How Do I Ask For A Full Court Review

[mos1833]

the court of appeals,made a panel decesion on my claim, denied

my lawyer is on vacation,or a long holiday. not much good any way.

they posted their judgment on 1-4-2013

i want to ask for a full court review-- what have i got to do ?

do i need new evidence ?

iam so confused and worried about the time limits for file ing.

thanks

[john999]

I think if you are going to go into federal court you need a lawyer to take you there. You may be able to file the paperwork to get on the docket, but you will need a lawyer. The CAVC would be child's play compared to federal court, but if you have a good lawyer and a good case you may win. It will end up back at the VA. Read Cushman 2008 at the CAVC site and you will see. He won at federal court, but it back on remand at the BVA. This has gone on for decades. I have been to CAVC twice once remanded back to BVA.

John

[deanbrt]

You need a new attorney to look things over.

[mos1833]

john999. this claim has already been to the federal court in 2004 it was sent back because of the duty to assist law.

that ended any assistance , or benefit of doubt ., the court wont address any of my arguments, they site the law , but wont say how they used it in my case, i want to get to federal court. but how do i ( or my lawyers ) get them produce the evidence they say they have.

docket no. at the court is 11-2847

my lawyers motion for reconidersation was pretty good, but still fell short,

what i wanted the record to show is that all the c/p examiners stated that they were swayed most by my separateing examination showing a normal back,and no complaints.

well sir that does not exist , if so many people have reviewed it, then they should be able to show it but they wont, iam sorry but they used that report against all my lay evidence, i just think it sucks.

thanks

[jbasser]

The court is gaining the reputation of passing the buck as issuing opinions and consistency with remands to the BVA. The BVA being the upper arm of the RO, often ignores Court remands and slaps claims in the black hole called the AMC where it sits until the next ice age starts. They pass it back and forth over time as the veteran gets older and sicker.

It is not fair to the veteran. That is for sure.

J

[john999]

I think only a lawyer can answer those questions. I have some of my own questions as well.

[broncovet]

You have been given good advice.

There are 3 levels of court review, reminding you the CAVC is a trier of law, not a trier of facts. The "facts" of the case is a determination made by the RO/BVA and the court is precluded from a conflicting factual determination. In other words, if the RO/BVA says your face is green, the CAVC will say that the facts establish your face is green. They wont look at your face and say, "it looks pink to me".

1. The first is a "single judge" CAVC decision. This happens for most non controversial cases. The judge decides and that is it. These decisions can award, deny or remand, but can not be cited as "precedential"

2. Sometimes, there is a "panel decision", that is 3 judges. Usually this is at least somewhat controversial opinion, and the powers that be feel a "panel" decision is warranted. These are precedential.

3. Finally, there is a "full court" or "en banc" decision. These are fairly rare, and, again the powers that be use an "en banc" decision to settle a very controversial point of law. En banc are always precedential, because the decision is a consensus of all the judges. Sometimes one or more judge can disagree, and they often cite their own "dissenting" opinion.

Your lawyer can ask for a panel or en banc decision, you dont want to even think of doing this pro se. If you dont like the lawyer, get another one.

En banc CAVC decisions can only be appealed in federal court, and, again only on errors of law not errors of factual determination.

Edited January 10, 2013 by broncovet (see edit history)

[Berta]

11-2847

In part:

“This claim hinges on whether Mr. XXXXXXX can establish that the Board erred
when it found
that his lay statements about continuous symptoms of back pain since
military service were not
credible. See 38 C.F.R. § 3.303(b) (2012)

In this case, the only evidence of continuous back symptoms are the
statements of Mr.
Nunley and his family, asserting that he has experienced back pain since
his military service. R. at
1139-50, 1495-96, 1499. Mr. Nunley states that he did not seek treatment
for these symptoms until
1979 because he is afraid of doctors and had no health insurance. He
states that he self-medicated
for his back pain until he sustained additional back injuries at work in
1979, when the pain became
too great to bear and he finally saw a doctor. R. at 1143-44; see Savage v.
Gober, 10 Vet.App. 488,
496 (1997) ("ymptoms, not treatment, are the essence of any evidence of
continuity of
symptomatology."). The Board found that these statements were not credible.
R. at 21. “

Has your evidence grown beyond lay statements since that decision?

[mos1833]

well my lawyer is droping me , he says my claim cant be won.,,,, but i dont wont to drop it ..whats my first step.i dont want to appel to the next court. i want to ask for a full court review. he also says i can open a new claim, thanks to all.

[Philip Rogers]

Your problem appears to be evidence. The only evidence you have is you and your family's statements, which they probably feel are biased. In addition you had another injury, in 1979, after the service. You need more probative evidence, if you ever expect to win. Just because "you want" a full court review doesn't mean you should get one. I'm not trying to depress you but I just don't see it getting anywhere as is. jmo

pr

[mos1833]

thanks philip. i probably know what to do . iam just grasping at straws. and i dont even know how to try and re-open or file a new claim for the same thing.

[deanbrt]

I new claim may be your best avenue but you need supporting evidence, such as an IMO.

[mos1833]

thanks deanbrt , when can i file a cue , or is it to late.

[Berta]

I am familiar with your claim.

In my opinion, you do not have a CUE issue.

These guys are right.....an IMO and more evidence would help.

[Philip Rogers]

A CUE can be filed anytime, after the one yr appeal period has expired and the decision has become final. I don't feel this is a CUE issue but that's just my opinion.

pr

[deanbrt]

I am surprised your attorney did not ;push to get an IMO. Surely, he should have seen you needed more evidence.

[FormerMember]

An IMO will not avail this gentleman. As BroncoVet pointed out, the CAVC (and the 3rd Circus) are Courts of Law, not triers of fact. Mr. MOS1833 would need a remand for some defect of law in order to submit new evidence such as an IMO. Once the RBA is sealed at the BVA and the decision ink is dry, no more evidence is allowed to be entered into the record except under a mutually agreed upon scenario between the the parties as well as the court clerk. This is extremely rare. Asking VASEC to allow in (or to send out for) an IMO at this point is not going to be greeted favorably. Absent some earth-shattering legal epiphany, he will not be granted a Full Court review. His case must have had some significance if he even received a panel review. That it failed indicates much. If your own attorney says it's not viable, I don't see how asking for a full Court review will breathe new life into it. The Fed. Cir. won't even look at it if a matter of law is not raised.

[deanbrt]

Understand. I meant at the BVA level. I went all the way to CAVC, remand, and award at BVA. My thought at CAVC then was if I lose there, it's over.

But I still don't understand why an attorney would take the case (on contingent, I assume) at any level without more substantive evidence.

[Berta]

I think I am wrong here...wasn't this a CAVC denial???

Only recourse then is to a Fed Circuit court....but if it was a joint remand, then an IMO could help.

The CAVC only looks for major BVA legal errors that were prejudicial to the claimant. They dont accept IMOs or any new evidence when they decide the issue.

Sorry guys...I got a lot on my plate these days....and answer too fast sometimes.......

I helped a lawyer get a joint remand years ago..BVA made 2 legal errors .... but the vet's claim was awful.... one more claim clogging the system, while probative, awardable claims wait and wait......I dont see awful claims much however.

[mos1833]

thanks everone.