLJ review than to continue the case going in circles at the VARO, with redundant Statements and Supplemental Statements of the Case (SOC/SSOC's). It is wise to understand when the case can reasonably granted at the RO level, and when it cannot.

*Other VSO's have training programs that I am not completely privy to, but most include training from the NVLSP, NOVA or other attorney groups. I do not disparage other VSO's but do routinely analyze whether or not their methods and prosecution has been effective. I also do not intimate that all DAV NSO's which members of this forum may have encountered are always and infallibly right, or that they correctly demonstrated the organizational values, and mission to the veterans' community. For a bit of candidness, I will tell you it is difficult to recruit for an NSO position, and because we are all disabled, some do not make it, or cannot achieve the level of concentration to maintain the pace at which we are required to initiate, develop, and prosecute claims. I can only say the majority of our staff are dedicated to the mission, and most definitely supervisors want to know if there issues with a staff member.*

[Pete53]

Thank you I really am impressed with the presentation. I am also impressed with your training and the respect given to you to allow you to represent at the Board Level.

For your information although you have seen some of the bad examples Hadit used to have a list of good VSO's. Over the years we have had Veteran advocates who have contributed to Hadit. Some have left for their own reasons and some have passed on. One of our first was Dean Smith who was a big help to many who were struggling.

Unfortunately many Veterans get frustrated with the long delays and the mechanics of the VA and blame their Representation. I think most of the Veterans who initially sign up to be represented think that the Rep is going to take care of everything. I don't think that most VSO's have the time to do that.

My VSO also contributes to Hadit and has helped me and my brother and I appreciate him.

[Berta]

This is more excellent info here from Rakk.

What Rich Cohen said is certainly true-

"In the vast majority of cases, a BVA staff attorney is the first person to review a veteran's claim with even a basic understanding of relevant CAVC case law and its potential application to that claim. RO adjudicators are almost completely untrained in and unaware of CAVC jurisprudence, and the low quality of their decisions reflects this ignorance."

Bradley V Peake is a good example as it appears some VAROs have applied Bradley to some re-opens of SMC claims under Bradley yet some have not.

I can only add one thing- Precedent VA General Counsel Opinions 0in some cases certainly can help a claim too.

When I joined hadit- maybe 9 years ago?-I had received awards at the VARO level and the time frame to award seemed long inthose days but was nothing compared to the current status quo-yet I fully believed that the VAROs could make proper decisions that would alleviate the need for transfer to the BVA.

Things sure have changed.I was thrilled when I found my CUE was going to the BVA in July -6 years after filing it.

Then suddenly it became a Nehmer issue and the BVA transfer didnt take place.I had learned since 1998 that the BVA wasthe only VA entity in 6 years that read my evidence for my 2003 claim for direct SC death.

I learned after the ROs awards in 1997 and 1998 that what Rakk has stated here from Rich Cohen's testimony-is absolutely true-I am sure this was one of his main points in older SVR shows I did interviewing him-

when the claim gets to BVA lawyers the first thing they consider is whether there has been a VCAA violation detrimental to the claim and if so-they must remand the claim. If no VCAA violation has occurred they view the claim in a different light than the RO did, because they know pertinent established VA case law and in many cases the RO didnt due to "their ignorance."

Being lawyers they focus on the pertinent evidence, and certainly are not wiling to ignore it- as can happen at the regional level.BVA even made the point in my award of last year that I had sent VCA multiple copies of IMos that they had ignored over the years.

That doesn't happen in a vacuum.But it won't happen at the BVA.

[Notorious Kelly]

Wow- great info, Rakk.

Interesting to see that BVA isn't precedent and can detract from the claim - something amateur 'lawyers' like me would never figure.

Thanks!

[carlie]

Just to reiterate - BVA claims have never had a history of setting precedence.