Recent Supreme Court Amicus Brief

[Waitingtoolongdave]

So much for the VA trying to "assist" and to be "non-adversarial."

"David Shulkin, the former VA secretary, candidly acknowledged that the system as it currently functions is “adversarial.” Krause, Veterans Affairs Secretary Admits VA Is ‘Adversarial’ For Veterans (Nov. 8, 2017)."

"In 2020 (the most recent year for which statistics are available), the CAVC ruled for the veteran in more than 90% of cases decided on the merits. See U.S. Court of Appeals for Veterans Claims Annual Report at 3 (2020).12 This means that BVA denials of benefits are erroneous in nine out of every ten cases. Even worse, claimants were awarded Equal Access to Justice fees in nearly 80% of appeals. See U.S. Court of Appeals for Veterans Claims Annual Report at 4.13 EAJA fees are available only if a court finds that the government’s position is not “substantially justified.”

https://www.supremecourt.gov/DocketPDF/21/21-234/217825/20220307111705611_21-234 Amicus Brief of Military-Veterans Advocacy and Legal Aid Foundation of LA.pdf

 

[Carl the Engineer]

"This means that, in litigating with veterans, the government takes a position that is substantially unjustified over threequarters of the time."

"All the evidence points towards the VA’s propensity for error as not a bug, but rather, an inherent feature of the disability-benefits system.  Because the system is designed for veterans to go it alone—and because they often lack the knowledge and experience necessary to navigate through the claims process—the VA is often unchallenged in its decision-making. The result is that the VA is effectively allowed to ignore or misapply its own rules and regulations."

In plain speak, "Anti-Veteran"

Just sayin,

Carl

Edited May 19, 2022 by Carl Bacon
cause I can

[Vync]

I liked this part:

Quote

The Federal Circuit’s decision is emblematic of the problems that plague the VA disability-benefits system. As one scholar wrote, “[t]he problem with the non-adversarial process is that the VA often ignores or misapplies its regulations. When this happens, veterans have limited remedies to challenge VA errors.” McClean, supra, at 280. CUE—one of the few remedies veterans have at their disposal—is thus a critical check on the VA. Regardless of how long an error that wrongfully denies often-vital benefits may persist, a veteran may eventually hold the VA accountable and obtain some semblance of justice. The Federal Circuit’s decision to limit the scope of CUE not only prevents justice for veterans whose claims were denied under an unlawful regulation, but also the countless veterans who filed disability claims but were incorrectly denied and may be discouraged from filing again.

The issue of incorrect denials is compounded with CUE. After claims are final, veterans cannot challenge a bad exam with a proper reading of an exam at a later date. Yes, they can get SC, but the effective date will not be the original claim date. Nothing quite like having a VA examiner state no disability was found despite the measured ROM fell within the 10% or higher criteria ranges...

 

[broncovet]

Correct.  The so called "pro Veteran, claimant friendly" VA is a ruse to dupe Vets into believing the VA "is there to help them".  

Otherwise, why on earth would you put your opponent at law "in charge" of all the documents, permitting them to discard any documents which are Veteran favorable?  

An incredible number of Veteran favorable documents have mysteriously disappeared from the Veterans file (that VA controls).  

[Vync]

@broncovetYes indeed. In 1995 when I left the service, I was told to trust my state VA rep because they were ex-military and experts in VA claims. I often look back to that single sentence VA claim they typed up for me and reminisced asking them, "What if they miss something? I can document everything to make it easy for them." I was told, "The VA employees are mostly ex-military and their job is to help take care of us veterans. It's their job to go through every page of your records and connect the dots." What you said about documents mysteriously disappearing helped result in my initial denial supposedly because my service treatment records were silent on every claimed condition. Later, I learned they made the decision based on an empty c-file. After Xeroxing all my treatment records and submitting them, they acknowledged receipt, but still denied of shaky grounds. The BVA rep was quite surprised when he learned I was not even afforded a C&P exam, so he remanded to the VARO and the C&P failed examiner to follow their instructions. Fun stuff!

[Carl the Engineer]

Because most of my claims were strait forward and I never had a previous appeal, I never totally believed you guy's until I became 100% P&T.  

I told my VSO that I was going to appeal a denied part of the claim and she said, "Don't rock the boat, you got 100"

So it does permeate the whole organization, top to bottom.

Veteran's are on their own,

Carl

 

[Dustoff1970]

A recent QTC examiner told me my C-File was 6000 pages.  In order to insure the VARO and BVA plus CAVC court had copies of my Army, VA and private favorable medical records, other evidence I often sent them important duplicate copies by certified mail with my claim or appeal and with any statement in support of claim or other correspondence.  Sometime in 98 or 2000 VARO returned many copies to me marked with a red D (duplicate) and ask me not to send any more.

My repetitive overkill and throw everything against the wall has worked extremely well for me for over 30 years.   I not concerned with being popular with VA adjudicators.