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

[Flatbroke]

Broncovet,

I just called my attorney and left him a message about item 3 and then looked at it myself. HOTDOGS looks like something my attorneys can use.

[Berta]

http://search.uscourts.cavc.gov/isysquery/05b2d4d4-2020-465c-ab46-cbdd3758ad6e/1/outline/5/

OK, I found where your attorneys filed a NOD (Notice of Docketing) at the Federal Circuit Court on June 20.2012.

In the CAVC archives the case says ,in part, this:

“January 22, 2010, decisions of the Board of Veterans' Appeals (Board) that (
1) denied a request for
revision of a 1970 regional office (RO) decision based on clear and
unmistakable error (CUE), (2)
denied a request for revision of a 1996 Board decision based on CUE, and (
3) determined Mr.
Chastain was not entitled to an effective date earlier than August 27,
2001, for service connection
of his low-back disability. Mr. Chastain argues that the 2010 Board erred
by determining that (1)
there was no CUE in the 1970 rating decision, (2) there was no CUE in a
1992 RO decision that
denied reopening of the original claim, or in the 1996 Board decision
affirming the 1992 RO “

and:

“Contrary to Mr. Chastain's assertion, the record reflects confusion
regarding what errors his
counsel asserted below. The only clearly asserted errors at the hearing
were that the 1970 RO failed
to adjudicate a theoryof entitlement to benefits based on aggravation of
Mr. Chastian's spina bifida,2
and that this error was compounded in subsequent decisions, including a
1996 decision. Read as a
whole, and in context of the decision rendered in Mr. Chastain's case, it
can be determined that
counsel was referring to an error in the 1996 Board decision that denied
reopening his claim, but he
provided no "degree of specificity" as to what that error was, and it is
unclear what that error might “

As indicated in the text, supra at 4, Mr. Chastain's briefing to the Court
does not specifically assert 2010
Board error in not addressing a failure of the 1970 RO to address
aggravation, but, also as noted, even assuming Mr.
Chastain's briefing can be read to make such an argument, it fails.
2
5


v. Brown, 9 Vet.App. 412, 422 (1996) (equating manifestly changed outcome
with a change in the
merits outcome and finding that a manifestly changed outcome requires a
finding that the underlying
claim for benefits would be granted) “

and then the SSOC statement......

Do I understand that this is the case your attorney recently filed at the Federal Circuit Court?

I won a Cue ,Jan 2012 (I think it was)and the story as to how did it is in the CUE forum here.

The BVA held that the CUE claim didnt have 'specificity'.

That is a big problem with CUE claims that fail.

I stated 3 regulations ( to include a statutory mandate) that the VA broke when they committed a CUE in a 1998 decision I received.

I stated and enclosed legal evidence of why they should have applied the 3 regulations to that decision.

I stated that the medical evidence was in VA's possession at time of the alleged CUE although some of it might still have been with the General Counsel, but still , an entity of VA had it,so it was in VA's possession.

I enclosed the regs and mandate they broke and also enclosed copies of the medical evidence they had in 1998 and told them exactly how they erred and how it manifestedly al;tered the outcome because I was denied a substantial accrued benefit ( the veteran had died prior to the 1998 DIC 1151 award that lacked the accrued payment.I reminded the VA that my accrued application was dated, and in my C file , within one year of the veteran's death and that they owed me money due to their CUE in a 1998 decision.

They granted and paid the retro last year.

Did your lawyers access all VA case law and regs and go over the older rating decisions carefully?

A manifested altered outcome is contingent on 2 things :

If in fact they committed a CUE, they must owe some cash.

1. It must end up as a compensable disability rated at 10% or more,

2. by virtue of established medical evidence they had, when they made the past decision being cued.

Since the medical evidence must have been established and ion VA's possession at time of the cued decision, then all of the evidence to support the CUE must be legal evidence.

This is critical:

“but he
provided no "degree of specificity" as to what that error was, and it is
unclear what that error might “

How did your lawyers overcome that for the Fed Cir case?

What Federal Circuit court are you dealing with?

This is not a CAVC anymore from what I see here.

In my opinion your lawyers should have been considering 38 CFR 3.156 C even before your appeal went to the BVA.

"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."

I assume you have the SMRs yourself because you said they were never 'lost'...when did you send them to the VA as evidence?

Was any CUE claim ever filed on the fact that VA never even requested the records,

in violation of 38 CFR 4.6?

[Berta]

38 CFR is a beauty and has worked for me:

Here it is short and sweet.

http://www.law.cornell.edu/cfr/text/38/4.6

[Flatbroke]

Berta,

Thats it, my attorneys have been reserching old cases and outcomes, good or bad. Also information I have been sending on from Hadit about cases like mine and others. My attorneys are very happy to get this information.

One of the things in the 1995 filing was the VA sent me a letter stating they had requested my files from all the places I had been treated in the VA system. They stated that there was no response and that if there was no response in 30 days they would have to made a decision on what they had.

I sent them a NICE? letter and explained to them that the reason that they were remanded in the first place was because they had made decisions without all evidence in front of them. I also stated that if they did not have the medical records in 30 days let me know and I would send them copies because I had them. The St.Louis office did not contact me and made a decision back to the BVA and I heard from the BVA I was denied.

As to the the original, the VA had the Military Medical records in thier hot little hands after the first claim in 1970 but in writing said that they did not have my records when the first decision was made but the evidence "typed in and wrote in by the physican" that I had spondilisis would not change the raters decision.

II've said enough for now any questions you can send me an email.

Flatbroke

That there was not a benifet of the doubt in this point. Except after the IMO by my DR in 2004 the hearing judge stated the preponderance of evedince gave me the benifet of the doubt according to my MILITARY MEDICAL records and VA medical records. If that was true in 2004 the why not in 1970 when all the VA did was xray, exam and decided I had no claim?

My attorneys are in contact with an attorney that has a lot of experiance with VA claims and he said my case looked very good.

My case is going to be at the U.S. Federal Court of Appeals in Washington, D.C. on May 8th.

[broncovet]

I think it is CUE for the CAVC (or Board) NOT to follow regulations, that is, to apply 38 CFR 3.156 C. The VA can not just ignore their own regulations. Neither can the Board, CAVC, etc. They either have to apply 38 CFR 3.156 C or give a "reasons and bases" as to why it was considered and rejected.

There are very specific definations of "New and Material Evidence". It can neither be cumulative nor redundant. And, it has to have a reasonable possibility of substantiating the Veterans claim.

Shade vs Shinseki discusses N and M Evidence in some detail:

https://asknod.wordpress.com/2011/09/27/cavc-shade-v-shinseki-new-and-material-evidence/

Edited April 10, 2013 by broncovet

[broncovet]

Shade vs Shinseki says it this way:

. However, it is clear to the Court that VA’s use of the language in § 3.156(a) to further define “new and material evidence” is capable of being interpreted in a manner that had the opposite of the pro-veteran result that the use of the similar language has in the VCAA. As previously noted, the purpose of this regulation is to explain what kind of evidence will qualify as “new and material.” There are three operative sentences in the current version of § 3.156(a). One sentence discusses only new evidence and another sentence discusses only material evidence. The regulation then concludes with a third sentence discussing new and material evidence that uses the phrase “reasonable possibility of substantiating the claim.” This language can be read to suggest that the evidence must affect the merits outcome of the claim. The language of the regulation indicates that newly submitted evidence must meet the new and material requirements as well as the general explanation laid out in the last sentence before a claim would be reopened. This language, however, must be read in light of 38 U.S.C. § 5108, which states that, in order to reopen a claim, submitted evidence must simply be new and material. Therefore, the words “raise a reasonable possibility of substantiating the claim” cannot impose some new requirement beyond that required by the statute without invoking an analysis of whether the Secretary had exceeded his rulemaking authority. However, such an analysis is not required in this case because the Secretary has, as noted above, provided an explanation of the language in the Federal Register. That explanation is not inconsistent with the underlying statute. However, it is necessary for the Court to emphasize that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence. Rather, that phrase provides guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements.7 In particular, the immediately prior sentence discussing material evidence provides that, to be considered material, newly submitted evidence must pertain to “an unestablished fact necessary to substantiate the claim.” (from Mr. Shade’s decision)’