Board of Veteran Appeals and "double jeopardy"

[Atlcocky]

Hello all,

My claim for EFD was denied at the BVA level and then appeal to the CAVC. The CAVC, under a joint motion, remanded it back to the BVA. The BVA then denied again for a reason that was not in the file and something that we have not seen before. (I will upload the BVA denial letter tomorrow.)

So, the question is can the BVA deny, deny, deny and then when the file comes back on remand, deny for a completely different reason than what they were ask to look at on the remand? By the way, the reason for the latest denial ahs NEVER been mentioned before.

 

Thank you.

[Dustoff1970]

Also in 2003 Judge Harold Greene of the CAVC agreed with my 4th CUE contention that the VARO and BVA failed to adjudicate me for a TDIU claim between 95 and 98 and "ordered" VARO to adjudicate me for the TDIU in his remand instructions.  He did say this was a due process error and not CUE. Prior to his favorable decision for me the VARO did award me this backdated TDIU due to other actions I had taken including contacting many U.S. senators and congressmen in many states and filing other claims.  So even denying CUE the CAVC still gave me a win.  So it pays to file CUE claims sometimes as you may win in a different way before the court.  I did this myself pro se. Good luck to you.  The case was not filed under my name due to sensitive personal info in the appeal and at my request. 

My comment not legal advice as I am not a lawyer, paralegal or VSO.

Edited August 8, 2022 by Dustoff 11

[Mr cue]

6 hours ago, Mr cue said:

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.”

Many don't fight the bva and ro on this.

A cavc remand isn't a do over they have to address what is already in the record.

This is percendent.

 

[broncovet]

You posted:

Quote

A cavc remand isn't a do over they have to address what is already in the record.

Not exactly.  The Veteran is permitted to submit "new and relevant evidence" which is "NOT" in the record, to improve the outcome of his case, in a remand.  See 38 CFR 3.156.  

After a remand, the board is required to follow the CAVC's instructions for remand, which may or may not be to address "what is already" in the record.  

Remand instructions to the board "does not necessarily" address what is already in the record, but, rather, to comply with the CAVC instructions.  Again, the Veteran is given an opportunity "to add evidence" to the record, if the Veteran so chooses to do so, such as an IMO/IME, or other evidence to support the Veterans position.  

[Atlcocky]

So Bronco,

There was nothing new added. It was the same file they had before the remand. Their response to the remand was a denial for some completely different reason. 

[broncovet]

Unfortunately, that is why they call it a hamster wheel.  You get denied, you appeal, you get a remand, BVA denies for a different reason, you appeal again, etc. etc.

This is exactly why many attorneys recommend an IMO/IME.  Remember, the Board rarely helps you to find out "the REAL Reason" for denial.  The board looks to see if you meet the Caluza elements.  If your nexus is inadequate, they often dont tell you that.  

This said, Im not sure what a "claim for EFD" is.  Frankly, I never heard of it.  If you mean a claim for EED (earlier effective date), Im unaware of a stand alone earlier effective date claim.  Instead, the procedure is to file an appeal to a previous decision's effective date if you dispute it.  Its possible this is the problem, but you would need to post reasons and bases for decision to know.  And, even then we may not know until/unless the file was reviewed.  

There are many many posts on effective dates, and you could consider reviewing those, Im not reposting that again.  

 

[Mr cue]

19 hours ago, broncovet said:

Not exactly.  The Veteran is permitted to submit "new and relevant evidence" which is "NOT" in the record, to improve the outcome of his case, in a remand.  See 38 CFR 3.156

Does a court remand say the bva VA can present new evidence after a cavc remand no.

 

On 8/8/2022 at 2:35 PM, Mr cue said:

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

These are court precedent stating this.

Now the only? Is the bva follow the law by ordering new exams after a cavc remand. An I say no.

We all understand a veteran can present new evidence after a court remand.

No where on the court remand does it say the bva can present new evidence.

Just the way I see it an one of reason that there is a hamster wheel.

Because they are volating the law.