How is my NEXUS LETTER

[pctinc2001]

Please read and give me feedback please. Recently attended a BVA hearing, and she gave me some time to get my evidence for my sleep apnea claim. My Neurologist wrote me a medical opinion.

IMO Final.pdf Drs CV.pdf

[Lemuel]

The BVA is the sole decider of FACT.  You cannot appeal a fact to the CAVC that has been decided by the BVA.  Facts are not the jurisdiction of the Appeal Courts.  The only way you can appeal a fact to the Appeals courts is to say the decision of fact was arbitrary and capricious.  That is a heavy burden of proof.  This I have discovered in my adjudications and appeals since 1985 and research of primarily CAFC decisions on appeals of Veterans of CAVC Decisions.  CAVC decisions are easy to find on the CAVC website.  I use FASTCASE to research and have subscribed to the CAFC newsletter on CAFC Decisions since 2003.

State it as fact and provide your evidence.  Place the burden on the burden on the BVA Judge of drawing evidence from the file that will support a "less likely than not" decision of fact.  A "more likely than not" becomes a fact for the veteran.

In my own appeal to the BVA brief, I did not list any fact statement as the waffling, "more likely than not".

My statement of facts begins on page 8 of my brief attached.

I cannot give you a final outcome yet because the BVA has not decided.  This is an appeal of the decisions in remand as well as errors of previous decisions that include multiple copying of bad decisions.

As soon as I get a Decision, I will post it to all of the threads I have posted my Brief.

20220418 Finale brief to BVA.pdf

[63Charlie]

 

On 6/30/2022 at 12:32 PM, Lemuel said:

The only way you can appeal a fact to the Appeals courts is to say the decision of fact was arbitrary and capricious. 

 

 

Isn't it odd that not a single one of my victories at the CAVC mention anything about those BVA decisions being arbitrary and capricious?

If my memory serves me, I think my legal eagles won because the BVA erred in the reasons and bases requirement part of their decisions.

Edited July 2, 2022 by 63Charlie

[Lemuel]

2 minutes ago, 63Charlie said:

 

Isn't it rather strange that not one of my victories at the CAVC fail to mention anything about any of my BVA decisions being arbitrary and capricious?

Case numbers please:  All of the cases I have reviewed, the court denied on the basis the BVA was the sole decider of fact. 

If your appeal challenged the facts as opposed to the application of law or law to facts without arguing the BVA stated facts were erroneous, AKA the jurisdiction of the appeals court as arbitrary and capricious.

In your cases the "statement of jurisdiction" should point out the reason the court was accepting your case under its jurisdiction by law.

I quit adding pro se cases where facts were alleged to be in error and dismissed for lack of jurisdiction.  Attorneys will not take cases where there is an allegation of error in the facts.  Been there and done that.  Also have my own pro se cases that were denied.  

That is why I made a brief to the BVA stating the FACTS as I see them this time up.  Will let you know how it works out on this space.

[63Charlie]

Good luck with your appeals, Lemuel.

The VA is tough.

 

[Rattler]

On 7/1/2022 at 8:51 PM, Lemuel said:

Case numbers please:  All of the cases I have reviewed, the court denied on the basis the BVA was the sole decider of fact. 

If your appeal challenged the facts as opposed to the application of law or law to facts without arguing the BVA stated facts were erroneous, AKA the jurisdiction of the appeals court as arbitrary and capricious.

In your cases the "statement of jurisdiction" should point out the reason the court was accepting your case under its jurisdiction by law.

I quit adding pro se cases where facts were alleged to be in error and dismissed for lack of jurisdiction.  Attorneys will not take cases where there is an allegation of error in the facts.  Been there and done that.  Also have my own pro se cases that were denied.  

That is why I made a brief to the BVA stating the FACTS as I see them this time up.  Will let you know how it works out on this space.

Lamuel I think you got it mostly right. I think you are getting stuck on the "arbitrary and capricious.."  From What you described above you would get dismissed for lack of jurisdiction or lack of subject matter jurisdiction. What this means is the court has to have "jurisdiction" In some form to hear the case. An example of this is you take someone to court in a different county than the one where what you are suing for is in.

Black's Law Dictionary defines “arbitrary and capricious” as “[a] willful and unreasonable action without consideration or in disregard of facts or law.” Admittedly, this is a tough burden for the challenger.

 

What makes a decision arbitrary and capricious?

 

When a judge makes a decision without reasonable grounds or adequate consideration of the circumstances, it is said to be arbitrary and capricious and can be invalidated by an appellate court on that ground. In other words there should be absence of a rational connection between the facts found and the choice made.

What is the arbitrary or capricious test?

 

The arbitrary-or-capricious test is a short-hand term for the scope-of-judicial-review provision in section 706(2)(A) of the APA directing reviewing courts to invalidate agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

5 U.S. Code § 706 - Scope of review

• U.S. Code
• Notes

 

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1)

compel agency action unlawfully withheld or unreasonably delayed; and

(2)hold unlawful and set aside agency action, findings, and conclusions found to be—

(A)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B)

contrary to constitutional right, power, privilege, or immunity;

(C)

in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D)

without observance of procedure required by law;

(E)

unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F)

unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)

 

 

[Lemuel]

12 hours ago, Rattler767 said:

Lamuel I think you got it mostly right. I think you are getting stuck on the "arbitrary and capricious.."  From What you described above you would get dismissed for lack of jurisdiction or lack of subject matter jurisdiction. What this means is the court has to have "jurisdiction" In some form to hear the case. An example of this is you take someone to court in a different county than the one where what you are suing for is in.

Black's Law Dictionary defines “arbitrary and capricious” as “[a] willful and unreasonable action without consideration or in disregard of facts or law.” Admittedly, this is a tough burden for the challenger.

 

What makes a decision arbitrary and capricious?

 

When a judge makes a decision without reasonable grounds or adequate consideration of the circumstances, it is said to be arbitrary and capricious and can be invalidated by an appellate court on that ground. In other words there should be absence of a rational connection between the facts found and the choice made.

What is the arbitrary or capricious test?

 

The arbitrary-or-capricious test is a short-hand term for the scope-of-judicial-review provision in section 706(2)(A) of the APA directing reviewing courts to invalidate agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

5 U.S. Code § 706 - Scope of review

• U.S. Code
• Notes

 

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1)

compel agency action unlawfully withheld or unreasonably delayed; and

(2)hold unlawful and set aside agency action, findings, and conclusions found to be—

(A)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B)

contrary to constitutional right, power, privilege, or immunity;

(C)

in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D)

without observance of procedure required by law;

(E)

unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F)

unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393.)

 

 

Thanks for pulling out Black's Law.  Yes, both the CAVC and CAFC appeals courts for veterans deny most pro se claims for lack of jurisdiction to review facts.  Mostly because the argument of factual error is not specifically stated as one of those listed in Black's Law in framing the alleged error.