Anyone Know the CAVC case, cite?

[propp3]

A few years back read a CAVC cite that in effect said 'RO can't ignore request by C&P examiner for a test, diagnostics, they deem necessary'. Stupid me, I didn't write it down or if I did, I can't locate it now when I need it. Been googlin' but Google produces way too many hits to wade thru. Then I found this at the BVA appeals search page:

“The Board notes that the Court of Veterans Appeals(COVA) has indicated that the VA cannot ignore requests for diagnostic studies suggested by its own physicians”

The BVA docket # is 91-37 953, and I believe the year is 1995, that the Board remanded it back to the RO using the language above. So I'm not nuts...the BVA was referring to a CAVC(COVA back then) opinion.

I just can't find that COVA case cite. Anyone have an idea?

I'd like to use it in a CUE argument that'll probably get to the BVA sometime next year, late 2019 if I'm lucky, and I'm condensing/clarifying and adding clarity in preparation.

Thanks

[Berta]

https://www.va.gov/vetapp95/files3/9510088.txt

That is the decision by the BVA, but NO citation at all------I googled the phrase and BVA used that phrase in many older cases. No citation at all-

What is the date of the claim you are appealing?

There must be something at the CAVC (formerly COVA) that would help you.

Prior to the  enhanced DTA regs, and the VCAA, VA deemed many claims  as "not well grounded."

But still the VA had to respect the regulations and COVA decisions at that time----

 

 

[broncovet]

Good question.  When you search CAVC cases, often you get hundreds.  

Your CUE "may" be Berta's favorite, a violation of 4.6.  

The Board must weigh the evidence, they can not "ignore" probative evidence, and I concur that, if your doc said additional tests are needed, then the board's failure to address this, is error.  

However, the Board CAN say something like:

"While the Veterans physicain stated further tests are needed, the Board finds these tests would not be a factor, as they are not a part of the rating criteria..etc..etc" . 

In other words, the Board can and does make judgement calls, but they must give a reason why they made that determination, in light of (contrary) evidence.  In most cases, there is evidence that weighs "in favor" of the Veteran, and there is also evidence against the Vet.  If that evidence is "in equipose", then the BOD should accrue to the Vet.  

Maybe Alex can chime in here, he has read thousands of CAVC cases and he may recall the same.  

Do remember that "CUE" is mostly about the effective date, and should not replace a "regular" appeal.  Cue wont award benefits that you didnt qualify for..but if VA later decided you DID qualify for those benefits, then the question is "when" you qualified for these benefits, that is, one of effective dates.  

If you dispute a decision, the normal method is to file a timely appeal..even "if" the error meets the "cue standard of review".  

If you meet the CUE standard of review, then you can always meet the "lower" appeal standard, which means the Veteran is given the benefit of the doubt.  

I suggest you dont "surrender" your right of benefit of the doubt, unless there is no other way.  This suggest you appeal, when possible, however, if the appeal period has passed, then the only way may be through a revision due to CUE> . 

 

Edited December 31, 2018 by broncovet

[propp3]

yes...using 4.6, colvin(1991?), etc.

exam year was 1995 and this bva docket quote was also 1995.

the examiner stated he could not conclusively state the etiology without an mri, then that he would not order until he received instructions from the RO.

no mri was ever done.

so Id like to back this fact up as well with a case cite...but cant find the cova case, only the bva wording.

i guess i'll have to go year by year thru the cova decisions up to 94, 95

[propp3]

yes Bertha...

I googled the phrase so often and so many variations but get tens of thousands of hits. tried cavc search too but yields no specifics.

is quoting the bva vlj sufficient in absence of an actual case cite?

[Berta]

"is quoting the bva vlj sufficient in absence of an actual case cite?"

I would say Yes But ****

I have done that- because the BVA made a legal statement in a past decision I had there- maybe around 1995-96? -but rendered the appeal Moot because I had won that claim at the VARO level and never withdrew the appeal.

The BVA ,however, specifically stated that, if I succeeded at any point, on a direct SC death , my FTCA offset from my 1151 DIC would have to be refunded, in their decision.

When I won direct SC death in 2009-I sent the VARO the entire older BVA  decision, highlighting what the BVA stated to me.They gave no citation but when BVA makes a legal statement, it should have merit.

***But My VARO instead ignored the BVA case, so I had to call the OGC and they ordered the RO to pay me.

When I think back , (I have filed many CUEs) but I could have filed CUE many more times , such as on this issue, under 38 CFR 4.6, which is what you or anyone could use, if the VA ignores probative evidence that they have.

I would send them the shortest BVA decision, highlighting that statement and then copy the hyperlinks to a few of the  the many BVA decisions that also hold that statement.

I might lose power today- we did last night- high winds that affect my PC and electric----but I will go over your past posts as well; as Broncovet raised Stegall- here :

and there might be other ways to develop a CUE claim.

https://community.hadit.com/topic/56384-bva-remand-to-ro-was-it-ignored-does-it-make-any-difference/?sortby=date

 

[propp3]

The United States Court of 
Veterans Appeals (hereinafter "the Court") held that VA's 
failure to conduct further evaluations and studies as 
recommended by VA's own examiner constitutes a breach of its 
statutory duty to assist the veteran as provided for by the provisions of 38 U.S.C.A. § 5107(a) (West 1991).  Hyder v. Derwinski, 1 Vet.App. 221 (1991).  See also Green v. 
Derwinski, 1 Vet.App. 121 (1991)

Think I found the case...see snippet above. I think Hyder v. was the CAVC case I'd read and lost track of but gonna read both.