Recent Cavc Decision

[Berta]

I posted this info before but it bears repeating-

If a claim goes to the CAVC- no additional evidence can be presented.

Very few claims succeed at the CAVC and they succeed on what is in the file when the CAVC gets it-

this means that in the years it takes to get on the CAVC docket the veteran should do ALL they can to bolster the claim-prior to getting to that point-

This is good example of what I mean:

http://webisys.vetapp.gov/isysquery/irl738a/2/doc

"On December 28, 2005, the appellant, through counsel, filed his brief . On February 10, 2006, the Secretary filed a motion to strike a portion of the appellant's brief that quotes and relies on an attachment to that brief. The attachment is an excerpt from a treatise on orthopedic

practice, the second edition of the Principles of Orthopaedic Practice ( McGraw-Hill 1997). See Appellant's Brief at 8-9. The Secretary also seeks to strike the attachment. The Secretary argues, inter alia, that: ( 1) the document in question is not contained in the record on appeal (ROA ); (2) the document was not part of the proceedings before the Secretary and the Board of Veterans' Appeals (Board), as required by 38 U.S.C. 7252(:); and (3) pursuant to the Court's caselaw and Rules of Practice and Procedure, the document may not be considered by the Court. Motion to strike at 1-3."

The VA motion to Strike the attachment (the treatise) was successful.

"Upon consideration of the foregoing, it is

ORDERED that the Secretary's motion to strike is granted. It is further

ORDERED that the appellant's brief is not accepted for filing. The Clerk will return the appellant's brief with this order. It is further

ORDERED that the appellant file a brief which complies with the rules of the Court within 14 days after the date of this order. It is further

ORDERED that the Secretary's motion for an extension of time until April 10, 2006, to file his brief is dismissed as moot."

Lucky vet- he got another chance as the brief was unacceptable-but still cannot support the claim with additional evidence-

Blanford V Nisholson

The attorney he had was Daniel G. Krasnegor- who is sure off my list for any potential representation.

Apparent the attorney did not know this facet of CAVC case law.

[Josephine]

Berta,

This is absolutely true. No evidence can be added once you file to the courts.

I would like to know if you are anyone does know. If you receive a negative from the BVA by way of the AMC - Do you are don't you have three months to place additional evidence into your claim.

I have a letter stating that I have one year to submit evidence for my claim, which would be May 2007. It states, even if a decision has been made, additional evicence can be submitted.

I didn't wish to send anything more at this time, as the AMC has received my complete Administrative Records, from the Archives by Aimme - arrived last Monday.

When Dr. L - the Lady Psychiatrist placed into her C&P all of those unstantiated accusations of me. I sent an immediately rebuttal to the AMC for a complete investigation of each of her allegations.

The Veteran denied any article 15's. The AMC told me they wanted to see the Article 15's.

I know that there aren't any.

If she is going to call me a "cutter", she had better be able to prove it. I am definitely not that either!

If I receive a neg, I was going to use that time to send in an IMO. Got to find someone to do it. I sent an email to the links that you sent to me.

I always get carrried away when I speak of that particlar C&P. Sorry about that.

Thanks,

Josephine

[vaf]

Actually Berta, Daniel Krasnegor does realize it. He represents my husband in his pending Court appeal. He in fact explained that point to me early this year, when I didn't realize it. I think there was a difference in opinion as to interpretation of the role of the evidence, but live and learn. It could possibly be a case of knowing it, but "nothing ventured, nothing gained." It doesn't necessarily mean that he wasn't aware of the fact beforehand -- just my take on dealing with him. I hit him with a barrage of questions before we hired him, and he answered every single one head-on, so I think he knows his stuff.

We just heard from Mr. Krasnegor that the brief filed by another one of his attorneys, David Boelzner, was reviewed by VA counsel, who acknowledges that the Board committed some errors, and that we may be able to mutually agree upon a voluntary remand back to the Board. We're now waiting to find out what issues, if not all, are being negotiated. We may thus be able to avoid the year-plus long wait to go before the Court.

I respectfully disagree with your appraisal.

[Berta]

Vicki- I stand corrected !!!!-based on your experience-and I respect highly what you just said-

now he is at the top of my CAVC llawyer list!

I just could not understand why this was done-with the treatise or why the brief was not accepted by the court-they didnt elaborate.

One of my local vets had a similiar situation but his lawyers were AWFUL!

Thank you for immediately correcting what I said---

yes you are right- nothing ventured, nothing gained-

He might have needed to gain a little more time and this shows he got that for the vet-

Thank You.

[vaf]

No problem, Berta. I'll let everyone know how our situation turns out. I'm just speaking from personal experience. We had a very bad time with a well-known veterans law attorney, a woman, out of Washington D.C. If anyone is interested in my take on that individual, let me know.

I'm all for saving a veteran from a lot of grief on this subject.

[Berta]

I have a Sh-t list too Vicki-based on what vets have told me-it is a short list however-

You made a very good point- too--- lawyers see a lot more than we do sometimes-

Just like good IMO docs-

I thought I knew exactly what my husband's med recs revealed.

Years later I found the basis and evidence for a new claim.

Things I overlooked in the 1990s as not important were critical to another claim- especially something they crossed out that I could still see-but paid no attention to it at all for 10 years.

It is what prompted the freeby brief IMO I got from the VA doctor who wrote this entry.

When I got his statement- it all fell into place and Dr. Bash just loved that statement and the entry.

[Objee]

I posted this info before but it bears repeating-

If a claim goes to the CAVC- no additional evidence can be presented.

-Snip-

Berta,

My law instructors always said "Prepare your case for appeal and the trial will take care of itself."

IOW, put every favorable piece of evidence in the filing that you can right from the get-go and you will have prepared your claim for appeal. Certainly you add new probative evidence as you go along and discover it.

Like a newspaper article, "headline" summarize your claim in case you get "top paged."

Ralph