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Appealing start date


Wanderer

Question

I think I'm about ready to work on my 23 year back pay. They tell me they have everything for a decision for my sleep apnea/TDIU claim except for my SSDI medical evidence. I'll do that tomorrow. They told me it'll be 2-6 weeks.

As I submit for my C file, I'm wondering if there's an advantage of submitting a CUE saying the C&P examiner reported that my bipolar started during active duty and I submitted a bipolar claim 23 years ago (which awarded me a 70% rating), please pay me my back pay. I mean, if there's a 5% chance it will work it is worth it, isn't it? Am I missing something?

Edited by Wanderer
To fix 2nd paragraph (see edit history)
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You got a shot, but if you want to make sure you get a bulls eye, then I suggest you hire an attorney.  Reason:

GS7's or even GS9's dont have the authority to sign a document where you get 100k plus in retro.  

That will need to be done by a judge..either BVA or CAVC.  Have the attorney review your file.  

You "may" be able to pry this open via 38 cfr 3.156 c, new and material evidence, but I still think most of the Vets who have gotten six figure retros had an attorney.  

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I agree with Broncovet to get a lawyer.  And if you do get a good one, not a local guy that has never performed at the BVA before.  There is a association that lawyers arguing cases before the BVA should belong to.  Someone else will chime in with the name, sorry I do not remember, I forget names.  

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I understand your reasoning but I don't want to give up 33% of the lump sum. That could be over $100 grand. I know my shaky cognitive abilities has me asking many questions. But I'm good at this stuff, I have won a settlement previously without a lawyer.

Could I hire an attorney or legal expert who could assist while I still handle the tasks?

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"If there is a 5% chance it will work, it is worth it, isn't it?" IMO, no. This is going back over 20 years; very long time by anyone's standards. Let me ask you a question; what is more important to you: being able to say you did it yourself and got this big settlement. Or, winning the settlement and finally getting the satisfaction that because of your efforts, your legal team finally prevailed and won? Because you aren't one of "the old boys"; the odds are just not in favor of a good outcome without legal representation. I ask veterans in this potential situation "would you rather have 100% of nothing, or 70% of something? Don't let your ego get in your way of making the smart choice.

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I agree with  broncovet  ventquest and GB Army

all make good points .

 You need to ask yourself do you want to stay in Appeals for years or git her done?

Hire a Good Experience proven Law Dog and get your due benefits ASAP.

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I agree with  broncovet  ventquest and GB Army

all make good points .

 You need to ask yourself do you want to stay in Appeals for years or git her done?

Hire a Good Experience proven Law Dog and get your due benefits ASAP.

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Here is the link to what Vetquest recommended.

its called NOVA   (National Organization of Veterans Advocates) 

https://www.vetadvocates.org/cpages/home

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Wanderer quoted

I'm wondering if there's an advantage of submitting a CUE saying the C&P examiner reported that my bipolar started during active duty and I submitted a bipolar claim 23 years ago (which awarded me a 70% rating), please pay me my back pay. I mean, if

if is the  BIG word here and this is a good question to ask an experienced Attorney after he/she reads your files.

 

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I would certainly think about hiring  VA Experienced & Accredited Certified Claims Agent  Alex Graham 

He is one of the Best there is in this Business. (imo)

Although he is busy but maybe worth your time to ask him for help.

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36 minutes ago, Buck52 said:

I agree with  broncovet  ventquest and GB Army

all make good points .

 You need to ask yourself do you want to stay in Appeals for years or git her done?

Hire a Good Experience proven Law Dog and get your due benefits ASAP.

I agree with them also.  With that kind of back pay on the line I would want a far better chance than 5%.  I would rather have a very high percentage to get it right the first time!  You do not want to spend the next 10-15 years trying to figure it out!  

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I also agree with everyone above. Also keep in mind an attorney won't take your case if they don't think they will win (plus they won't charge you if they don't). I don't know how much you will get if you win, but as what was said above 70% is better than nothing (if you are entitled to $100,000 you still get $70,000). I am almost positive everyone on this site would love to win $70,000 (I know I would).

Give it some serious thought before you decide to go it alone. No matter which way you go good luck!!!

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Let me explain.  First, Vets attorney's are limited to what they can charge.  Most charge 20 percent..some charge more, but have to "justify" the extra charges to VA.  

More importantly, IF you hire an attorney Shortly after a BVA denial, then your attorney fees will likely be paid by EAJA at the CAVC level.  

You can represent yourself "up to" the BVA level.  However, you CAN shoot yourself in the foot, and make mistakes that your attorney may not be able to "fix" at the CAVC.  (Example: missing an appeal deadline, failing to file an I9, etc)  

You can win this on your own IF:

1.  You have a computer, online, and are good at internet searches, and can interpret 38 CFR's that apply (or dont apply) to you.  

2.  You are organized, and keep copies of everything you send VA and send it certified mail return receipt requested.  (Reason:  VA LOVES to lose our key evidence).  

3.  You are incredibly persistent, and willing to adhere to all deadlines and follow all VA rules.  One day late, means you lose.  Every time.  

4.  You have some writing skills, and are able to present your case especially the facts that matter and dont drown the VA rep with stuff that is irrelevant.  The VA is famous for "top sheeting" your claim.  This means they read one page and not the rest of the stuff.  So if your relevant evidence is buried in a sea of irrelevant mumbo jumbo, expect a denial, because they rarely read a lengthy claim.  They just deny.  

Now..do this up to a BVA denial.  If you win at the BVA you win.  But, you can check your odds on the BVA chairmans report.  (That is a good test..find it, and you can probably represent yourself).

If you do get a bva denial, then forget self representation, there is no point.  Get a lawyer at cavc and EAJA will pay the fees.  

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Great information above from broncovet   .....>take it!

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if your Unfamiliar with what exactly is EAJA fees???

EAJA stands for the Equal Access to Justice Act, a federal law enacted in 1980 to allow individuals, small businesses, and public interest groups to obtain representation in cases against the federal government and not be held to attorney fees in the event that they are successful. If the group or individual is successful, their attorneys will be paid directly by the federal government for the work they did on the case.

Edited by Buck52 (see edit history)
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EAJA fees (attorney fees) are "regurarly awarded" to Vets who win, or even win a remand, at the CAVC level of appeal.  Many attorney's will accept your case expecting NO money from you, just from EAJA fees.  Of course, they have to think your case is "of merit", or you lose and nobody gets paid.  

In 2017, I got a BVA partial grant partial denial.  In other words the BVA awarded one condition, denied another.  I hired a law firm to appeal the denial to the CAVC.  

Here is how it went down.   The lawyer I hired filed an appeal to the CAVC.  The VA's own attorney's agreed, that a mistake was made and agreed to a "Joint motion for remand".   This means VA concedes there was an error which means my case should be remanded.  

My attorney was awarded EAJA fees by the CAVC of   About 6000.00.  Upon remand, my attorney advised me (and paid up front for) an IMO from a voc rehab specialist.  

After submitting the new evidence, the board agreed and awarded me tdiu with 35000 retro.  20 percent of 35000 is 7000, but eaja had already paid 6000, so I paid just 1000 for winning my claim.  There is no way I would have won this on my own, I could not afford to pay for an IMO up front.  I will spend 1000 to get 35000 any day, and would love to do that again and again and again.  

The only reason I paid ANY money is because I hired the attorney also for the BVA.  EAJA fees only covers costs at the CAVC.  But it was well worth it, and the percentage I actually paid (net of eaja fees) was 2%.  1000/35000, feel free to do the math.  

Oh, and, Im fighting the VA for an earlier effective date.  Guess what I did?  I hired an attorney, and we are at the CAVC now. 

Even tho I have lots of practice with VA with dozens of decisions, and 3 trips to the CAVC, I still hired an attorney.  Why?  The same reason Alex Graham hired an attorney when he won a six figure retro.  Alex knows the law inside and out..better than some attorneys, but he still hired one.  Why?  

Judges are ex attorneys.  So, they dont look highly on someone who files their own claims.  At the CAVC, its no longer non adversarial claimant friendly.  You file an appeal to the CAVC and the VA immediately hires an attorney to fight you.  

A Vet can get away with mistakes, sometimes, at the Ro or BVA, but not the cavc.  You need to know what you are doing at the CAVC.  

Be smart...get an attorney every time you go to the CAVC.  I will.  (possible exception..if I have to do another writ of mandamus).   

 

Edited by broncovet (see edit history)
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A lot to unpack here. Thanks, guys, you've given me lots to consider.

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broncovet you slick dog you.

You never mention you won your claim??...unless its the EED still out on Hung Jury?

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I dont know if I won it.  Its at the CAVC, "with judge".  It could be up to 6 months or could be any day.  

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oh  so this was an earlier claim/ or your waiting on them to get your EED Correct? of this same claim?

''After submitting the new evidence, the board agreed and awarded me tdiu with 35000 retro.  20 percent of 35000 is 7000, but eaja had already paid 6000, so I paid just 1000 for winning my claim.''

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On 4/18/2019 at 11:00 PM, Wanderer said:

I understand your reasoning but I don't want to give up 33% of the lump sum. That could be over $100 grand. I know my shaky cognitive abilities has me asking many questions. But I'm good at this stuff, I have won a settlement previously without a lawyer.

Could I hire an attorney or legal expert who could assist while I still handle the tasks?

It's actually 20%.  That is the fee agreement I have with my Attorney.  If you do find a Trial Attorney and file Writ of Mandamus, then you're looking at a 3rd probably on contingency.  You have to look at it and decide that there was a definite CUE.  As the others have said...Use a Lawyer!  Good luck

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