Res Judicata, and other legal terms

[broncovet]

Res judicata is a latin word meaning:

Quote

a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.

This means if I was denied benefits by the VARO, denied again by the BVA, denied again by the CAVC,  denied byThe Federal Courts and the US Supreme court, I can not raise that issue again.  

However, Veterans CAN apply for benefits at any time and "any" time means that you could re apply with the VARO even if the US Supreme court denied you, but you should have "new and material evidence" that the judges did not have in the past.  

"Res" cuts both ways.  It can hurt you or help you.  If you have already been awarded benefits, The VA isnt supposed to revisit your service connection, but they can in the face of clear, unmistakble error.  An example is if you did not have the requisite period of service (that is, you are not a Veteran), and the VA awarded benefits, those benefits could be removed as you clearly were not entitled.  

Most Vets claims are "not" black and white.  Most of us actually served, and that is of record.  

The VA has to follow their own regulations and the court sometimes compells them to do so.  One of the rules they have to follow is to give you an adequate  reasons and bases as to why you were denied.  

The BVA has every right to "weigh" the evidence.  Maybe doc "A" says your condition was related to service, while doc b said it was not.  The BVA can "pick" one of the doctors opinions, over the other, as long as he gives a reason why he did so:

For example, Dr. "A" said yours was related to service, but Doc B, says no.  Doctor B did a more thorough exam and was your doctor for 10 years.  Dr.  A, saw you for 10 minutes and said it was related to service.  The Board could then explain why doc B's opinion was more probative because it was more thorough.  This denial would likely stick and not be overturned as they explained their reasons.  

However, if the Board did not explain why it picked DR. B over Dr. A's opinion, then the court could rule the evidence was "in equipose" and the benefit should be given to the Veteran.  

The Court generally does not dispute "factual findings" of the Board unless they find them to be clearly erroneous.  If the Board said there was "no evidence of a disease" and the court found a medical exam where the doc diagnosed and treated the disease, then the court could overturn the Board's "finding of facts", but only if the Court was convinced the facts were in error, and not a judgement call.

In other words, a CAVC judge wont overturn a well reasoned BVA decision if there was at least a plausable bases to the Boards opinion.  

However, many times CAVC appeals are based on an "inadequate reasons and bases".  This usually works.  The Veteran deserves a good answer as to why he was denied.  And, the reaonsing needs to be based on the critieria, too.  The Board can not deny the Veteran because he did not like his VSO..as that is not part of the criteria.  The board needs to explain why the criteria was not met.  

If you read BVA decisions, they often state that "the critieria has not been met", or, the critieria has been met.  Sometimes it does not even say whether it was awarded, just that the critieria has been met.  If the critieria has been met, then you get the benefit.  

[Berta]

Superb Broncovet-

And one more reason why we, as claimants, cannot depend completely on anyone holding our POA- 

we have to understand the regulations, and medical criteriae, that applies to our claims- ourselves.

None of us should ever be in a Res Judicata status-

I had a local vet who was at the CAVC twice, and then remanded to the VA again.

This vet had a state POA and then a law firm representing him, at CAVC, and kept getting denied.

I worked on his case for 2-3 weeks- it was a winner -I think he got 8 years of retro 'maybe more like 10 years and I  even prepared a rebuttal to his lawyer fees.(Which I think the VA accepted because he never called me again on that- since I had done the work to get his claim awarded, I testified to VA as to what his lawyers could have done but never did for him  and prepared the rebuttal  geared to the 5 steps needed to challange any lawyer's fee that a claimant feels is too high)  all  in 38 USC-I forget what part.

Not one of his POAs or lawyers had ever really read his last BVA denial - and that held the key to everything.

I cannot spend that time anymore on one to one stuff...and am in the midst of preparing a presentation to my church tomorrow-which I have worked on for over 2 weeks already. After that the farm, garden and home maintenance can take up considerable time as well.

So my point is that we know our VA issues better than anyone else does ( at least we should have a good handle on them, to include our medical records as well, and SMRs etc.)

I know it is not easy for many here to understand the regulations, and all the VA0LA crapola, but once they get it -and they only need to focus solely on their claim- ( Vet reps and lawyer have plenty of claims) they can

hopefully SUCCEED!