Petition for extraordinary

[Mr cue]

Ok I got the court to have the va give a response to the petition.

?

Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)

Might also look at:
Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. at 1322.”

So i take this to mean after a cavc remand the bva isn't to remand to ro for a second development.

Am I reading this wrong.

 

[Mr cue]

O]nce the Board has jurisdiction over a claim, . . . it has the authority to address all issues related to that claim, even those not previously decided by the RO.” Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006) (en banc). 
 

Some might think I am crazy but I feel what I am read by these decision.

A cavc remand is not to be used to develop the claim again.

The board has been even volating law by remand them to ro after the cavc remand them to bva were they have jurdation.

I am just getting my response together lol 

I feel real good about this petition.

I am going to post the court order for the petition.

 

[Mr cue]

Before BARTLEY, Chief Judge. O R D E R Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. On July 6, 2021, self-represented veteran filed a petition for extraordinary relief in the nature of a writ of mandamus. Mr. asserts that a writ of mandamus is necessary to compel VA to take action on his claims remanded by the Court in January 2021. Petition at 1; see v. McDonough, No. 2021 WL 485865 (Jan. 29, 2021). According to Mr. , VA has refused to take jurisdiction of the remanded matters or has improperly bifurcated the remanded claims by assigning a new docket number to a portion of them, so that they are not being treated expeditiously. Mr. further states that he was told that a Board decision issued and that he has until August 31, 2021, to appeal to this Court, but that he has never received a copy of that decision. In order to address Mr. assertions, the Court requires additional information from the Secretary. See U.S. VET. APP. R. 21(d). Upon consideration of the foregoing, it is ORDERED that the Secretary, within 30 days after the date of this order, file a response to the petition, addressing the specific allegations contained therein and providing any documentation pertinent to the Court's resolution of this matter. DATED: July 13, 2021 B

[broncovet]

What the case you cited means is the VA cant "develop to deny".  One example of this.  

Lets say you have a good nexus already in your file.  So, the VA sends you to a c and p exam, in the likely event this c and p examiner will opine that your condition is not related to service.  

This is called "develop to deny", and VA is not supposed to do that.  Dont misitnerpret Mariano.  

YOUR interpretation is not correct.  You see, its possible or likely, you did not have all caluza elements the first time.  

So, you get an IMO, but the doctor does not do a great job with the imo, so VA denies again.  

It can take 2,3, or a half dozen times to get it right.  EACH IMO doc may or may not fully understand what VA wants to get a nexus correct, for example.  So, more development may be needed.  

Just because rating specialist number one made an error, does not mean rating specialist number 2 will correct that error.  He may not correct it, or he may correct it and get something else wrong.  

[broncovet]

What Judge Bartley is doing is requiring VA to respond to your complaint.  Yes, this is good.  

A good judge wants to hear "both sides" of the story, not "just" your side.  Now, the VA is given an opportunity to "tell their side", in writing.  

There is always 2 sides to every story, and VA is given a chance to tell their side, rather than the judge making a decision based only on your side.  

The judge can dismiss your writ, however, "without" the VA answering your complaint "if" the judge thinks there is no chance your writ has merit.  

EXAMPLE:  Lets say you filed a writ complaining of a remand, but there was no record of any remand.  Well, your writ could be dismissed as without merit, as there is no record of any remand.   You could also make an "outrageous" claim, that the judge thinks can not be substantiated.  

Example 2:  I file a writ, claiming the VA owes me $10,000,000 dollars because a VA employee said on the phone something you considered rude, but you have zero evidence that you ever even called VA.  That could be dismissed as outrageous.  

[Mr cue]

What I am speaking on is if the cavc remand your cases.

Let say for effective dates the bva has jurdation to rule on them.

And not to remand them to develop over again.

This is a lot bigger than that but.

If my case had no merit it would of been dismissed with no response.

I am just put this out there for veterans in the hamster wheel.

[broncovet]

Congratulations:  Your writ is "moving forward".  Now the VA will "answer" your complaint and the judge will decide who is right.  

You will likely have a chance to respond AGAIN, if you dispute VA's answer.  

That is what I did, in my writ I filed in 2008.    I responded that VA statements inaccuratly stated the facts, and provided evidence of same.  

While the judge denied my writ, not long after that, low and behold, I got a VA letter awarding 100 percent.  I had alleged the VARO "mishandled my evidence". (aka "shredded") and provided documents that were not in my file, but should have been.  

Edited July 15, 2021 by broncovet