(Transcription)

Cindy Speaker: Good afternoon and welcome to our show today. My name is Cindy Speaker. I have with me as my guest attorney Nathan Guin of Gardberg and Kemmerly Attorneys at Law. Nathan, how are you?

Nathan Guin: I’m doing great. How are you doing Cindy?

Cindy Speaker:  Doing good, it’s good to see you.

Nathan Guin: Good to see you, too. I hope all is well.

Cindy Speaker: Yep, we’re doing great here, so I’m pretty happy about that. Starting to get into spring, the weather is getting nicer.

Nathan Guin: Yes, thank goodness. I need it.

Cindy Speaker: We all do.

Cindy Speaker: Well, we’re going to talk about another, it seems like we always have complicated topics, but you do a very good job of breaking them down. So we’re going to talk about the Court of Appeals for Veterans Claims, and we’re also going to talk about writs to the Court of Appeals for Veterans Claims. So before we talk about writs, tell me what the Court of Appeals for Veterans Claims is. I guess it’s sort of self-explanatory, but just clarify that a little bit.

Nathan Guin: So yeah, today we’ll talk about writs which is just one aspect of the Court of Appeals for Veterans Claim. The Court of Appeals for Veterans Claims is a federal court that is specifically there to adjudicate claims from the Board of Veterans Appeals. So if you have a decision from the Board of Veterans Appeals, you went to your hearing or you didn’t request a hearing but let’s say you get denied for whatever the issue may be, your next step if you don’t want to file a motion for reconsideration with the Board is to appeal to the Court of Appeals for Veterans Claims. So basically you can go higher and get into the federal circuit, but typically speaking the Court of Appeals for Veterans Claims is the high court of Veterans Claims. It’s really what most of the precedential law that comes from them, the cases that come out that dictate changes in the law that we have to take into consideration. That’s where it comes from.

Nathan Guin: They are the first court, or the first high court that can create law through their decisions for VA attorneys and for veterans.

Cindy Speaker:  Okay. Well now let’s talk about writs. What is a writ? Because we’re going to talk about writs to the Court of Appeals for Veterans Claims. What’s a writ?

Nathan Guin: So a writ, really what it is, is a petition for a writ of mandamus, so a really fancy way of saying that. Sometimes the VA takes too long for a decision to be issued, it’s unreasonably delayed for whatever reason, whether it be just lack of power or whatever you want to, I feel like a lot of people would probably say incompetence, whatever your particular thing is. Really they can take a long time to get decisions back. And so what petitions for writs do, is it’s a mechanism that we’ve really started using to try to get cases that have been unreasonably delayed dealt with quicker. You basically use the court as the mechanism to get there, and that’s what the petition for a writ is for, just on that base.

Cindy Speaker: So is it an attorney that submits the writ?

Nathan Guin: My understanding is you can file it as long as you follow the rules for the filing and you put in the fees for the filing. I believe anyone can do it. It’s a little bit complicated to know kind of when to do it and the breakdown within it is kind of difficult in terms of the factors that you have to address to the court, but theoretically you can file a writ if you have a claim that’s been unreasonably delayed or taking too long, you can file a petition for a writ.

Cindy Speaker:  Okay, and who has jurisdiction over them?

Nathan Guin: So the Court of Appeals for Veterans Claims has a jurisdiction over those under the All Writs Act, so any writ or petition for a writ of mandamus is going to the Court of Appeals for Veterans Claims. I call them writs, they’re technically petitions for writs of mandamus, we’re asking for them to issue a writ, so we just call them writs just because it’s a little bit easier than a petition for writs, so when I refer to it, that’s what we’re asking for.

Cindy Speaker:  Yeah. Give us a couple of examples of when you would do this.

Nathan Guin:  So I’ve actually been working on a lot of them this week, so I can give you a lot of examples. So it can be any number of things. For example, we have one where we put in a substantive appeal to VA Form 9 to the regional office in the respective veteran’s state. What they have to do at that point is certify to the Board of Veterans Appeals, so basically what they do is they look, make sure everything’s in order, and then they’ll send the file off to Washington, D.C.

Nathan Guin: Well, we filed this in 2015 at some point and we still haven’t had the case certified to the Board. We’ve contacted the VA several times asking them for status or for them to actually take the action that’s necessary, and they haven’t. So that’s where a petition for writ would come in. Additionally, a lot of what will happen is if you go to the Board, a lot of times what they’ll do is remand claims, which essentially means they either need more information, more evidence or a new exam. They’ll send that back to the regional office to be done. A lot of times remands can take a year, two years, sometimes even longer.

Nathan Guin: In those particular circumstances, remanded claims are supposed to be given expeditious treatment under the law, so that would be a particular situation. There was another one where we had filed a Notice of Disagreement with their original rating decision, and that was back in 2015, still haven’t got a decision there even though we have in plenty of other cases. So really it can be for any claim that is just taking, at any point in the process, if the VA is taking an unreasonable amount of time, to do whatever it may be, you can file a petition for a writ.

Cindy Speaker: Okay. And how do they process?

Nathan Guin: Before you actually file the petition for the writ, there’s a couple of things you have to do. You have to wait what the VA considers, or what the court will consider a reasonable amount of time for VA. That’s really the trickiest thing about it is that it’s not a reasonable time to you or me. It’s reasonable for the VA given their caseload, so that’s kind of difficult. There’s a lot of different factors. You also have to wait a reasonable amount of time before you can file a petition, a good petition for writ, I should say. You need to try to contact the VA multiple times, whether it be by lip, by mail, by email, by phone, whatever it is you want to be able to show the court not only have I waited a reasonable amount of time, I’ve also requested for them to give me a status of the case, to do any work on the case, and we haven’t received anything back from them.

Nathan Guin: That’s really what triggers it. What we’ll do, is we’ll wait a reasonable amount of time under the VA, we kind of have internal clocks for each step of the process. If we get to a certain point where it’s taking too long, we’ll send three status letters to the VA about a month apart each to try to set that foundation to lay that groundwork to show “Hey, we’re trying to get in touch with the VA.” We’re trying to figure out what’s going on, we’ll check the VA electronic system to see if any work’s been done to support that as well. So you just want to make sure that all your ducks are in a row. You have to show that you’ve exhausted your remedies. So that’s kind of part of the first step, and then once they process, once you file it, you file it with the Court of Appeals for Veterans Claims, they’ll review it.

Nathan Guin: They then go to the VA, wherever the office is that’s basically in charge of whatever decisions you’re looking for because for each process it can be in a different place, whether it’s the original office or the board. It can kind of be any number of places. They’ll reach out and basically ask for an explanation of the delay or ask for what work’s been done. Basically they’re asking for a really good reason why this hasn’t been done. Typically what will happen is the VA will respond, or a lot of times what will happen is the VA will just take the action that we request because they don’t want to fool with the rest of it. So a lot of times if we send in a good writ, we’ve waited enough time and we send in the appropriate measures in terms of trying to contact the VA to get the decision. A lot of times the VA will just do what they need to do because that’s a lot easier than having to explain why they haven’t.

Nathan Guin: So they’ll just take the case, issue a decision and then you can kind of go forth from there. It’s not foolproof but they have been really helpful for us. Still, it’s kind of difficult to pin down a reasonable time for VA purposes for each step, so that sometimes can be tricky. That’s how they process and it’s been really helpful in a lot of cases, we’ve gotten decisions off of those where I don’t think we would have otherwise.

Cindy Speaker: That’s great. That’s great. I think you’re really touching this, but what are the factors that are taken into account to determine whether or not the writ is granted?

Nathan Guin: There’s like five or six different considerations from a case that the court decided awhile back. Among those, economic considerations, basically they say most of the time if there’s a delay, if it doesn’t concern health and human welfare, then delays are more reasonable. But in cases such as VA disability claims, health and human welfare is at stake, and so that should be taken into consideration in terms of what reasonable time is for a decision to be made. All of them are governed by rule, reason in terms of what the timelines may be, so you have to take that into consideration.

Nathan Guin:  You also have to basically take into account and address competing VA priorities and make sure that no other competing or higher priorities will be prejudiced by your writ being granted or the decision being made in your case, among others. There’s a few others but those are the main ones, so it can get a little tricky in that regard, you have to cite to a number of different issues in terms of if the veteran’s having financial problems, what their competing interests would be, how many issues are at hand in that particular appeal, all those are things that you would want to consider and address within the actual petition for a writ.

Cindy Speaker: Okay. So the important thing to know is that there is help available with all of this, because you can handle this for the veteran, correct?

Nathan Guin: That’s correct. So we’ve been doing writs for a while now, and there’s actually a decision that came out a few months back that changed them up, so we’ve had to kind of adjust the way we do them, which we’ve done, so we’ve been really cranking out a lot of them recently. Waiting for decisions to come back on those and kind of see what happens there, but something that we are pretty well versed in and that we’re continuing to learn about and continuing to improve on.

Cindy Speaker: It sounds like it’s very helpful. It’s helpful to go through this process, that you’re getting results.

Nathan Guin:  Absolutely, we are. And if for some reason it’s denied or dismissed or whatever the case may be, it’s all about representing the interests of your veteran. So it’s up to us to put it out there for the VA. If they don’t see it our way, sometimes that happens, but at the end of the day we can tell the veteran hey, we’re really exhausting all of our remedies here, we’re trying everything we can to get a decision, and that’s really … most of the veterans we represent feel like they aren’t heard, that they’re not cared about, that they’re not listened to by the VA at all. And so this is just another way where we can try to further their interest and really show them hey, we’re dedicated to you getting a decision in your case no matter what it takes.

Nathan Guin: We’ll go to whatever court we have to to try to figure out how we can get a decision quicker, and hopefully get your benefits quicker so that you can kind of move on and not have to worry about the VA anymore, because I know most of our veterans just want to get their benefits and be done with them.

Cindy Speaker: Sure, sure. Nathan, if someone wants to reach out to your firm, how can they do that?

Nathan Guin: They can give us a call, our number is 251-343-1111, and they can also go to www.gardberglaw.com. We’re based in Mobile, Alabama but I always like to admit it that the VA is an administrative law system, so we are all accredited here through the VA, meaning that if you are in Texas, if you’re in Minnesota, if you’re in Oregon, wherever you are, if you’re somewhere else in the world and you need help on a VA claim, we’ll be able to do that and handle that for you. The geography of it is really not an issue for us, so it’s great, we can help people all over the place and really enjoy getting to help people from all over the country and all over the world.

Nathan Guin:  So if you need help and you’ve seen this video, give us a call and we’ll do our best to help you out.

Cindy Speaker: Excellent. Thanks for being with us again, Nathan.

Nathan Guin: Absolutely, it’s my pleasure.

Cindy Speaker:  Great. For those of you watching either live or by replay, if you have questions, comments, you can put them on this page. But you can also call the firm and that might be the best thing to do. Just get to Nathan or one of the other attorneys, let them help you through this process. Complicated stuff.

Nathan Guin:  It definitely can be, so give us a call, for sure.

Cindy Speaker:  Thanks everybody and have a great day.

 

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