Nod, Dro, Traditional Appeal, What Oh What Should I Do?

[63SIERRA]

There was a very good discussion on the appeals process on the recent Had it radio show. one of the topics discussed the actions possible to take once you get your denial . Heres what I did. I filed a notice of disagreement AND filed for a reconsideration request. Heres why. You can submit new evidence and arguments and it goes on record, it also gives the RO a second look at the claim, while still preserving your right to appeal the denial. This is the time to send anything and everything that can help your claim, including a synopsis of why they were wrong. THe great thing abt doing it this way, is you still have them on the hook for a traditional appeal, AS LONG AS YOU DONT LET THE 1 YEAR DATE EXPIRE.

Don't ask for a DRO, and don't ask for a REOPEN. Ask for a RECONSIDERATION, . Send in the additional evidence, your nastygram calling them every dirty word you can think of (just kidding, tell them they are brilliant but made a little error), ha . and wait. They may still deny, but they may not. I think a DRO is usually a waste of time from the research ive done. its a stall tactic. They can just as easily take a second look, and see if its correct. either they will fix it or they wont. Then you will need to go to the BVA anyway, So why let them sit on it for any longer than needed, on your nickel.

[RUREADY]

The CAVC can and does: affirm, vacate, reverse, or remand its rulings. The Joint Motion for Remand or JMR is like the settlement phase that follows discovery in civil litigation. Opposing attorneys get together and negotiate a settlement for their clients in a JMR before it actually gets to "Court" for a judge to decide. You can get yur butt handed to ya' without an attorney in there fighting for the best JMR. The VA Secretary speaketh with forked tongue!

Asknod eats, sleeps and breathes VA Law and he went into the CAVC with an attorney and got a healthy chunk of change from the JMR. No way would I attempt it without an attorney. If I have to go up to the CAVC; I am going to win. Losing is not an option.

The CAVC does not write law, they interpret law. CAVC cases that lend precedence (do they need a panel decision?) are few and far between but they can be "cited" to lend credence to a particular claim at the RO or the BVA.

So to get this right a remand is not a win at CAVC only for a lawyer to get paid correct?

[RUREADY]

I might have find it

A remand is considered a win for you at the CAVC. When this happens, I always continue to assist my veterans at the BVA. If the BVA denies your appeal again, I evaluate the BVA decision to determine whether or not a new appeal should be filed. If the BVA remands (sends back) your appeal to the VA Regional Office for more development, or if it grants your claim for benefits, I evaluate your appeal to determine whether or not I can continue helping you.

to me this is not a win just another look at it by BVA or RO which still can get denied

[lotzaspotz]

A win in the sense that you live to fight another day, that your claim wasn't shut down at the CAVC, thus forcing you to shell out $450 to appeal to the Federal Circuit Court if you want to pursue it. Also a win in that you again have the opportunity to provide additional evidence supporting your claim, because once the Board reaches a decision, you can't add evidence, and the CAVC only reviews the same evidence that was before the Board at the time of its decision. So, you get $0 at that point, and your attorney gets paid out of EAJA funds. Personally, I don't have a problem with attorneys being paid for their time and trouble in getting a remand, especially since I'm not writing a personal check. Getting a Court remand isn't easy. Read your attorney's filing brief if you find that hard to accept.

One other thing... You would then have a complete picture of the VA's strategy for denying your claim, a roadmap that you can systematically address, refute and neutralize through additional evidence or prior CAVC decisions (another reason to get a lawyer to rep you) regarding claims similar to yours. Previously, you would have been guessing what their strategy would be to deny the claim.

A win in the sense that you live to fight another day, that your claim wasn't shut down at the CAVC, thus forcing you to shell out $450 to appeal to the Federal Circuit Court if you want to pursue it. Also a win in that you again have the opportunity to provide additional evidence supporting your claim, because once the Board reaches a decision, you can't add evidence, and the CAVC only reviews the same evidence that was before the Board at the time of its decision. So, you get $0 at that point, and your attorney gets paid out of EAJA funds. Personally, I don't have a problem with attorneys being paid for their time and trouble in getting a remand, especially since I'm not writing a personal check. Getting a Court remand isn't easy. Read your attorney's filing brief if you find that hard to accept.

One other thing... You would then have a complete picture of the VA's strategy for denying your claim, a roadmap that you can systematically address, refute and neutralize through additional evidence or prior CAVC decisions (another reason to get a lawyer to rep you) regarding claims similar to yours. Previously, you would have been guessing what their strategy would be to deny the claim.

Edited March 16, 2014 by lotzaspotz

[RUREADY]

A win in the sense that you live to fight another day, that your claim wasn't shut down at the CAVC, thus forcing you to shell out $450 to appeal to the Federal Circuit Court if you want to pursue it. Also a win in that you again have the opportunity to provide additional evidence supporting your claim, because once the Board reaches a decision, you can't add evidence, and the CAVC only reviews the same evidence that was before the Board at the time of its decision. So, you get $0 at that point, and your attorney gets paid out of EAJA funds. Personally, I don't have a problem with attorneys being paid for their time and trouble in getting a remand, especially since I'm not writing a personal check. Getting a Court remand isn't easy. Read your attorney's filing brief if you find that hard to accept.

it has to be written to be law no remand.If they denied the claim 10 years what make you think they

wont again. They write the laws they have pen and paper its hard to win at CAVC those lawyers there

are the best at what they do to denie you and if I waited ten years for a remand that's a slap in the

face. I guess that why not many wins there

[lotzaspotz]

Like the New Jersey lottery motto is (or was, I've been gone a long time), "You've gotta be in it to win it," however you interpret what "win" means and however long it takes. Slap in the face or not, that's the system. Evidence is your most valuable weapon, this process has not been reduced to the level of a crapshoot -- we know what we need to do, and what the VA is supposed to do. When they ignore their own regs, we end up at the CAVC. My husband has won appeals as a direct outcome of a Court Remand, once we knew what the VA's strategy was. Ten years, twenty years, back and forth, but we don't get mad -- we meet them toe to toe and are very clear on the fact that we will never give up.

JMO, but If you believe in your claim, then it deserves your unwavering effort, however long it takes, wherever it takes you. Don't worry about what the other side is going to do, the unfairness, the injustice, whatever. These are negative thoughts that will only sap the energy out of your ability to fight back.

[RUREADY]

Like the New Jersey lottery motto is (or was, I've been gone a long time), "You've gotta be in it to win it," however you interpret what "win" means and however long it takes. Slap in the face or not, that's the system. Evidence is your most valuable weapon, this process has not been reduced to the level of a crapshoot -- we know what we need to do, and what the VA is supposed to do. When they ignore their own regs, we end up at the CAVC. My husband has won appeals as a direct outcome of a Court Remand, once we knew what the VA's strategy was. Ten years, twenty years, back and forth, but we don't get mad -- we meet them toe to toe and are very clear on the fact that we will never give up.

JMO, but If you believe in your claim, then it deserves your unwavering effort, however long it takes, wherever it takes you. Don't worry about what the other side is going to do, the unfairness, the injustice, whatever. These are negative thoughts that will only sap the energy out of your ability to fight back.

These are negative thoughts that will only sap the energy out of your ability to fight back.

Hell it already did that by reading John999 cue claim a lawyer don't know the law at the time. I would

much rather have all the evidence before I even think about CAVC and you cant win without evidence. I

wouldn't go to CAVC just to keep a claim alive knowing I cant win waste of time.

Edited March 16, 2014 by RUREADY