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dav_marine72

Firing Your Lawyer?

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I assume once your under contract there is no way to get out with your lawyer? I would assume you need to prove some type of malice on their part? Not happy with my current attorney but I think I'm stuck until appeal process is over which means until I die. Anyone know if there is anyway out?

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Need a lot more information! Have you discussed your dissatisfaction with him and given him the opportunity to correct what ever is bothering you? What work has he done for you? He apparently felt that you have a winnable claim with enough potential retro $ to make it worth his time; and you felt he was the right attorney for the job. What has changed? What has or hasn't he done in violation of your contract? Can what ever it is be fixed? How long has he been your attorney? What are you claiming in addition to the long list of conditions for which you are already service-connected? What VA benefit would you receive by winning the claim the attorney was hired to assist you with? At what stage is your claim currently?

It has been my experience that it is much more difficult to get an attorney than it is to get rid of one. Keep in mind that if a second attorney takes your case, that attorney becomes liable for any and all possible errors by commission or omission committed by your original attorney. This could be legal malpractice and/or legal malfeasance as opposed to "malice" which would mean he has intentionally committed some act for the expressed purpose of harming you or your claim. The latter is extremely rare and would be dealt with by your state's bar and would have little or nothing to do with your claim. Not many attorneys are willing to take a case under those circumstances unless the potential chances of success AND the amount of money they would collect by being successful are BOTH very high.

Edited by GuaymasJim

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I have a crappy lawyer too. I have had to do all of my leg work. I had called him probably 100 times and finally last week after a few months he called back. He had the nerve to tell me "Since it has only been 5 months on your claim Sir, we would only make $300 on your case if you get approved, WTH". Since I am under contract, I am just going to do all the leg work, and if I have any questions, there is always a lot of help on this site. If I win, I don't care what I have to pay the lawyer, as long as I win in the end. Sorry to hear of your misfortunes. You just need to take the weekend and think about what to do next. God Bless and keep us posted.

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Keep in mind that if a second attorney takes your case, that attorney becomes liable for any and all possible errors by commission or omission committed by your original attorney. This could be legal malpractice and/or legal malfeasance as opposed to "malice"...

After reading this statement I drove to Whole Foods and climbed into a barrel of bulk Sea Salt and quietly closed the lid.

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Pick your lawyer carefully and pick your fights carefully. I am in favor of lawyers helping vets, but when I read what I just read I wonder. However, if you have a claim where you feel you are in over your head then asking for legal advice and/or representation is probably your best bet most of the time. I tell you one thing: The amount of potential retro is equal to the amount of zeal the lawyers show IMO. My lawyer has made many trips to Florida from Jersey and from Jersey to DC on my (and his) behalf due to potential retro, and the fact he is in so deep now he wants to win badly. When they ignored his briefs at DRO and BVA he got mad. Now at CAVC they may still deny us. Such is life with the VA machine.

John

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
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