Cavc Claim Update

[daklander]

My case went to the CAVC in March of 2012 and to a judge in August of 2013. Yesterday I got an email from my attorney. The Court has looked over your case, and identified it as a possible case for oral argument. Oral arguments are very rare in the Court, so this means the Court views your case as having some important issues. So now we're on a 15 day stay while he and the VA negotiate for either approval or remand. More than likely it will be a remand if they come to terms.

[FormerMember]

OGC came to my attorney when he proposed oral arguments on AO usage up in Laos (March 2013). VA promptly bought us out. You may have already won but be careful how they phrase it. They are the past masters of the three card Monte game when they do those Joint remands. Just make sure there's iron in the words. If your atty has cajones, he'll ask for specific concessions and not an open ended JMR that "promises" to review some evidence. Too many Vets have just ended up with a new noose using the old rope e.g. same denial with new words and legal justification.

a

Edited February 6, 2014 by asknod

[daklander]

OGC came to my attorney when he proposed oral arguments on AO usage up in Laos (March 2013). VA promptly bought us out. You may have already won but be careful how they phrase it. They are the past masters of the three card Monte game when they do those Joint remands. Just make sure there's iron in the words. If your atty has cajones, he'll ask for specific concessions and not an open ended JMR that "promises" to review some evidence. Too many Vets have just ended up with a new noose using the old rope e.g. same denial with new words and legal justification.

a

I don't think there's a lack of stones on this guy. He's been like an f'en bulldog and we had an answer for every VA reason for the orignal denials.

We'll see how it goes in next couple of weeks.

[broncovet]

The JMR is often an "excuse to delay", not that they need one of those. My JMR was simply a one way ticket to the hampster wheel.

[john999]

My claim went to a three judge panel in December of 2013 after sitting with a single judge for about 8 months. This is the second time it has gone to the CAVC after a remand back to BVA to fix errors the BVA made themselves. I understand very well why VA would not want AskNod's AO claim to go forward because if he won it would open a new area for "boots on the ground" AO exposure. I don't understand exactly why VA would make a deal to avoid a panel hearing on Daklander's claim. What is the issue the VA is afraid of exploring?

[daklander]

snip.....What is the issue the VA is afraid of exploring?

One could be that they came to the conclusion that I'm not qualified to identify an agent orange barrel, a barrel that was used on the ship as a BBQ Grill. They also, against maritime rules, determined that the pier at Danang harbor is not part of the land because, as they claimed, Danang is wide open to the sea.

[daklander]

My claim went to a three judge panel in December of 2013 after sitting with a single judge for about 8 months. This is the second time it has gone to the CAVC after a remand back to BVA to fix errors the BVA made themselves. I understand very well why VA would not want AskNod's AO claim to go forward because if he won it would open a new area for "boots on the ground" AO exposure. I don't understand exactly why VA would make a deal to avoid a panel hearing on Daklander's claim. What is the issue the VA is afraid of exploring?

Here's the latest news John.

Here's the order from the court issued on the 10th. My attorney and I have had a long conversation about this as well as email notes. We were hoping at least for the remand and consider us in a probably winning situation now.

If this goes to remand I'll retain his services for the lower court or VARO, where ever it's remanded to. Max has been one hell of a bull dog on this case and has not missed on any of his projected possibilities as we've gone along.

It is ORDERED that this case is submitted to a panel for decision. Pursuant to Rule 34 of

the Court’s Rules of Practice and Procedure, the Clerk will schedule oral argument as the business of the Court permits.

We are still in negotiations with the VA and, after discussion with my attorney, we agreed to a Joint Motion for Remand request be submitted.

The VA folks are the ones who apparently made the first move on this. My attorney believes it is, as we knew going in, the VA had made some erroneous decisions, one in particular was their denial that a pier is part of the land.

What prompted my decision here is time. If we decided to go with the panel and oral arguments the time factor would have increased by some unknown factor since it depends on the panel's schedule. That's the big disadvantage. If I was sure I had enough time left in this world I'd have gone that way for the simple reason that a win there would set precedence in some particular areas of my claim. Those precedences would then apply to other Veterans' cases with the same of very similar claims. Of course, on there could also be the downside of a denial which would also then carry precedence.

We feel the remand is the quicker option and, holds a better chance for an approval of some parts of the claim and any approval is a win, as has been the order to be heard by the panel and subsequent decision by the VA to offer the remand.

So, all in all, we feel pretty good about the status to this point.