How to “not lose” your VA claim a la Sellers.

If you are a Veteran, appealing your claim either at the CAVC level or the BVA level, you need to read over Ask Nod’s interpretations of Sellersas well as the judges’ dicta.

While many Vets want to “win” their claim, it is more important to “not lose” your claim! I shall endeavor to explain the difference between “winning” and “not losing” even though I shall admit it is an issue of semantics.

A Veteran who seeks to “win” his claim, gets his wife or girl friend to help him write a nice letter to the VA, in the form of a NOD, explaining how much he deserves his benefits (and how much he needs the money) and how sick he is.    The VA should not care whether or not he “perfected” his appeal with the appropriate I9, or even if he sent in the NOD after the one year appeal period.  He should still be able to “win” right?  Wrong.  The VA is going to follow the regulations to the letter, and your failure to do so will result in a denial, even if your girl friend sends in her panties (along with nude pics)  to the VA judges.

Instead, the Veteran needs to “not lose” his case.   Let the VA be the one to make legal errors.   They will likely oblige, reminding you that the rating specialist who made your RO decision was unlikely to have a degree in law, and neither did his boss.   Instead, RO decisions are incorrect more than 75.8% of the time, regardless of how many times the VA pretends otherwise.   The chairmans report explains this in detail, but you need to know how to interpret the numbers.

On page 22, it shows that a mere 24.2 percent of Veterans claims are (again) denied at the BVA level, indicating there is at least some type of error necessitating either a remand or an outright award of benefits by the BVA more than  ¾ths of the time.   If you live to see your appeal to at least the Federal Circuit level, then you odds of “not losing” at least a remand are even better, because the CAVC overturns some of the BVA decisions as do the Federal Courts.

By “not losing” you don’t bother to tell the VA how sick you are, and how your girlfriend also thinks you should get your benefits, too, as that will make her life easier.   Instead, you take what the VA says in its “reasons and bases” for decision and refute it.  

    Do not tell the VA judge what ” you think” in your appeal.   He is uninterested in your opinion.    While it may make you feel better to vent how the VA mistreated you, do that instead in an ASK NOD comment.   The VA wont beleive a word you say, but they will defend whatever THEY SAY to the death.  So, nail them on their R&B (rhythme and blues..ok..reasons and bases) because they can not refute what they themselves say.  This is succintely pointed out in Sellers:

On page 8 of Sellers, the Veteran quotes the DRO who stated:

“We tried to grant the benefit from our perspective, but the front office said No! This is an incorrect decision.”

This is the VA admitting the decision was incorrect.  This is not the Veterans opinion!   You see, no one likes to admit they are lying and the VA is no different.  They can’t say the decision was correct on one hand and have an employee on record state the decision was incorrect.  This is the “Ah Ha” moment.  Once this employee said this, the VA can not change their position without new evidence, as pointed out by Sellers:

Once notice has been issued pursuant to section 5104(a), the RO may not effect any revisions to its decision, sua sponte, on the same factual basis, without a finding of CUE. . Binding the RO at the time section 5104(a) notice is issued serves to “preclude repetitive and belated readjudication of veterans’ benefit[s] claims.” . Binding the
RO at such time also activates a claimant’s ability to accept its decision or appeal the decision to the Board.”   Sellers vs Shinseki, citations omitted.

In summary, don’t try to win your case by telling the VA how sick you are or how much you need the money.  Instead, “don’t lose” your case by showing how the VA made legal errors, quoting their own words against them, not your own opinions.

This entry was posted in Guest authors, Tips and Tricks, Veterans Law and tagged , , , , , , , . Bookmark the permalink.

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