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]

Thanks Broncovet,

I sent this link to my attorney andhe will look into it.

I have been away from the computer today and will be often as my mother-in-law has lung cancer that has spread to kidneys, liver, ovaries and other places.

She is going down hill and I have to go to madision, Wisconson for my pulmanary doctors and keep up with my wife and mother-in-law.

Life is as it is and you can accept it and keep trucking or sit down, curl up into a ball and quit. I choose not to quit and never will and am looking for a big diesel.

[Berta]

I am still confused as to whether you are filing in a Federal District court to appeal a CAVC decision or the CAVC is still willing to accept a brief or additional argument.

In any event, we had Robert Walsh,notable veterans attorney at SVR radio here at hadit yesterday and he discussed 38 CFR 3.156 © and has used this regulation himself for veterans.

Just highlight this link and click on Open and any media player you have should be able to download the show and it will begin playing on your PC:

http://www.hadit.com/svr.html

I forget if we discussed 38 CFR 3.156 © on part one or part two of the show. Your lawyers as well might want to listen to the show.

Also we have discussed that regulation at length here many many times, available under a search, and we have an entire CUE forum.

As I think I said on the show ,38 CFR 3.156© is Golden and when VA is challenged under this reg, along with the newly discovered service records, they usually cave in and can award Mega retro.

I didnt see 38 CFR 3.156 raised in the CAVC pleadings but then again didnt have time to read it all.....

Often a vet might well need to raise both 38 CFR 3.156© and then file an additional but completely separate CUE claim in some situations where the evidence should have garnered an award ,or a better EED long ago.

Did the BVA state that they had dismissed your CUE claim without prejudice? Or was it a denial that your appealed to the CAVC?

The "without prejudice" statement is a goodie. It means if the CUE claim is carefully shaped again, with specificity, and supported by legal evidence, the CUE has a chance to be re filed ,reworded, and then considered again,without prejudice , by the VARO and then maybe ultimately by the BVA.

[Flatbroke]

Berta,

Filing in U.S. Federal Court of Appeals in DC on CAVC decision upholding BVA decision.

I dont remember "without prejudice" on any SOC.

I talked to my attorney last nite and he is arguing another case today but will be on this tomorrow. He did glance on what I copied and sent to him on you CUE win. I sent him the link Broncovet sent and I will send him the info on the SVR radio show

and let him listen to it. Thanks very much I hope to win this one.

Along with everything else at 1 o'clock this mornung someone tried to sipon gas out of my truck, couldn'y sipon so they put a hole in the tank. Thats when the motion lite went on and we saw it. By the time we could get out there they were gone and gas running out on the ground. We got a bucket and saved about 11 gallons out of about 19. Well now I got to float a another loan to refill the tank after I get it patched.

[FormerMember]

Interesting case and equally interesting appeal to the Fed. Cir. I hate to say this but your attorneys are not very well acquainted with 38 CFR § 21.1403. The claim should never have gone forward in the state it was in. Now it is irretrievable. I'm afraid that it was a waste of funds to file it at the Fed. Cir. Read the rebutted contentions of the CAVC decision. You cannot present evidence in 1996 that was not before the adjudicator in 1970. If you honestly are going to use the contention that you never received a SSOC as a rationale to say a claim is still open, and the C-file you possess contains said document, then you have been put on notice that you have it merely by its presence in the file. By referring to it in a subsequent letter, you admitted you had received it. There went you credibility out the window. This is all established case law.
As for a previously raised claim of CUE not being subsumed by a subsequent adjudication, that, too is a non-starter. You get one bite of the apple on a CUE claim. If you do it pro se, you get a pretty big bite. If represented, it is assumed your law dogs are bright and perceptive. Nevertheless, unless dismissed without prejudice, you get one and only one bite. Inasmuch as you were using ex-JAGs, they have no unique legal training in VA law. I 'm sorry you didn't prevail on this but any claim needs to be guided and supported all the way through with great care by an intelligent life form.
The CAVC appeal looks like a half-hearted attempt to find something-anything- wrong upon which to hang your hat. CUE is the absolute worst venue in which to present it. I know because I speak from experience. Fortunately my attorney recognized this and pulled mine back from the brink in time. We will be filing a complex CUE/§ 3.156 © compendium and rely on both facets to win. Each facet of a CUE claim has to be examined like a diamond before it is cut-not after a preliminary loss at the RO or BVA. Readjudicating it again and again will produce exactly what you got- a decision subsumed by the one following it in 1996.
It's sad that some of the legal help out there is not dialed in on this facet of VA law. As I say in my book, when you assay to file CUE, the rules are set aside. This is a knife fight in a dark alley and most of the protections afforded you in 38 CFR are no longer available. You are calling the VA a liar and a cheat. Those are fighting words. Everything you present as CUE has to point like a compass to North. There can be no other interpretation about "Gee. Was it Spina Bifida or spondolythesis? The record's unclear." That was decided in 1970. You are in 2013 and have to prove it was incorrect. You (and your legal counsel) didn't do this. Monday morning quarterbacking is not going to fix this one.
If you had pursued the § 3.156© path, that was far more user friendly. However, it, too, has pitfalls. Any new official service department records associated with the file must be instrumental in the win or an EED of it. This is crucial. You have won so § 3.156© is basically moot for that facet. This actually is only useful while the claim is still in contention or if you reopen a previously denied one with § 3.156© -type records. VA is fond of denigrating the official records as not being probative or germane to the discussion or win. Here, pursuing the EED, §3.156© might have been useful but it was like a parachute that was never deployed. An EED cannot be pursued once the time limit to appeal it has run as in your case. That dog won't hunt. You had the opportunity to do so within one year of your win. Every CUE argument presented was flawed by existing law and precedent (Russell, Fugo, Damrel, Cook etc.). I fail to see where the attorneys came up with anything amiss. Specificity was AWOL in this claim.
I don't mean this to be rude or accusatory. I merely view it in retrospect as to what can happen to a claim to provoke a loss. There are many errors and I'm very sorry you lost. All the advice offered by others here would have been useless this late in the game. You have to present your contentions in your appeal to the CAVC before you get there (when you file). They should, by rights, mirror your contentions on your Form 9. You are not permitted to make them up after you get there. Same for the Federal Circuit. Thus presenting § 3.156© defense at the eleventh hour would not have availed you in the least. Your attorneys knew this as well. What they could have possibly gotten excited about in April escapes me.
I guess the good news is that you finally prevailed. Many do not. Welcome to the 15% club.

Edited June 17, 2013 by asknod

[carlie]

A claim of CUE can get more than one chance, more than one bite

of the apple -

if it is plead with specificity, on the same issue, but under a completely

different theory.

[broncovet]

Nod

MMM...Opening this up for discussion debate.

1. First I am unsure if the "one bite" CUE is wholly true. I think that it is entirely plausable there are more than one errors in a given case, and there could well be more than one "Cue theory" advanced by the Veteran or his representative, at the same or different times. If your car battery is dead, that does not guarntee your fuel pump is operating correctly..you could well have both problems at once. In a similar manner, a Vet could present "CUE theory A" and be hacked to bits, only to present "Cue theory B" and prevail. The Veteran would not, however, be able to repeatedly ask the court to reconsider "Cue Theory A" over and over again. This being said, "Cue theory A" may well be your "best shot" so dont waste your bullets at something moving in the brush. What ever is "moving in the brush" may be your only shot at getting a "buck" so shooting wildly may just scare him off, and you may never get a shot at him again. Then again, he may run 100 yards, then turn around and look to see what you are doing....

2. 38 CFR 3.156 A, B, and C. I see nothing here that says that the Veteran must yell, "3.156 C in the hole" within a year of the decision. Of course, we all know they become final in a year. But, 3.156 applicability normally applies to the effective date, and it is indeed error (an not necessarily harmless) for the VA to NOT apply all regulations to include 3.156. That is, if the VA failed to apply 3.156, then that would be CUE, or, so says broncovet theory. Court cases have been decided that the VA is not free to ignore its own regulations, and there is no exemption for 3.156, either.

Remember, too, when you RE***Open a claim due to New and material evidence, then that claim wont become final until that becomes resolved. So, finality would not apply if the claim was re opened due to new service records, for example.

I think the VA uses that finality crapola to deny, when they should not be getting away with it, because they can. They can get away with it, because we dont appeal. If we appeal, then we can scream 3.156C (reopening a claim due to new service records) TRUMPS finality...I am not sure about this as far as case law, but I do know that an "open claim" (or re opened!) is not Final, but pending, which enables us to resubmit evidence waiting on the VA to make a decision, even if it was 30 years prior. I would like to see the VA pay...you see, the VA gets on their fog horn and says, we dont want deadlines, because each claim is different so some claims take longer than others. So, an "open claim" does not become final, even with a VARO decision after a year because "reopening" the claim" based on 3.156C means the claim "isnt over"..it is still being worked. It is NOT FINAL. J1VO.