Tuesday, March 18, 2008

An Explanation of recent Court Actions

Courtesy of Veterans Advocate Berta Simmons, comes this explanation of the flurry of VA remands from the US Court of Appeals for Veterans Claims. The source is Rich Cohen of NOVA [National Organization of Veterans Advocates]:

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From Rich Cohen NOVA

Berta:

The large number of remands form the Fed Circuit has nothing to do with Hass.

Rather, they are reversals based on Simmons/Sanders. It is pretty complicated and involves the application of the Rule of Prejudicial error (RoPE) as applied to the failure of the VA to provide adequate VCAA notice or assistance to veterans. The VA appealed all the cases in which the veterans court said the case needed to be remanded to the VA. Then, the Fed Circuit stayed all the cases for 2-3 years until the lead case was decided. A typical order from
the Fed. Cir. looks like this :

"This case was stayed pending the court's disposition in Roan v. Principi, 2004--7093, which was stayed pending the court's disposition in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), and its companion case Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). In Sanders, this court held that any 38 U.S.C. § 5103(a) error should be presumed prejudicial and the Secretary has the burden of rebutting this presumption. Id. at 891. [¶] The court agrees that summary affirmance of the judgment vacating and remanding to the Board is appropriate in light of our decisions in Simmons and Sanders. [¶] Accordingly, [¶] IT IS ORDERED THAT: [¶] (1) The stay of proceedings is lifted. [¶] (2) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed. The case is remanded. [¶] (3) Each side shall bear its own costs. [¶] FOR THE COURT [¶] /s Jan Horbaly [¶] Clerk".

Obviously, the explanation of issues such as RoPE, the VCAA, and procedures in the Fed. Cir, is too complex and would take too long to explain to your listeners."
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Essentially, the cases centered on the requirements of the VA to notify the Veterans filing claims, in more detail, what the VA required to approve their claim, and what the VA could do to help. Without that information in the notices, those notices were "prejudicial" against the Veteran.

Now, if someone could answer the current question about why the United States Court of Appeals for the Federal Circuit has gone two straight business days without disposing of a single opinion of any kind. Hmmmmmmm....

VNVets

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2 comments:

  1. Could someone explain in lay terms what exactly is being said in this new posting. Veterans would like to know exactly where they stand.

    ReplyDelete
  2. Jacque,

    I don't know how else to say it than the way I did at the bottom of the post:

    "Essentially, the cases centered on the requirements of the VA to notify the Veterans filing claims, in more detail, what the VA required to approve their claim, and what the VA could do to help. Without that information in the notices, those notices were "prejudicial" against the Veteran.

    ReplyDelete