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These are
just a sampling of cases which affect veterans' rights
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February 3, 2009
In a decision that affects many Navy
veterans, a veteran's claim for service-connected disabilities was
denied because he could not obtain a presumption of exposure to
herbicides in Vietnam. In case number 06-0596, the United States Court
of Appeals for Veterans Claims affirmed that off-shore service in
coastal waters of Vietnam, without setting foot on the soil, does not
give rise to a presumption of exposure to herbicides. This presumption
is one of many where, if proved, makes the veteran's claim for
specific diseases or disabilities exponentially easier to prove, since
the VA is required to presume a service connection for the disability.
In 2006, this same court decided the
opposite - that "blue water" veterans were eligible for this
presumption. However, that decision was recently overturned in the
Court of Appeals for the Federal Circuit on May 8, 2008, in Haas v.
Peake. Hence, this presumption - at least for the present time - is
unavailable for "blue water" veterans.
This demonstrates how veterans law can
flip-flop and change direction without warning. Many websites and
organizations still inform veterans that "blue water" personnel are
eligible for this presumption. This is why you need a competent
attorney to handle your claim. Contact us
to guide your claim through the VA minefield.
October 15, 2008
Underscoring the importance of using a
knowledgeable attorney, a veteran (who appeared pro se, without counsel) filed
an appeal (case number 08-1371) before the United States Court of
Appeals for Veterans Claims was denied on the grounds the court did
not have jurisdiction to hear the appeal. The court did not have
jurisdiction because the appeal was filed before a final decision was
rendered by the Board of Veterans Appeals. The law states that a BVA decision must be final and the person adversely affected by this
decision must file a Notice of Appeal within 120 days of the date the
BVA decision was mailed.
Knowing the ever changing and complex law
is a challenge - but knowing how to apply the individual facts to the
law (i.e. what constitutes a final and adverse decision) is
complicated. Don't let the VA's attorney sink your case because
of technicalities - contact us for
representation.
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July 24, 2008
In a decision that will affect many future
veterans' claims, the court decided (in case number 05-0090) that a
missed deadline for a Notice of Appeal will not be extended because
the veteran was facing troubles that caused the delay. This is known
as "equitable tolling." The court said that it was bound by a ruling
by the U.S. Supreme Court on the matter, and that equitable tolling
could not be invoked to relieve the veteran of his failure to file his
NOA on time. Thus, the veteran's case was dismissed for lack of
jurisdiction.
This creates a harsh environment for
veterans' claims, and evaporates any forgiveness that the court might
otherwise have granted for a missed deadline.
Don't let this happen to you! Once you file
your Notice of Disagreement (filed after you receive a denial or a
lower-than-deserved rating from the Regional Office),
obtain a veterans attorney to represent
your case!
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Don't let the VA beat you up! We will step up
and fight for you!
Photo of SSgt Jake LaForet delivering some
wall-to-wall
counseling to a hapless E2, 2004. |
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MAJOR CHANGES IN THE LAW
Starting
in 2007, a veteran may retain an attorney once the veteran files a
Notice Of Disagreement following an adverse decision by the VA
Regional Office on the veteran's claim. Prior to this change in the
law (and for claims where a Notice of Disagreement was filed before
June 20, 2007), the veteran could only retain an attorney after the
Board of Veterans Appeals issues a final decision on the veteran's
claim. This change in the law only is applicable to veterans who filed
their Notice of Disagreement on or after June 20, 2007.
This change is a positive step forward for veterans rights,
because it protects the veteran's right to choose a professional
attorney at the crucial early stages of the dispute with the VA.
If this law had not been changed, then veterans would be limited to
crafting their appeal themselves, or relying on VSOs who sometimes
lack the resources and prowess of a law firm. Moreover, there is
virtually no legal recourse if a veteran uses a VSO and deadlines are
missed or a claim is mishandled. The fact a veteran has the choice to
retain a professional veterans law attorney and his staff is a victory
for veterans. |
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