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Ken Dillon

Question

When a claim is denied and you disagree with the results, as you do your research, is it a good idea and how much pull when you find BVA cases like yours, and the cases side with what you have stated to include them in your disagreement?

 

Thanks Ken

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BVA cases only affect the case at hand, they do not set precedents. They are great reference for planning strategy, or for seeing 'what' types of things can be claimed and how it was claimed, what regs apply, etc. CAVC claims set precedent and can be cited, but unless your lawyer brings up a BVA case to cite I don't think it is useful as citable evidence. 

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Like he said I do not cite BVA cases but I do use the same wording and their reasoning and analysis (word for word) they have used to grant appeals similar to mine and with great success in last 3 years achieving 50% for OSA due to PTSD and increase of IHD/CAD heart disease from 30 to 60% that also resulted in SMC-S and over 3 years back pay for SMC-S.  I also did this in recent approved VARO claims (last year) for GERD at 60% and Tinnitus at 10%.  No appeals or NODs  necessary for these two. 

Of course I had solid medical evidence to support the above that included two private fee doctor's IMO to support my appeals and BVA gave great weight to his opinions in the appeals.

I used this same technique many years ago in successful claims for a 1998 TDIU, P&T and of course PTSD increase with no appeal necessary for TDIU.

Same goes for a 2000 CUE Claim that I had to appeal all the way to the U.S. CAVC where the court agreed the Waco VARO prior to 98 failed to adjudicate me for a TDIU Claim.  In all the above I did cite Fed Appeals Circuit court and CAVC court 3 judge precedent opinions that I believed would help my claims and appeals.  Since 1985 I have done all this myself pro se without use of VSO or BVA hearings.  Your mileage may vary.  Good luck.

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

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Edited by Dustoff1970
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Dustoff1970

I do all the above with BVA cases and claims I file. I use the BVA and CAVA langue of winning cases in my filings. It has worked in most all my cases.

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Its great you are doing your homework.  I never cease to be amazed at how "people who practice the 5 p's" do better than those who dont.  (5P's...Proper Preparation Prevents Poor Performance). Allow me to clarify:

Not ALL CAVC cases set a precedent, but no BVA cases set precedent.  The only precedential CAVC cases are "panel" and "En Banc".  Panel and En banc cases use multile judges (panel) or ALL the judges (En Banc).  A "single judge decision" at CAVC is not precedential.  

Its a great idea to read BVA cases, which often cite precedential cavc case law in their decision.  You, too, can cite those precedential cases cited by the BVA in other claims similar to yours.  

Therefore, my recommendation is to read BVA case law, but cite the precedent citing cases suggested by the BVA., as explained above.   I dont cite BVA case law as precedent, I dont want to give VA "an excuse to deny" such as "well that was a BVA case and it was non precedent."  

Instead, I cite the cases the BVA cites..precedent setting cases.  

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