Using Past Claim Approvals To Boost My Case

[oklagonian]

Hey I am new here and this is my first post. I have cruised this site quite a bit in the past and now I registered to become a member.

I have searched, and found a couple of cases similar to my own just doing a google search. What I want to know is if there is a direct source to all the judgments? Maybe a VA site or something?

Thanks in advance,

Oklagonian

[Tbird]

Search Board of Veterans Appeals Decisions

Search US Court of Veterans Appeals Decisions and Opinions

[free_spirit_etc]

Also - look up the cases that the sources you find cite.

[broncovet]

The Court of Veterans claims has at least 3 "types" of cases, depending upon the number of judges.

1. Single judge

2. Panel of judges

3 En Banc All the judges.

Only the panel and EN banc are "precedential" and no BVA cases are precedential. Here is what this means.

If your case is similar to one of the precedential cases, then the court is bound to rule in a similar way, if they think your case is similar.

However, if the CAVC is "single judge", or any BVA decision, the CAVC can pretty much disregard those cases, as they do not set a precedent.

In your case, its best to cite precedential cases. However, some of the single judge and BVA cases may cite a precedential case in their reasoning, that you can use. This does not mean non precedential cases are wrong, it just means that the judge may or may not agree with another judge, but, if its a precedential case, he pretty much has to have a very compelling reason as to why this case is different than one his peers already decided earlier.

A very good investment is the "Veterans Benefit Manual" which lists precedential cases and their effects on certain areas of Veterans law. Pretty much all of the opinions offered in the VBM are based upon previous precedential cases, except where other wise noted. Some will be based on opinions posted by general counsel, some on case law, and some on VA "fast letters" which are statements of VA policies binding on VA. All Federal Circuit cases are precedential, as are all US Supreme Court cases. Many times, the Courts look to define the "intent of congress" who passed the laws. As one Supreme court justice explained, if "the intent of congress" can be determined, that is the end of the matter and that is the way it will happen, pretty much every time, unless the US Supreme court rules congress intent as unconstituional.

[Pete53]

Although BVA cases are not precential they vite VA Rules and Regulations. I won my claim by searching BVA claims and using BVA words and phrases including cites. When I finally did win the RO said that I had done a good job putting my claim forward.

Good Luck the best part of Hadit is that you can ask questions and get opinions and suggestions.

[Berta]

I have used BVA cases ,like Pete did,

whereby they discussed a 'legal' interpretation.

Using a BVA case from a vet ,who is granted SC for the same disability you or any other vet has, really doesn't hold any weight with the VA, because every claim ,and decision, is unique to the veteran whose claim they decide.

However BVA cases hold a wealth of information.

In a very old BVA case I had, (maybe 1996?) the BVA denied a claim I had pending for PTSD contributing to my husband's death.
I had won the claim under 1151, and under a completely different basis at the VARO ,while the BVA case was pending.I never withdrew the BVA appeal and thought my rep at the time had withdrawn it.

It had become a moot issue and was denied. However in the older decision , the BVA stated the award from the VARO (DIC under 1151) but also stated if I successfully ever proved direct service connection, the VA would have to refund my FTCA settlement offset.

In 2009 I won an award from the BVA direct service connected death, and promptly sent the VARO the older BVA decision, highlighting the part about the offset.
I also sent them to regulations the BVA used.(from M21-1MR)
They failed to act on my request for the offset refund. I contacted the regional counsel and he didnt want to handle it at all.
I called the VA General Counsel. OGC ordered them to pay me. I got the refund.

My long point is that here, the BVA had made a specific 'legal' statement ,unique to me
But VA case law isn't unique to anyone.It applies to all claimants, unless there are nuances like accrued regulations, AO etc Nehmer, etc.

Since the BVA based the statement on VA case law,like many of their legal statements, they memorialized it at the BVA site for anyone in similar circumstance.to use it.

.

The CAVC is a different matter. Many but not all of their decision set precedent.
A precedent decision is binding on the VA. Nehmer is a good example.

But M21-1MR is something I have used more and more over the years....

It is an extensive long document available on line and on the NVLSP CD.

In M21-1MR is the way the VA is to implement the regulations.
It contains many citations from CAVC, as precedent, for many parts of this manual.

In my 2 pending claims, I cited a specific part of M21-1MR ,in at least in one of them, because it states how the VA should adjudicate one of the claims.

I identify what part of M21-1MR the info is in, and then

I use a scanner to scan the M21-1MR guidelines, and paste it into the claim, and I also paste the hyperlink into my claims.

The BVA search site is fabulous:I use it almost every day. I was there at 6 AM today

The denials are as valuable as their awards.

http://www.index.va.gov/search/va/bva.html

If you find similar claims to yours there, they will state how they evaulated the evidence the veteran had.
Sometimes BVA decisions give insight into other ways to find the evidence a vet needs.
Often the rating info for a similar disability can help a vet determine if they should be rated higher, based on their similar medical evidence.

IMO docs are often named in awards. And if the vet had a lawyer they are identified there as well.As well as any precedent citations for cases you can look up.

They also can contains clues.
I read one word in the first paragraph of a BVA decision,(denial) to a vet who had been denied many times, and his claim had been at the CAVC twice.none of his CAVC lawyers or any reps had really read the BVA decision and never caught that 'clue'.

That one single word in the BVA decision is something I ran with, did weeks of research ,decifered his handwritten SMRs, and then his private doc agreed with the research and wrote a free IMO for him and he won, after over a decade.

What are you claiming SC for ?

You will receive a 5103 letter telling you exactly what the VA needs, and here at hadit we can help suggest ways to get that evidence.

Edited March 30, 2015 by Berta (see edit history)

[oklagonian]

Thank you all for taking the time to give me advice, it is falling on eager ears.

USCG - 4 years - '82 - '86 - Search and rescue/ surf and Heavy WX.

I am 40% SC. Lknee damaged and had a total replacement in '12 (30%) and at that time they awarded my right knee a 10% rating - bilateral. I was treated with Supartz for many years but my left knee finally gave out totally, I was only 53 at the time......I wear a brace on the right knee and get the supartz injections bi-yearly. My right knee is doing well, the supartz even seems to have actually reconditioned the joint. You can see in the X-rays how the osteoarthritis has actually repaired itself and I was able to defer another total knee replacement on Rknee about 6 months ago.

Here is my conundrum. With a wrecked Lknee I spent 25 years contorting my body to try to keep my left side from taking much load bearing ....... I wore a brace but I could still pop it out while in the brace and some days couldn't wear the damned brace cuz of all the swelling. Anyway....In May of '13 I had a C3-C7 fusion and had a diagnosis of damage to my mid spine area, T12ish - L1 ish. and Dec. '14 had my left thumb fused due to severe osteo damage. I have also been placed in que for surgery on both shoulders for both osteo and muscle rips. Bear with me here...... The last 3 or so years I have had severe pain in my right testicle, yet sonic scans, SAT's do not provide any clues. I hada procedure done this Jan where they outpatiented me with some crotch area nerve blocking....but it did not help a bit.

I contend that my neck and mid back were damaged in two ways...... first of all in a boat incident that resulted in the boat being turned upside down in the surf..... It was my very first time on a boat in the ocean......that resulted in all four of the crew injured in some way.I just plain hurt all over for weeks, yet I did not want to go to the Dr cuz I did not want to be labeled a pus, so I took my little neck pain and just toughed it out.

OK, back to the present. By using my R leg as my anchor I would often rely on a left arm - r leg pull and a R arm - R leg lifting or anchor stance.....I was a commercial fisherman for 10 years...... by the time I gave up fishing I was a mess. I think my testicle problem may be related to nerves in mt spine, The tie in with the other stuff I think you can understand.

I can barely work at all anymore, and am in a position where my employer (USPS) is doing an Occupational Health assessment because of a position change......and I think I may not be allowed to continue my employment with them.

Sorry for the long message, I just wanted to be thorough. And, yes, I can find documentation and witness accounts to the boat situation.

Thank,s so much

[broncovet]

I think its a good idea to search all 3: Federal, CAVC, and BVA.

I agree with Berta and Pete to also use BVA, however, whenever I can I cite NOT the BVA case, but instead the case BVA cites which is precedential.

You can also cite BVA decisions, but I prefer to cite precedential cases, whenever possible and only if I find nothing would I cite BVA.