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posted Aug 25, 2014, 4:29 AM by Neslo Ventures   [ updated Aug 25, 2014, 4:29 AM ]

Military and Veterans

Select from the list of subtopics below for information about your military / veterans issue:

National Organization of Veteran Advocates

posted Aug 25, 2014, 4:25 AM by Neslo Ventures   [ updated Aug 25, 2014, 4:25 AM ]

Providing training for those who represent America's veterans and dependents

NOVA can help you find an attorney with the highest level of training in veterans’ law. Visit our Veterans Help webpage for more information.


Guide to Veterans Legal Issues

posted Aug 25, 2014, 4:16 AM by Neslo Ventures   [ updated Aug 25, 2014, 4:16 AM ]

Guide to Veterans Legal Issues: Describes the legal issues that veterans may encounter and guides readers to the appropriate resources to help veterans facing legal issues.

Guide to Veterans Legal Issues

Civil Rights

posted Feb 3, 2014, 9:08 PM by Neslo Ventures   [ updated Feb 3, 2014, 9:08 PM ]

Bar Association Website to Assist Vets

posted Aug 31, 2013, 8:17 PM by Neslo Ventures   [ updated Aug 31, 2013, 8:17 PM ]

The American Bar Association has unveiled a website for volunteer lawyers interested in helping to ensure veterans receive disability compensation. The new ABA pilot program, ABA Veterans Claims Assistance Network (VCAN), aims to reduce the backlog of veterans' claims by engaging pro bono lawyers to provide free assistance to unrepresented veterans with claims pending at the St. Petersburg, Fla., and Chicago regional VA offices. Interested lawyers can visit the ABA VCAN website and join the volunteer roster, with the case referral system expected to launch this fall. The volunteers will be contacted about no-cost continuing legal education courses on preparing veterans' claims as well as information about how to become VA-accredited.

Legislation Would Help Wrongfully Discharged Vets

posted Apr 3, 2013, 8:45 PM by Neslo Ventures   [ updated Aug 25, 2014, 4:17 AM ]

Apr 02, 2013 Minneapolis-St. Paul Star Tribune by Mark Brunswick

As many as 31,000 Iraq and Afghanistan veterans nationwide may have been improperly discharged for personality or adjustment disorders, even though they may be suffering from service-connected disabilities such as post-traumatic stress disorder, the signature injury of the wars.

Federal legislation supported by Sen. Amy Klobuchar, D-Minn., and Rep. Tim Walz, D-Minn., would make it easier for those veterans to correct a misdiagnosis and qualify for the Veterans Affairs benefits.

"Now more than ever, we need to make sure our military policies address a growing prevalence of service-related mental health problems and reflect the changing face of what it means to be injured in combat," said Klobuchar, a co-author of the bill with Sen. John Tester, D-Mont.

At a Monday news conference at the Ramsey County Veterans Services Department, Klobuchar and Walz spoke about the importance of correcting the problem. Walz, a 24-year Army National Guard veteran, has introduced similar legislation in the House.

"These misdiagnoses are clearly the wrong way to go about it," said Walz. "These people, these warriors, deserve the opportunity to have a fair recourse."

The bill would change where a veteran would go for a review and change the burden of proof on establishing a disability. The current organization, the Board of Corrections of Military Records, is largely focused on administrative errors and puts the burden for the evidence on the veteran. The legislation would shift responsibility for reviews to the Physical Disability Board of Review, which focuses on medical information provided by the VA and the Department of Defense.

The change would have an impact on female service members who have been misdiagnosed at a higher rate, particularly after reporting sexual assaults in the service.

Veterans discharged after being diagnosed with a pre-existing personality disorder are ineligible for health care and disability payments through the VA. They also lose hiring priorities and any retirement or disability payments.

A 2012 Yale University study found that as many as 31,000 Iraq and Afghanistan service members were discharged because of pre-existing disorders and that as many as 60 percent of the discharges failed to follow proper procedures, meaning the veteran may not have been diagnosed by a psychologist or psychiatrist.

The bill would allow a veteran to challenge a diagnosis through an independent psychologist or psychiatrist. It's unclear how many veterans in Minnesota might have been affected by improper diagnoses. But Ramsey County Veterans Services Officer Maria Wetherall said the current way "can be excruciating, long, complex bureaucratic processes, and often the outcome for the veteran is negative. "

The legislation focuses on Iraq and Afghanistan veterans.

The Nexus Letter

posted Nov 9, 2012, 9:44 PM by Neslo Ventures   [ updated Nov 9, 2012, 9:44 PM ]

Nexus - a method of bringing all links in a chain of events together.  For the purpose of a Veteran's claim, this is a historical/medical account of the issue or chain of issues leading to the cause of the claim.

A well written nexus statement (or nexus letter) may be the single most important document that you will have in evidence to support your claim of a VA disability benefit.

Your nexus letter is the chain that connects one event to the next.

Having a nexus letter in your claim is not a requirement for every claim, but our opinion is to give the VA every reason to say "approved" rather than denied, delayed or even to get the highest available rating
. Claims that are based on presumptive conditions and claims where the evidence is clear and unmistakable usually don't need such an elaborate document.

When the nexus letter is necessary, there is nothing else that will replace it. If you take the time to read this carefully and get your nexus letter done right the first time, you may save yourself years of appeals.


Nobody will do this for you. Most people, including doctors, don't understand how important it is to use precise language and phrases. You must do it yourself and you must supervise every word of the statement.


Though your doctor may write a statement that supports your claim, you may still be stuck proving how/when/where/why the issue occurred. 

EXAMPLE:  Headaches, GERD, Barrett's Esophagus, severe snoring, sleep apnea, avascular necrosis, high blood pressure, PTSD, TBI

All of these symptoms did not occur at the time of the accident.  The major issues were broken ankles and frontal lobe damage due to a car wreck.  The short and sweet of it for this example is this:  All of these symptoms and diseases occurred due to the course of treatments ordered by the do
ctors such as 800mg of Motrin several times a day for years that ate the lining of the stomach and esophagus; which lead to this, that and the other symptom caused by the injuries of the car wreck. 

The point here is to tie all these issues back to the initial cause.

Motion for Reconsideration

posted Jan 15, 2012, 5:56 PM by Dawn Olsen   [ updated Jan 15, 2012, 5:56 PM by Neslo Ventures ]


~Sample~

February 2, 2004

Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, D.C. 20420

re:    Veteran:    [veteran name]
        C-file:       [vet ssn]

MOTION FOR RECONSIDERATION
or, in the alternative,
CLAIM OF CLEAR AND UNMISTAKABLE ERROR

Dear Sir/Madam:

(Explain the purpose of the motion along with the attachments)
Enclosed is a copy of the VA Form 22a, signed by the above veteran appointing me as his representative in connection with VA matters. Enclosed you will find a disk for your convenience. On it you will find the veteran’s 1135 page C-file, a rough index of the C-file, and a copy of this Motion, with exhibits. These documents may be viewed using an Adobe Acrobat reader. It should save the time you might otherwise spend sending to the St. Petersburg VA Regional Office for the C-file.

This letter relates to a reduction in the veteran’s VA benefits which occurred on March 1, 1982, following a letter addressed to him dated Jan 05, 1981 (Exhibit 1). Prior to that time the veteran had been rated at 90% disabled, with individual unemployability, resulting in a 100% disabled total rating. As the result of this action in 1981, the veteran’s compensation was reduced from $1220 (approximately) to $740 per month.

Mr. [last name] has remained at the 90% rating from that day forward, with the exception of a few times when he received a total rating due to hospitalizations. The reduction of benefits was finally upheld in a decision of the BVA dated January 17, 1984. That is the decision for which the veteran seeks reconsideration. In the alternative, that is the decision that the veteran contends contains clear and unmistakable error.

FACTS (Be clear, concise and to the point)
The veteran is a combat Marine veteran of the Tet offensive in Vietnam in 1968. After 14 months hospitalization on the hospital ship Repose, in Guam, and at the Oakland Naval Hospital, the veteran was finally medically discharged with a diagnosis...

On page 8 of this BVA decision, for the first time, one finds a tangential reference to the VA regulations on the requirements for termination of benefits. “In reducing a rating of 100 percent service-connected disability based on individual unemployability, caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. (38 C.F.R. 3.314 (c)). It then made findings that:

3. The appellant has been reported as capable of tutoring and manual labor jobs that can be accomplished from a wheelchair; in other words, he has been shown to be clearly and convincingly able to work.

4. It has not been demonstrated that service-connected disabilities are productive of sufficient impairment so as to render the veteran unable to perform a substantially gainful occupation.

Based on these findings, the BVA decision was:

3. Restoration of the total evaluation based on individual unemployability due to service-connected disabilities is not warranted. (38 U.S.C. 355; 38 C.F.R. 3.321, 3.340, 3.341, 3.343(c), Part 4, 4.16).  In arriving at its decision, the BVA failed, neglected or refused to discuss regulatory required findings necessary before a withdrawal of benefits were to finalized.

Specifically, the BVA failed to make a finding based on an examination showing material improvement in physical or mental condition. The version of VA regulation 38 C.F.R. § 3.343(a) in effect at the time provided that total disability ratings were not to be reduced or discontinued, in the absence of clear error, unless there was an examination showing material improvement in physical or mental condition.

The decision based on that examination should have been whether, upon consideration of all the facts and records, the veteran had attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or by following a regimen which precludes work. If the latter, reduction from total disability ratings should not have been considered pending a reexamination after a period of employment (3 to 6 months). (Exhibit 19).

None of this was considered or discussed in the 1984 BVA decision. Instead, the veteran’s case was treated much as a new claim for IU. Although the BVA decision acknowledged that the VA carried the burden of proof of showing clear and convincing evidence in its decision, it totally fails to discuss what it was that had to be shown.

There is no examination showing improvement in the Veteran’s case, nor any mention of improvement. As noted above, what they had the duty to show was that there had been improvement in the veteran’s condition since he had been previously determined unemployable. A review of the BVA’s finding of facts reveals no mention of improvement. It deals entirely with his current condition. The discussion, and the facts of the case, are bereft of any “examination showing material improvement in physical or mental condition.”

ARGUMENTS
(Be clear, concise and to the point.  Make sure you can back up your arguments.)
It is the veteran’s position that the elimination of the rating for individual unemployability was contrary to the law and that the IU rating should be restored, effective March 1, 1981. There are several reasons for this position.

They are:

THE REGULATION WHICH THE VA DEPENDED UPON WAS CONTRARY TO ESTABLISHED LAW.
Prior to the 1984 BVA decision in his case, the VA had relied on the provisions of the VA Adjudication Manual, M21-24,07 (sic) to relieve him of his IU rating.

Presumably, this is a reference to the Veterans Benefits Administration Adjudication Procedure Manual M21-1 (M21-1) section which addressed the '0.0000 TD (TI)Tj 10.8000.52000m.

Writ of Mandamus

posted Jan 15, 2012, 4:56 PM by Dawn Olsen   [ updated Jan 15, 2012, 5:00 PM by Neslo Ventures ]

How to File for a Petition for Writ of Mandate

By Mike Broemmel, eHow Contributor

A petition for writ of mandate, also commonly known as a petition for a writ of mandamus, is a document filed with a court that requests an order directing a governmental agency or representative to perform a required function. In the alternative, a petition for writ of mandate can be filed seeking a court to order a governmental agency or representative to stop doing something that it has no legal authority to do in the first instance.

Difficulty:  Challenging

Instructions

Things You'll Need

  • Petition for a Writ of Mandate (or Mandamus) Hearing Notice
  1. Identify what legal right you personally have to seek a writ of mandate. You need to demonstrate that a governmental entity or representative is legally bound to perform a certain act or function and the failure to do so has impacted your rights.

  2. Make certain that the issue at hand does not involve a discretionary function of the governmental entity or representative. You cannot bring a writ of mandate if the act not being taken is one that can be pursued on a discretionary basis.

  3. Prepare an initial petition for mandate, which technically is known as an "alternative mandate" or "alternative mandamus." This initial filing requests that the court order the governmental entity or representative to perform or, in the alternative, appear in court at a designated time to explain why the performance of the act legally should not be done. You will also need to prepare a notice of hearing to advise the defendant of the time and place of the proceedings.

  4. Take care to outline specifically the facts that support the basis for your request and the reasons that the governmental agency (or agent) is required by law to act on your behalf.

  5. Upon a failure of the governmental agency or representative to appear in court at the initial hearing, or if the entity or agent fails to demonstrate a justification for not acting, you will then request the court to issue a "peremptory mandate" or peremptory mandamus. This is an unqualified and direct order of the court commanding the governmental agency or agent to undertake the desired, legally mandated act.

Tips & Warnings

  • Filing a petition for a writ of mandate or writ of mandamus is a complicated task in some instances. You need to familiarize yourself with the judicial system and the rules of civil procedure. You may want to consider obtaining legal assistance. If your case truly involves an issue of public significance, you likely will be able to find a lawyer in private practice who would consider volunteering to assist you with the case. In the alternative, you might be able to obtain legal assistance from a public interest organization as well.

References

Resources


The Free Dictionary - Legal

[Latin, We command.] A writ or order that is issued from a court of superior jurisdiction that commands an inferior tribunal, corporation, Municipal Corporation, or individual to perform, or refrain from performing, a particular act, the performance or omission of which is required by law as an obligation.

A writ or order of mandamus is an extraordinary court order because it is made without the benefit of full judicial process, or before a case has concluded. It may be issued by a court at any time that it is appropriate, but it is usually issued in a case that has already begun.

Generally, the decisions of a lower-court made in the course of a continuing case will not be reviewed by higher courts until there is a final judgment in the case. On the federal level, for example, 28 U.S.C.A. § 1291 provides that appellate review of lower-court decisions should be postponed until after a final judgment has been made in the lower court. A writ of mandamus offers one exception to this rule. If a party to a case is dissatisfied with some decision of the trial court, the party may appeal the decision to a higher court with a petition for a writ of mandamus before the trial proceeds. The order will be issued only in exceptional circumstances.

The writ of mandamus was first used by English courts in the early seventeenth century. It migrated to the courts in the American colonies, and the law on it has remained largely the same ever since. The remedy of mandamus is made available through court opinions, statutes, and court rules on both the federal and state levels. On the federal level, for example, 28 U.S.C.A. § 1651(a) provides that courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The Supreme Court set forth some guidelines on writs of mandamus in Kerr v. United States District Court, 426 U.S. 394, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976). In Kerr, the Court upheld the denial of a writ of mandamus sought by prison officials to prevent the district court from compelling them to turn over personnel and inmate files to seven prisoners who had sued the prison over alleged constitutional violations. The officials argued that turning over the records would compromise prison communications and confidentiality.

The Supreme Court observed in Kerr that the writ of mandamus was traditionally used by federal courts only to confine an inferior court to a lawful exercise of its jurisdiction, or to compel an inferior court to exercise its authority when it had a duty to do so. The Court also noted that mandamus is available only in exceptional cases because it is so disruptive of the judicial process, creating disorder and delay in the trial. The writ would have been appropriate, opined the Court, if the trial court had wrongly decided an issue, if failure to reverse that decision would irreparably injure a party, and if there was no other method for relief. Because the prison officials could claim a privilege to withhold certain documents, and had the right to have the documents reviewed by a judge prior to release to the opposing party, other remedies existed and the writ was inappropriate.

Although traditionally writs of mandamus are rare, they have been issued in a growing number of situations. They have been issued by federal courts when a trial judge refused to dismiss a case even though it lacked jurisdiction; refused to reassign a case despite a conflict of interest; stopped a trial for Arbitration or an administrative remedy; denied a party the opportunity to intervene, to file a cross-claim, or to amend a Pleading; denied a Class Action; denied or allowed the consolidation or severance of two trials; refused to permit depositions; or entered an order limiting or denying discovery of evidence.

The writ of mandamus can also be issued in a mandamus proceeding, independent of any judicial proceeding. Generally, such a petition for a mandamus order is made to compel a judicial or government officer to perform a duty owed to the petitioner. For example, in Massachusetts, each year the commonwealth's attorney general and each district attorney must make available to the public a report on wiretaps and other interceptions of oral communications conducted by law enforcement officers. If the report is not made available, any person may compel its production by filing an action for mandamus (Mass. Gen. Laws Ann. ch. 272, § 99 [West 1996]). If successful, a court would issue an order directing the attorney general and district attorneys to produce the information. The attorney general and district attorneys have a chance to defend their actions at a hearing on the action. If the parties fail to comply with a mandamus order, they may be held in Contempt of court and fined or jailed.

Further readings

Hazard, Geoffrey C., Jr., et al. 1999. Pleading and Procedure, State and Federal: Cases and Materials. 8th ed. New York: Foundation Press.

Wyler, Robert A. 1990. Legalines: Civil Procedures. 3d ed. Chicago: Harcourt Brace Jovanovich Legal & Professional.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Veterans Law Library

posted Nov 20, 2011, 11:14 PM by Info @NesloVentures   [ updated Aug 25, 2014, 4:20 AM by Neslo Ventures ]

A Comprehensive Collection of Materials Relating to the
Veterans Benefits Adjudication Process


Veterans Law Library






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