Court Of Vet Appeals Process?

[john999]

After your lawyer has submitted your brief to the court what are the next steps before you get a decision? I imagine the VA gets to submitt their brief opposing whatever you are asking for in your brief but what comes next?

[Flatbroke]

After your attorney and the VA submitt thier briefs, it goes to the Judge. Then he or she reads the brief, all evidence submitted and makes a decision.

If the decision goes against you, and you and you attorney believe that you have a good case you can appeal to the FEDERAL APPEALS COURT just like my attorney is in the process of doing.

Don't miss any deadlines John999 if your attorney needs more time apply for an extension right away.

Flatbroke

[Philip Rogers]

John -

You can go to the court's site and view the dockets progress. Mine started about 4 months ago and altho I have received nothing from my atty, I see about 10-12 entries. At present my atty's saying there's records missing and the VA has requested an extension to respond. It's fairly well detailed, as you can read each motion/filing.

pr

[Berta]

http://www.uscourts.cavc.gov/

John- at the home page link, go to Case Information on the left and then click on Docket Report info

[john999]

Thanks everyone! I have been keeping track of my appeal's progress by going to the court's site. Both sides had a phone conference few months ago and now my lawyer sent in our brief with some old and some new arguments. As I view it now my original decision was just awful, but who knows how this thing will turn out in the end. I was wondering (like all of us do) how long I must go before I get a decision. It has been six years since I started this journey back at the VARO. Has anyone heard of a vet making the argument that a decision is defective because the VA addressed only the social adaptability of a vet and not his vocational ability? My lawyer is arguing that my due process rights were violated as in Cushman vs Shinseki and that the word "undebatable" as it applies to CUE cases has been misused among other things. My doctor's report that the VA ignored addressed both vocational and social adjustment and hit all the points required to make a decison. The VA just said that I had a mild disability because I got on well with other mental patients on a locked ward for eight days. I saw my doctor for 7 months twice a week and a group therapy once a week. I talked to a VA doctor twice in eight days. I never got appeal rights with my decision so I had no idea about deadlines. This all happend 40 years ago but it still gives me heartburn. I think our old decisions from the 60's and 70's are often defective if mine is any example. I found this out years later after hearing of the concept of CUE here on Hadit. All those DAV, VFW and AL VSO's just looked at what they had in front of them and made weak arguments that I should get an increase "just because".

[Philip Rogers]

John - would you mind post a link or sending me a link to your case?? I know my last case(2003), at the court, took about 2 yrs and this one is a further appeal of that claim. So I am now at 9 yrs at the court.

Thanks,

pr

[broncovet]

John

You asked,

"Has anyone heard of a vet making the argument that a decision is defective because the VA addressed only the social adaptability of a vet and not his vocational ability? "

The answer is a definate "yes". I NAIL the VA on the criteria. The regs "lay out" the criteria. If the VA adjuticates the claim based on "non criteria", then this is a definate bases for appeal.

If you read the criteria for mental disorders, it clearly says, CFR 38 4.126

<a name="38:1.0.1.1.5.2.111.69" style="color: rgb(0, 0, 0); font-family: 'Times New Roman'; font-size: medium; ">4.126 Evaluation of disability from mental disorders.

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(a) When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.

(b) When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.

Edited August 18, 2012 by broncovet