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Pro Se Representation At Uscavc


Sergeant G

Question

Hi,

My recent BVA decision granted benefits for one issue and denied benefits on another issue. I will be appealing the denial to the USCAVC in the near future. I am currently represented by DAV. They have been helpful in some ways, but I am the one who has conducted all of the research and wrote/submitted documents and evidence in support of my claims at each appellate level. I would like to represent myself pro se for the appeal. Does DAV even represent claimants at the USCAVC level? If so, do I need to revoke their POA to be considered pro se? Thanks for the information.

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  • HadIt.com Elder

What happens at CAVC is that lawyers make legal arguments about the validity of your claim. No new evidence and you don't have to be there for anything. Unless you are a VA lawyer or maybe a self-interested VSO you will be crushed. I have been there for two years with a remand to BVA and back to the CAVC. My lawyer's first brief was about 40 pages long just for the argument with pages of citations. There have been two extra briefs since then.

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I filed my appeal with the CAVC last week. This week my mailbox has been flooded with advertising material from attorneys offering to represent me (provided they think my appeal is a winner).

After giving it some thought, I think I'm going to proceed with an attorney. I called Bergmann & Moore today and they are going to evaluate my case. I believe my appeal will end up being remanded because there are at least five potential flaws that I found in the BVA decision. If I can find them, I imagine a lawyer specializing in VA law will find even more.

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  • HadIt.com Elder
I filed my appeal with the CAVC last week. This week my mailbox has been flooded with advertising material from attorneys offering to represent me (provided they think my appeal is a winner).

After giving it some thought, I think I'm going to proceed with an attorney. I called Bergmann & Moore today and they are going to evaluate my case. I believe my appeal will end up being remanded because there are at least five potential flaws that I found in the BVA decision. If I can find them, I imagine a lawyer specializing in VA law will find even more.

Sergeant G - I used B&M for my housebound claim, at the CAVC and was very pleased w/them! The Sec/VA and B&M agreed it should be remanded, prior to having an actual hearing and it was sent back. Cost me nothing. They'll get paid by the EAJA funding. I should have some results by the end of the current decade, should I live that long. ;-)

pr

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I hate to repeat this for anyone out there and pardon my graphic politically incorrect statement,

but,in my opinion anyone going into the CAVC without a lawyer is going into battle with their d--k in their hand instead of a gun.

The attorney fees on a win is about 20% of the retro.

Without a lawyer a vet can come out of the CAVC with 100%

of Nothing.

Check out the names of any attorneys you here rom right at the CAVC site or ask them for some of their winners and you can read those cases and make a good decisions on a lawyer.

Did you hear from Doug Rosinski? If so and you contact him ,mention hadit and my name to him.....but try B & M first.

He is a friend of mine....can you tell me exactly why they denied?

Or did you tell us here already????

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  • HadIt.com Elder

I get the impression from visits to the CAVC website that my lawyer, Karl Kazmierczak, is specializing in CUE claims. Many of his other clients besides me are doing CUE's and he is representing them. I think he learned a lot about CUE's doing mine.

John

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Berta,

The BVA denied my claim for an earlier effective date of my 70% rating, which was previously 10% (for bipolar disorder). It's my contention that I met the criteria for an EED under 38 CFR 3.400(o)(2) because it is "factually ascertainable" that an increase in my disability occurred within the 12 months prior to my current effective date. The reason why I didn't file my claim earlier is because I was originally diagnosed with depression, instead of bipolar disorder, and my manic symptoms were missed by my healthcare providers, and I didn't know that I was experiencing symptoms, so I didn't report them. However, I made a few major decisions while manic and exercised poor judgment. The results of these decisions are verifiable facts. (I'm being vague so I can be as brief as possible, but I'm happy to elaborate if asked to.) More than one of my VA healthcare providers stated in their treatment notes that I was manic (and depressed) within the 12 months prior to my current ED. My VA therapist even specifically opined in my treatment notes that I met the criteria for 70% and IU since June 2006. She said this in June 2008 after my diagnosis was corrected. She also said, "My impression [is] that she has been seriously disabled for several years and has been trying to work despite severe psychiatric impairment which has resulted in a series of failed efforts.” (My ED is currently December 11, 2007.) To make it easy for the RO and BVA, I even typed up a document showing these notes and other relevant excerpts from my notes along with corresponding dates and providers.

The BVA basically said that there wasn't enough evidence to support a 70% rating prior to December 2007. However, the Board did not address my lay statements and most of the positive medical evidence that I cited, and in failing to do so, the BVA didn't provide adequate reasons and bases for its decision as required by law. (I can't remember the relevant case right now.) I believe that is enough to justify a remand, but there is even more. In addition, the Board relied in part on an inadequate C&P examination, which I previously disputed. Again, the Board failed to acknowledge my dispute and why they rejected it (assuming they looked at it in the first place). Furthermore, the BVA only looked at the symptoms listed in the General Rating Scale (GRS) from 38 CFR 4.130 instead of considering all symptoms affecting my ability to function socially and in an occupational environment. This is a violation of Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002), which states that the GRS is not an "exhaustive list," but rather serves as a list of examples. Finally, while the Board didn't think I met the criteria for 70%, they failed consider a lesser rating of 30% or 50%. Again, I was only rated at 10% before I filed my claim in December 2007. My disability didn't jump from 10 to 70% disabling with IU on this date--it was a gradual increase.

On a separate note, Bergmann & Moore called me back a little while ago after reviewing my BVA decision and they think there are some flaws as well.

Sergeant G

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Yeah, something is wrong there..... when did you get this
BVA decision?





There is a time limit for filing a Notice of Appeal with the CAVC








2. The Notice of Appeal (NOA) must be received not later than
120 days after the date on which the Board mailed the notice of the
decision
to the last known address of the appellant.

Please
Note:
The date stamped on the front of the BVA's
decision is the date it was mailed.


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




and US CAVC Home page




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




They just revamped their internet
addy....the new CAVC site is fabulous !

Did you give us the BVA Docket number and CItation number here yet? However It might not be posted yet at BVA.

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The BVA decision is dated 11/16/12 and it is not available on the BVA website. (Docket No. 11-03 845)

I filed the appeal with the USCAVC on February 7. A redacted copy of the BVA decision is attached.

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It's official. Bergmann & Moore are representing me. They filed the notice of appearance on February 20 and the same day, the Office of General Counsel requested my claim file from the RO and it shipped out also on the same day. It's amazing how fast things get done at the CAVC appeal level as opposed to the snail-like pace of the RO.

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  • HadIt.com Elder

You can watch progress of your claim at CAVC website. You look yourself up on the docket and you will see where your claim is in the process. This is going to take at least one year if you are lucky.

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an old adage says that one who represents themself in a court of law has a fool for a client...dunno but i personally would rather have a mouth piece standing next to me pleading my case before the judge.

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  • HadIt.com Elder
It's official. Bergmann & Moore are representing me. They filed the notice of appearance on February 20 and the same day, the Office of General Counsel requested my claim file from the RO and it shipped out also on the same day. It's amazing how fast things get done at the CAVC appeal level as opposed to the snail-like pace of the RO.

Nice thing about using them is I got a complete copy of my c-file on a CD, 4700+ pages of it, when the claim was finished. You'll probably get yours also and because it's thru the court you'll know it's complete.

pr

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I am going to give you a likely scenario. Your atty has found an error that will allow them to push for a remand at CAVC. At CAVC they are paid by CAVC if they win a remand so it is easy money. Then you will be told you on your own again unless you can produce this or that. I went through it. I won on my own in the end after more years went by. I could write more but I won't.

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  • HadIt.com Elder
I am going to give you a likely scenario. Your atty has found an error that will allow them to push for a remand at CAVC. At CAVC they are paid by CAVC if they win a remand so it is easy money. Then you will be told you on your own again unless you can produce this or that. I went through it. I won on my own in the end after more years went by. I could write more but I won't.

deanbrt - and your point is??? If I had not used an atty I would have zilch, nothing, zero. By winning a remand I should get what I shoulda got, way back when!!! I wasn't really expecting anything more. Would I have liked more . . . sure but it's been to the court twice now and I'm still going. Sounds like you expected more and may be a little bitter? You said in the end you won!! Sometimes it's best to let it go? jmo

pr

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Phil, I am TDIU P&T with a 6 year retro. why don't you go back and read a couple of postings from Hoppy about the job my legal representative did for me before I fired him and Hoppy came to my rescue.

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