» Judge Joseph L. Toth
PRECEDENTIAL CAVC CASE ALERT: Martinez v. Wilkie (17-1551)(38 USC 5103A, the Duty to Assist and C&P Opinions)
What is the Deep Issue in the Case? This case had two issues: one statutory and the other constitutional. Issue#1: 38 U.S.C. §5103A(a)(1) requires the Secretary “assist a claimant in obtaining evidence to substantiate the claim.” The Secretary d…
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May 28th, 2019
Contributor: Chris Attig
Categories: Veterans Law Updates
Tags: 38 USC 5103A, 38 USC 5104, 38 USC 5109, 38 USC 7109, Ashley D. Varga, due process violation, Duty to Assist, Judge Amanda L. Meredith, Judge Joseph L. Falvey Jr., Judge Joseph L. Toth, Michael Martin, Morgan & Morgan, St. Petersburg FL VARO, Stacey Clark, University of Missouri Law School Veterans Clinic
Does the VA Duty to Assist require giving to veterans a copy of their C&P opinions?
One of our clients’ cases, Martinez v. Wilkie, No 17-1551, was recently set for a panel decision by the US Court of Appeals for Veterans Claims (CAVC).We are not yet sure if there will be supplemental briefing or oral argument at this time. In…
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January 17th, 2019
Contributor: Chris Attig
Coffee w/Chris: Is there enough air in your law firm's tires? (11-19-2018)
Today’s video starts off with an overview of a recent precedential decision of the U.S. Court of Appeals for Veterans Claims in the case of Moody v. Wilkie, Cause No. 16-1707. Click here to read the CAVC’s panel decision in Moody v. Wilki…
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November 26th, 2018
Contributor: Chris Attig
CAVC Docket Update: Appeals Submitted for CAVC Panel Decision and Oral Argument (June 2018)
In June 2018, it appears that the Court of Appeals for Veterans Claims (CAVC) has set 1 case for Panel Decisions and 4 cases for Oral Argument and Panel Decision. I do my best to seek out and find all cases submitted to a CAVC Panel or set for Oral A…
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July 19th, 2018
Contributor: Chris Attig
Categories: Veterans Law Updates
Tags: 38 C.F.R. §3.114(a), 38 C.F.R. §3.344, 38 U.S.C. §5904, Abhinav Goel, attorney fees, Christian A. McTarnaghan, Christopher W. Brown, Clear and Unmistakeable Error (CUE), Debra L. Bernal, effective date, extra-schedular rating, Jenna E. Zellmer, John F. Cameron, Judge Joseph L. Toth, Judge Margaret Bartley, Judge Michael Allen, Judge William S. Greenberg, Kenneth H. Dojaquez, liberalizing law, Margaret E. Sorrenti, Michael G. Imber, ptsd, Snyder v. Nicholson 489 F.3d. 1213 (Fed. Cir. 2007), stabilized rating, Thun v. Peake 22 Vet. App. 111 (2008)
Case Review: #16-3564, Gerhardson v. Shulkin (Can Inadequate Opinion make Inadequate Reasons and Bases harmless error)
What is the Deep Issue in the Case? {Several issues were raised in the briefing of this case – this review focuses in on one: the CAVC harmless error rule.} When the BVA issues a remand order, the veteran or surviving spouse is entitled to subs…
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March 16th, 2018
Contributor: Chris Attig
Categories: Veterans Law Updates
Tags: 38 USC 5103A, American Legion, D'Aries v. Peake 22 Vet. App. 97 (2008), due process violation, Gardner Deference, H.N. Schwarz, Harmless Error, Judge Joseph L. Toth, Margaret K. Krasik, Mark D. Gore, Mathis v. Shulkin 137 S.Ct. at 1995 (June 26 2017), Prickett v Nicholson 20 Vet App 370 (2006), Rizzo v Shinseki 580 F.3d 1288 (Fed. Cir. 2009), Shinseki v. Sanders 556 U.S. 396 (2009), St Paul MN VARO, US Constitution 5th Amendment
Case Review: 16-3392, Edmunds v. Shulkin (Lay Evidence & VA Exam Adequacy)
What is the Deep Issue in the Case? Medical examiners are not required to discuss every piece of favorable evidence or provide reasons or bases. Monzingo v. Shinseki, 26 Vet. App. 97 (2012) The veteran testified that he had pain related to 2 current…
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January 23rd, 2018
Contributor: Chris Attig
