Amc Failed To Comply With Cavc Remand Order

[PJJones]

The CAVC remanded my claim back to the BVA in 2010 to find more consent, because the consent the VA offered, a letter from 1998, the CAVC ruled insufficient, because it didn't meet the consent requirements as stated in 17.32 of 38 usc. Anyway, the other day, November 3rd, 2011, I got a denial from the AMC, (who the BVA gave the remanded case to), and the AMC denied me again, based on that very same letter from 1998 that the CAVC found insufficient as consent. What do I do know? I sent a letter to the AMC letting them know I will be appealing this denial, which I think procedurley was just to cover my A_s in the event they try to say I didn't follow procedure, and then I sent a letter to the CAVC, the BVA, and the AMC letting them all know of the mistake. With the letters I highlighted the old CAVC remand that said that letter was insufficient. That's all I know to do. Any ideas?

[Wings]

Personally, I think you did a good job of CYA, and did everything you could. Have you researched some case law? Cited precedent, or are you setting one? Hang in there. ~Wings

You could file a Writ of Mandamus.

A writ of mandamus is an order issued by a court to compel an agency to act on a decision that has been unreasonably withheld. It is used in the VA context when the VA simply does nothing on a claim after you have asked that it be decided. It cannot be used to compel a particular result -- say, service connection -- only that the VA go up or down on it and example http://www.hadit.com/vaclaimslibrary/mandamus/mandamusexample001.htm

[PJJones]

In essence I got a Writ of Mandamus because it is the CAVC's default when seeking anything outside of your initial appeal to their court. I filed a motion to end undue delay and the court construde it as a Writ of Mandamus and the VA Secretary's counsil responded with a copy of everything I had already sent regarding the BVA via the AMC not complying with the CAVC's vacate and remand order, so, that said, if the judge reads it thoroughly, or his clerk, he will find that the VA Secretary's counsil thinks so little of him, that she would fluant (check that spelling) the VA's SSOC in front of him as evidence and it contains info that his court already found insufficient and vacated. It was the reason for the remand. Let's see how quick the CAVC is with this one. Not to keep harping on the samething over and over again, but I submitted the very SAME paperwork to the court that the VA's counsil did only I pointed out the ineviable flaw. I figure, I'll give them until the beginning of December if necessary, and then I will call the clerk at the CAVC and see what I can do to get an appearance. I know what he's going to tell me, but I can atleast give him the long and short of why I feel an appearance is necessary, and he will have to investigate what I say to him atleast cursory, and from there, no appearance will be required. I'll have my extraordinary relief because I will have been able to show that no other option existed. You must prove that no other option existed to get the relief requested, and this proof must be clear and indisputable. It's clear and undisputable if you look at my SSOC, the courts 2010 order, and the VA Secretary's own brief they submitted to the CAVC where they concede with most of what they used to deny me in my SSOC. Obviously they can't do their job and my reliance on them for relief is faulty to say the least and requires the CAVC to issue the Writ of Mandamus because otherwise, I'd have no relief.

You could file a Writ of Mandamus.

A writ of mandamus is an order issued by a court to compel an agency to act on a decision that has been unreasonably withheld. It is used in the VA context when the VA simply does nothing on a claim after you have asked that it be decided. It cannot be used to compel a particular result -- say, service connection -- only that the VA go up or down on it and example http://www.hadit.com...sexample001.htm

[PJJones]

As far as a Writ of Mandamus goes see, Kerr v. United States District Court, 426 U.S. 394, 402 (1976), Erspamer, 1 Vet. App. at 9, quoting Bankers Life Casualty Co. v. Holland, 346 U.S. 379, 384 (1963). There is no need to set precedant here. So many wronged Vets have already done that for us!

You could file a Writ of Mandamus.

A writ of mandamus is an order issued by a court to compel an agency to act on a decision that has been unreasonably withheld. It is used in the VA context when the VA simply does nothing on a claim after you have asked that it be decided. It cannot be used to compel a particular result -- say, service connection -- only that the VA go up or down on it and example http://www.hadit.com...sexample001.htm

[PJJones]

Thank you for the offer of help, but as I said, I'm really just using this as an outlet to complain. I'm certainly open to advice, but I'm so bull headed I know that I will not follow it and head down this road alone. I've sought advice in the past and it led me to nothing but denials. At this point, I've used this website to console myself and I decided to add my string because I hadn't seen anything like what I'm going through here or anywhere else for that matter, well, save one instance. So, I'm actually trying to help those out there who won't post like I chose not to do for so many years. Those who choose to simply read others posts and gain information and strength to go on cause I swear, as long as I breathe air, the VA is not at all trying to help it's veterans, but send them to the suicide hotline, cause they've had me mad enough to consider stuff the CIA has people reading these posts for. The wrong word, the wrong tone, the wrong tense and their on you, to see if your a threat to national security. Now, a threat to yourself, or your close family and friends they tell you to call a number, but threaten the VA AMC or BVA down in DC and they call YOU! Hahahahaha. Okay, I turned my real thoughts into a joke, that said, there are people out their who just won't post on sites like this and I was one of them for years. Now I'm posting because, I must admit, I've been using your site to gain insight and understanding into what it is I'm fighting here and without a doubt, it has been one of the biggest helps to me, but I don't choose to post my SSOC even though I realize it could only help me. Would it surprise you to know I stayed on KP and push-ups, hahhahaha, I walked around build like a man in the upper body most of my twenties, looking like I shoulda been in the Marines instead of the Army. I think my drill sergeant adopted me as his child; and he didn't let no mess slide!

PJJones

What I was getting at is that if you post your decision (with your name and SSN removed), along with the "reasons and bases" for decision, we may be able to offer specific help. However, none of us can give specific help without specific details. I am not familiar with 1151 claims, but I do think Berta has some good information on 1151 claims:

I also think you are correct in that a Writ of Mandamus is the proper way to try to compel the VA to comply with a CAVC remand order, but, I also know the VA sometimes interprets the laws as they so choose. For example, I think the Va interprets the "favor the Veteran" doctrine as

"Flunk the Veteran"

Also, the Va interprets the "doctrine of equipose" to mean when all else is equal delay the Veteran until he dies.

[PJJones]

I must have hid this info in another reply but I'am this coming February 2012 short of being a lawyer myself. I graduated from law school this past spring 2011, and instead of taking the July 2011 bar with my classmates, I chose to take the February 2012 bar, and believe me, when I say, the practice of law is a fake it til you make it type job, unless you got a job with a big firm, who is still going to give you stuff you have no idea about, and their gonna expect you to catch up to speed quick! Those who go out on their own after school face the samething, they have to fake it til they make it too. When it comes to putting food on the table, I'm gonna get all the necessary paperwork to fight in front of the CAVC and then I'm gonna go out and seek Vets to hire me. Ask any lawyer you know, how they started out of law school, and then ask them, how they began doing new area of law that they had no familiarity with. They'll tell you that they talked to lawyers who did that type of work, and then they headed to the library to read recent cases on it, and then they researched the relevant laws on it, and then, they went back to those same seasoned attorneys' and asked them more questions to close the gaps in their own research and they started taking cases in that new area and so it went, they now had experience in that new area.

Have you read that " a man who acts as his own lawyer has a fool for a client". When lawyers get into serious trouble they go out and hire the best lawyer they can afford to defend them. I always did my own claims until the new law came into being where you could hire a lawyer at the VARO appeals level. I have a CUE claim going back many years. I was pretty sure my claim would end up at the CAVC so not being a lawyer and knowing my case would be in the hands of VA lawyers I got me a lawyer. I think that when you prosecute your own claim it is easy to get to close to the case. It is very hard to be objective about a claim that has dragged on for years. I wanted a different set of eyes and I wanted someone else to write the briefs. When you deal with lawyers being a non-lawyer you get zero respect.

[Wings]

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PJ, I think I'll wait till you win your claim (all by yourself) before I hire you to win mine lol! Good Luck. ~Wings