BVA LOSS/HEADED TO THE CAVC

[ShrekTheTank]

I felt the need to post this as I have felt very beat down from the BVA after my loss.  I tried to read the entire things, but I just could not get into it.  Anyways I got a letter yesterday from the VFW about Bergmann and Moore wanting to take my PTSD case.  

I was very supprised to hear this as I had already been to the BVA 3 times and the CAVC once.  Looks like we are headed back for round two.

After talking to the lawyer this morning they are very confident they are going to get an earlier EED and a higher rating as the BVA disregarded evidence that had been submited.  

I am reendergized again and ready for a new fight!  

Keep in the fight everyone!

[ShrekTheTank]

1 hour ago, blahsaysme2u said:

hey man im rooting for you! im sorry things have been going poorly but keep your head up...dont stress..
setbacks happen- but giving up - thats 100% lost

"you miss 100% of the shots you don't take" -wayne gretzky

-Michael Scott

Thanks for the support.  I just got down cause they sent like a 5 page reasoning of why they denied me.  I almost gave up.

[ShrekTheTank]

6 minutes ago, broncovet said:

You probably know this, but (I got your back, just in case):

CAVC appeals pretty much always are paid by EAJA, not the Veteran.  This is huge, and can save you Thousands in attorney fees.  When/if an attorney "wins" a remand from the CAVC, then the attorney needs to turn his/her hours into CAVC to apply for EAJA fees.  (You want to insist on this..no sense paying fees, when EAJA will)

Now, here is my senario, which may well apply to you:

   I appealed (pro se) at the BVA and lost.  So, Hired an attorney to represent me at the CAVC.  (I did this twice on different issues)

   At the CAVC my attorney "won" (Chris Attig) a remand.  Chris told me "he does not do law at the BVA", and did not/would not represent me (upon the remand) at the BVA. (I WON AT THE BVA)   Attorney fees..EAJA paid 100 percent.  Chris said I needed an IMO from a Voc rehab specialist, and I did so, and that I could represent myself (or use VSO).  Since EAJA paid the fees at the cavc, and, since I went pro se at the board (upon remand), I owed nothing for fees.  

    On a different "trip" to the CAVC, it went a bit differently.  Again, denied by BVA, and hired another attorney, Julie Glover at Glover Luck.  Again, my attorney won a remand to the BVA.  This time, however, Ms. Glover represented me at the BVA, and I won at the BVA.  THE ATTORNEY FEES,  however, came out a little differently.  The attorney, after remand

from CAVC applied for and got EAJA fees.  BUT she also represented me at the BVA.  (EAJA does not cover BVA attorney fees, these are generally covered by the Veteran).  

    Also, the attorney "can not" collect from both the Veteran "and" double dip and collect also from EAJA.  So, I had signed a 20 percent fee agreement.  The amount paid "from EAJA" was deducted from my 20 percent fee.  In this case I wound up paying about $1000, which was the 20 percent minus EAJA fees already paid.  

    Its a good idea to discuss with your attorney:

1.  The attorney needs to collect EAJA fees with the CAVC remand win.  

2.  Will the attorney continue to represent you at the Board, after a remand, or do you plan or pro se?  

      You dont want to get crossways from the attorney, so get and understanding before so you know what to expect.  

As always, just my opinion, but I like the idea of saving you thousands by addressing this.  

Thanks Bronco,

This is very good information and good to remember as it has been years since I have been here.  I do need to decide if they will represent me at the BVA as this could be a large win if it happened.  

[ShrekTheTank]

yes they do and I really hope they lay it out so I can get the win.  This claim is from 2013, so much fun.  LOL

Edited April 19, 2023 by shrekthetank1

[pacmanx1]

2 hours ago, shrekthetank1 said:

Bergmann and Moore

Please don't quote me and make sure you check with them. Bergmann and Moore has a separate firm at the BVA and after winning a joint remand this separate firm may write a final rebuttal free of charge to assist your win at the BVA.  But wait until you get your joint remand.

[Guest]

@pacmanx1 Sorry about that I did remove it.

That is good to know!  Thank you!

[broncovet]

Chris Attig (Attorney) was pretty adamant:  (I could/did represent myself at the BVA with this CAVC remand to the board). 

I have heard it called the "cookie cutter win".  

The cookie recipe pretty much goes like this:

1.  Apply for benefits at the VARO.  Denied.  (Surprise surprise) 

2.  Appeal to the BVA.  Denied again.  

3.  Appeal denial to the CAVC, this is often done on a "technicality", such as an "inadequate reasons and bases for decision".  (After getting an attorney) 

4.  Your attorney gets a remand such as give an inadequate reasons and bases.  

      You see, VA often hides the real reason for denial.  This is on purpose.  If you know the real reasons for denial, you can go fix it.   Its like a diagnostic on your car, once you know what part(s) is haywire, you can then fix it.  Example:  Inadequate nexus, because the doctor did not submit his CV, so VA could not tell if he was competent.  

      So, the denial may read:  "There is no competent evidence that the condition was caused in service".   What it should say is "the doctor" did not provide "proof of competence", that is, he is an expert in the field.  You look and there is the doc's opinion.  You know he is a good doc, and did a good job with your IMO/nexus.  But, it wasnt good enough for VA, because, without his CV, the VA could not PROVE he was an "expert witness".  An expert witness has to demonstrate he is competent and qualified to render a medical opinion good enough to get you SC.  

     So, you thoroughly review each medical exam, and, you will usually find it:  No proof of medical competency for your IMO.  Solution:  Get a new IMO, send it to the BVA and win.  

      This is the "cookie cutter" solution.  (Chocolate chip variation).  There are others, Oatmeal (The doctor provided a nexus but did not give a medical rationale as to why he gave said opinion, that your condition was at least as likely as not related to medical service.  Macadamia nut cookies:   The doc messed up the nexus, and stated "Its possible that your condition is related to service".  .honk, honk..wrong.  It has to be at least as likely as not.  May, maybe, could be might be are all speculative.  

      The only way to find out "which cookie" is to read your medical file especially the nexus statments.  Then, get baking cookies.  

Edited April 19, 2023 by broncovet