Citing decisions that have the same issues your claim have is taking advantage of the law and not being intimidated by a Board made up of members that may not have your best interest at heart.     For those of you that may be less synical, it is a way to insure that your claim gets the same considerations another (granted) claim did.

    Please keep in mind that this is a work-in-progress.     Thank you.

Index     See Legal Terms - Evidence

    Why do we cite another claim (and its decision)?

    You have found another claim that matches your issues that was granted and you are merely pointing out prior decisions to insure that you are given equal treatment.

    Why is that important?

    The Board is assembled as a court in the Dept. of V.A. that must follow the United States Code (laws) and administer their federal regulations equally for all.     They can not, may be in error, deny a claim where there is "legal precedence" for another similar claim.     Both claim(s) must be adjudicated or treated the same, without bias or prejudice.

    "Equal Treatment Under the Law"

    Everyone, without exception, is afforded equal treatment under the law.     The body given the responsibility to past judgment on your claim, right up through the Supreme Court of the United States, are given the responsibility to hear your claim, and using the laws as a basis, formulate a decision which will either grant your claim or for reasons explained, deny same.

    Many of you may have heard the term of "interpretting the law" versus "making the law."     In recent times, President Bush has been fortunate enough to further leave his legacy in history by two appointments of Supreme Court Judges which will sit on the Court for life, or until they so desire to retire.     They are not elected or subject to scrutiny so that they may take on their responsibilities without outside influence.     At least, that was the intent of our ancestors in developing our laws and constitution.

    The Board of the V.A. can not "make law."     They can only follow the law and that means "proper interpretation."     When any court does not follow the law correctly, that is why a person may appeal to a higher court for justice.     The Board is made up of humans and hear many cases (or claims) and may not be aware of a legal precedence and what has been afforded a prior claimant.     In fact, you are assisting the court, the Board, by pointing out a similar situation that was granted on behalf of that claimant.

    In essence, you are saving them time and making it easy to review your claim.

    A word of warning, though.     Your claim, for all practical purposes, must match or be very similar to the "citing" you are referencing.     In legal terms, the word "citing" is synonymous with "pointing to."     In this section, there will be claim citings and decision quotes that you may use in your claim or appeal.

    Remember, the difference between U.S. Code and V.A. Regulations.     The regulations must follow the law.     In some ways, you can think of regulations as an expansion of the law for the purpose, and only purpose, of administering the laws in the Dept. of the V.A.

    Let's take a closer look at this law/regulation relation, and remember that U.S. Code (of Law) will always be titled "U.S.C." where V.A. federal regulations will be abbreviated "C.F.R." for Code of Federal Regulations.     CFRs governs the procedures and the way the Department does business; administers the laws of the United States.     In the Law and Regulations are many sections and divisions and in both cases, USC or CFR, the primary division is Title 38.     Then, the code of law or regs is broken down further into sections and referred to as sections.     Law (and Regs) get more sophisticated is defining the terms associated with sections and you will find sub-sections and sub-subs.     Before we get into citings, we will review some of these provisions of law and regs and important ones, at that, that may be important to cite.

    For instance, many of you have heard the term "over-turned."     This concept or term is in the area of "correcting" a decision based upon a citing, and in most cases would be considered an error of the Court.     I will try to explain each citing and its primary use in over-turning a denial of a claim or even a claim that was, in error, remand (unjustly.)

Getting Started

    The Department of V.A. is given the authority to administer disability claims in accordance with the Laws of the United States by 38 U.S.C. § 501, title "Rules and Regulations."

    Quote/ " (a) The Secretary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws,"     For the complete definition of this law, click on the (under-lined) link above.

    In November, 2000, before President William Clinton left office, he insured that future claims by veterans would be given better assistance and fair treatment which actually caused the V.A. to be completely revamped.     This Act of Law is known as Veterans Claims Assistance Act of 2000, or VCAA/2000, for short.

    Quote/ " To amend title 38, United States Code, to reaffirm and clarify the duty of the Secretary of Veterans Affairs to assist claimants for benefits under laws administered by the Secretary, and for other purposes."     Now, you see -- law references other laws and not regs that are "administrative" in nature.     I like to joke that it makes the administrators feel important.     Wrong.     They (the administrators) have no more authority than is provided under the Laws of the United States !

    With a better understanding of the law, one can better manage their own business.     I like the introduction wording of VCAA/2000 in that it says "clarify."     It seems that the duties and responsibilities of the (old) V.A. was being interpretted unduely or unfairly and there was a definite need to better define (and clarify) the rules of law (to the V.A.)

The old V.A.

    In the past, the V.A. (heavy-handed) claims in a more adversarial way then today.     The V.A. was following a doctrine of "Well-Grounded" claims.     Translation:   "Screw you -- if you don't have factual evidence to substantiate your claim for disability!"     If you think that is harsh, think again.     The United States government today still hides behind official classified documents which a claimant does not have access to and therefore, can not substantiate their claims in a court of law.

    If you think that the above statement is wrong, cruel and unfair .. guess again.     I love to uncover scandals and incidents that the government (sheepishly) acknowledge.     Especially, in unfair treatment, as a legal class, Thailand veterans.     Many of you that served in the military, a tour in Vietnam, are not affected.     No, it is those that served either directly or indirectly in the Secret War of SEA that are screwed.

    Did you know of Lima Site 85?     No?     It was manned by air force personnel, discharged from the air force and worked for an aerospace contractor to the federal government; mission:   radar site high on a rugged mountain in Northern Laos with a beam on Hanoi during the Vietnam War.     The Communist overran the installation, either killing the airmen or taking them prisoner.     Their families had a hell of a time in just compensation for their losses, only compounded by their status as non-military personnel -- civilians !!!

    Don't tell this (informed) veterans advocate that the government is fair in dealing.     They will do what they have to do to limit (financial) liabilities.     Will they ever change?     They can't.     If they were to admit to such wrong doing, under the same laws of our country, they would be liable to the families of all those that have already died from service connected injuries or illness, eg, cancer.

    My allegations are well documented by researchers and books on the subject.     I will conclude my passion for these KIA/MIA/POWs with one last reference.     On the CNN News recently, there was a "quick" announcement to finding the remains of one of those airmen on Lima 85 (a CIA site designation) and it said that the identity was determined after one year of having said remains.     They didn't go into much detail, but I knew.     These men, both KIA/MIA/POW, are my personal bracelet for the War, the Secret War.

    To this day, many official documents remain classified and probably will remain so for another fifty (50) years.     Why?     For many reasons, none of which have to do with homeland security.     The Communist were on to us and these men (with patriotism and personal sacrifice at heart) were "sitting ducks" with battalions of NVA in place at the foot of this high, rugged mountain poised to attack.     Instead of evacuating them, timely, our military leaders waited "One Day Too Long," the title of a book telling their story, a good read ...





    For those with a sincere interest in and "never forget" attitude towards those that for all practicle purposes have made the ultimate sacrifice, you can learn more about MIA/POW bracelets through the following sites:

    TheWall-USA and MIAfacts.

    For the airmen that I will never forget,   please visit Lima85.

Citings and Duty to Assist Veterans/Claimants of the V.A.

    It is the duty (and responsibility) of all staff workers at the V.A. given the responsibility to assist veterans apply for disability benefits to adhere to regulations governed under law.

    Please learn and be aware of all paragraphs making up the following V.A. regulation
-- CFR 38 - Section § 3.159     This (administrative) regulation is based in whole or (majority) part on U.S. Code 38 USC - Section § 5103A and for all practicle purposes is just a "regur-chitation" of the Law and I have taken the time only to outline in bold the law, § 5103A which is referenced throughout the reg as the "authority," and so it is.

    Why do I point out and/or emphasize the importance of the provisions in § 5103A?     It's simple.     As in any court of law, and the rules regarding evidence, both parties in a dispute, in an adversary situation either civil (court) or criminal (court) are bound to exchange information.     To "clarify" the responsibilities of the V.A., they can no longer either in act or attempt of same withhold important information from you, the veteran; the claimant.

    In terms of law, a good defense attorney (in a criminal action) can literally have charge(s) dismissed from their client, and in a civil lawsuit have a court decision overturned.     In the Veterans Appeal Court, with the Board of same, I am still learning as to the penalties that avail a claimant for damages.     At minimum, it may be adequate to have a denial decision reversed, benefits restored and generally, have a claimant's claim granted.

Example of the Power of Responsibility

    You, the claimant, have submitted all the evidence to substantiate your claim and rightfully so, consider it (the claim) complete.     If it is not complete, the V.A. (now) is obligated to inform you and also explain, briefly, what they (the V.A.) or you must do in order to furnish or complete the claim.     (These are the kinds of things that makes a good defense attorney smile.     That is the law is truly in favor of the defendant or claimant, now.)

    If the V.A. does not fulfil its obligations to the claimant, it may be severe enough "admission" on the part of the V.A. to be considered "complete" -- without said issues resolved.     Why?     Because the V.A. did not timely (and properly) inform you, the claimant, of any "deficiencies."

    Note, I use quote(s) on identifying certain words and terms because of their legal implications in a court of law.     "Deficiencies" is something lacking in your claim; to substantiate same.     The V.A. screws up; tough.     They should be able to find in your favor without such evidence complete because of the undue delay, ie, "due process."

    You will see throughout V.A. regs reference to "Substantially complete application" and that is the definition of a thorough and complete claim.     By not following the law, the V.A. must be penalized as to such deficiency issue(s).

    "Admission" is affectively "getting caught," in error.     The V.A. did not fulfil its obligations to you, and must suffer the consequences.     As you will see in reviewing claims and case studies, the Board is made up of Judges and Judges do not like to make such mistakes.     If anyone makes mistakes, it is the (lowly) administrators/staffers in the V.A. offices, and you should not have to pay for their admissions.

   (a) Duty To Assist. - (1) The Secretary shall make reasonable

    efforts to assist a claimant in obtaining evidence necessary to

    substantiate the claimant's claim for a benefit under a law

    administered by the Secretary.

Translation:   efforts that would be considered reasonable must be made to assist a claimant in getting all the evidence necessary to substantiate/fulfil the claim of the claimant (for benefits/under law.)

    (3) The Secretary may defer providing assistance under this

    section pending the submission by the claimant of essential

    information missing from the claimant's application.

Translation:   If the V.A. needs something from you (first,)   they may wait (up to one year) before taking any further action (on your behalf.)     In other words, you "sit on it," and the V.A. needs it and they have (duely) informed you of the need, the V.A. doesn't have to do anything until you fulfil your part.

      (b) Assistance in Obtaining Records. - (1) As part of the

    assistance provided under subsection (a), the Secretary shall make

    reasonable efforts to obtain relevant records (including private

    records) that the claimant adequately identifies to the Secretary

    and authorizes the Secretary to obtain.

Translation:   Again, "reasonable effort" to secure the records pertaining to your claim, eg, medical; including private records (with your consent (form) too.)     In essence, you identify the records required to substantiate your claim for disability, medical or otherwise, and the V.A. is supposed to act (in good faith) to make every reasonable effort to secure same.     Tip:   don't count on it.     Get your own medical records, evidence, physician medical opinion(s) and deliver them to the V.A. with your application.