Eed & Us Federal Court Of Appeals

[Flatbroke]

This Might be a little long and I will apoligize now

KDM's post prompeted this post and I am trying not to interfere with his.

My attorneys, which have been handeling my appeal since 1995, have finally got to an appeal to the Federal Court of Appeals in D.C.

After being denied for at first lower back SC due to lifting 94 lb rounds while serving in Nam on a M109 Howitzer, my attorneys finally helped me to get 20% in 2004 but the VA only backed up to 2001.

We filled a NOD within 2 months for an EED. The BVA finally denied me EED even though in thier denial they state the the orginal decision was based only on the VA's exam and xray. They furthur stated that they did not have my MILITARY MEDICAL RECORDS in front of them, where on my exit exam the Doctor stated I had Spina Bifida (from birth), but had Spondilicis & Spondalosis. Which is a natural occur in people with Spina Bifida. But this does occur in a time span of 20 to 30 years, not 13 months!

After the BVA denied me an EED my attorney filed a NOD again even stating that the VA and the BVA stated the VA did not have my military medical redords in from of them.

Suprise the CVAC upheld the BVA's decision and denied me an EED of April 1970 for my back , (which was within one month of discharge) so we filled another NOD to the US Federal Appeals Court in D.C.

We filed 1/10/2013 and after the VA's attorneys says the Federal Appels Court did not have jurisdiction to hear my case the Court set a date of May 8, 2013. Man was I floored from Jan to April to set a date, sh** if the VA moved that fast there would be no backlog.

Berta, Carlie, John and a few others I know you want to know the case number. So with out further adu ( I think you can see I am happy) the number is 12-7136 Federal Court of Appeals.

I hope this sets a presadence (spelling) that can help others get thiers.

So as I casualy wait for a decision, BULL I am already climbing the walls I just got to remember to take my Oxygen with.

Later Brothers and Sisters

[john999]

Did the CAVC admit you had a CUE, and then deny it rather than dismiss it?

[Flatbroke]

John,

The CAVC just upheld the BVA's denial. THe CAVC never admitted to a CUE. And never mention point blank that the VA addmitted to not having my military medical records when the VA made thier original decision.

The VA lawyers involved with the NOD going to the US Court of Appeals, said that the fact that the VA did not have my records did not prove the third leg of a CUE . So the first two legs of a CUE I presume were proved.

The attorneys also said that even if the records were there there was not " a benit of doubt" in my favor and that no reasonable person would made a decision in my favor. This even though the exiting doctor not only typed it in he also hand wrote that I had spondilis. But the attorneys said that would not reverse the VA's decision. BULL

There will be three judges and each side is presenting a fifteen minute oral argument.

This is the only case my attorneys have handled for a vetern but two of them at the start were JAG officers. They got pretty upset when they realized how the VA was treating the veterans and have handled my case Pro Bono.

We started in 1995 and they have said they will not give up. They helped me to get my first SC disabality and said that only an idoit would not see that I was effective at the start but I reminded them its the VA. LOL

[Berta]

Gee, I couldn;t find the decision...maybe it isn't posted yet.

I sure am confused here:

"so we filled another NOD to the US Federal Appeals Court in D.C. "

"We filed 1/10/2013 and after the VA's attorneys says the Federal Appels Court did not have jurisdiction to hear my case the Court set a date of May 8, 2013. Man was I floored from Jan to April to set a date, sh** if the VA moved that fast there would be no backlog."

I am surprised the court will hear oral argument.

If you give us either the attorneys name or your name we could find the case better.

[broncovet]

I got the case to come up, but it did not say anything, really. If you had asked me, I would not have recommened a Cue, as this raises the standard of review from "benefit of the doubt" to "undebatable. Instead, I would have sought an EED using 38 CFR 3.56 © New Service records. I dont know if its too late to argue that now or not. However, it would seem the court was in error, as they are required to "liberally interpret" the Veterans filings and to award the maximum benefit the law allows. The VA is supposed to know its own regulations, and apply them, to include 3.156 C, which covers precisely the event when service records are lost then found.

[Flatbroke]

Berta, The hearing is not until May 8th and my attorneys requested an oral argument when we filed a NOD against the CAVC's decision. Its down as Chastain vs Shinseki case # 10-1523

Bronco, As I said this is the first case my attorneys have handled for vets. I will point out 38 CFR 3.56. The fact is my records were never lost, they never REQUESTED them in the first place. And like I said The BVA and then the CAVC stated that my military medical records were not in front onn them when the decision was make.

[broncovet]

38 CFR 3.156 C...not 3.56 c was a typo. You can read it here:

http://www.law.cornell.edu/cfr/text/38/3.156