so
hello and welcome to cck live today we are going to be doing something a little bit different
we're going to be doing a summary of one of our recent cases that we won in court joining me today
is caitlin dagnan who is an attorney at cck and she primarily represents veterans at court and
i should have introduced myself my name is jenna zellmer i'm a partner here at chisholm chisholm
and kilpatrick and we are excited to talk to you today about um this client's case so caitlyn
before we kind of talk about the details of the case why don't you kick us off with a
little bit of background on the court of appeals for veterans claims sure so the court of appeals
for veterans claims or cabc is a federal court located in washington d.c that is dedicated just
to adjudicating the appeals of claimants who have been unsuccessful in their cases before the board
so if a veteran receives a decision from the board and they disagree with that decision
they have the right to file an appeal with the court the court is then going to review that
case and ultimately issue a decision that affirms vacates or remands the board's ruling now this is
based on a closed record right so we can only make arguments to the court based on evidence
that has been previously been submitted to before the board um and the result that we're generally
looking for is called a remand that means that there's some sort of legal error in the board's
decision and that's why it needs to be sent back basically for the board to make a new decision but
in rare circumstance circumstances the court can also refor reverse a board's decision
um but again that's very rare and the skilled team here at cck handles a wide range of cases
both before the board and at the court our knowledgeable advocates are qualified to assist
veterans with appeals at any stage and follow the case all the way through the court system
right that's a good point and that goes back to my earlier point about how caitlyn you practice
primarily at the court which is why you know we've tagged you to do this court win summary
um i'm sure if you've seen our other videos you've seen a lot of our other attorneys and advocates
who practice both at the court and the va um so we're excited to have you today caitlin
so next we're going to break down the specifics of a recent court case that cck secured benefits
for one of our clients i'm going to talk a little bit about the facts and then caitlyn i'm going to
turn it over to you to talk about the arguments um so we have a veteran as a client who served in the
u.s army from november 82 to august 92 so almost a full ten years um and he was a crew member um
in the army and he served in saudi arabia he won multiple medals and accommodations for his service
after service um in 2009 he underwent surgery for a service related low back condition so we have a
lot of some a lot of court excuse me a lot of videos on how to get service connected how to
get ratings um and so i would encourage you to go back and take a look at those cases but in
this case the veteran had already obtained service connection and his condition had
deteriorated to the point where he needed additional surgery and so he went to a va medical
center and during that surgery the physicians inserted an intervertebral cage around his spine
now prior to the procedure the veteran had signed a consent form treat consent for treatment form
which essentially says you know you are acknowledging that va is going to perform
perform surgery and you're going to acknowledge the known risks involved in that surgery
so following surgery the veteran had extreme back pain and just a couple months later he
went in for an mri and that revealed that the introvertible cage that had been inserted around
his lumbar spine had actually broken apart and was protruding into his spine and that was causing
severe spinal canal stenosis and that was the cause of the extreme pain so he actually had to
go undergo a second emergency surgery to repair the cage and remove that broken piece um and so
where where does that leave us caitlin so because of the effects that the veteran
was uh experiencing he subsequently filed for disability benefits under 38 usc 1151
for an additional back disability that he suffered as a result of the surgery performed by va um 1151
is a statute that allows for veterans to receive compensation for a qualifying additional condition
as if it were a service connected condition if they can meet certain conditions however va did
deny his claim and even after he appealed to the board he was again denied compensation in may of
2020 and what happened is that the board had found that what occurred during the veterans surgery
was a reasonably foreseeable event despite the fact that there was favorable medical evidence
that the breaking of that introvertible cage was not something that a healthcare provider
would typically expect to occur so essentially the board determined that because there's always
a possibility of complications with back surgery this type of an event is reasonably foreseeable
however that is contradicted by va's own regulations which defines an event not
reasonably foreseeable as one that is not completely unforeseeable or unimaginable
but one of reasonable health care provider would not consider to be an ordinary risk
so with the help of cck this veteran challenged the board's decision by filing an appeal at the
cabc and ultimately the court found that the board had clearly erred in saying that
the veteran's additional disability which was again caused by that va surgery was reasonably
foreseeable and that the board had discounted favorable medical opinions in the process and so
ultimately this was one of those rare cases where the court ruled to reverse the board's finding
that the event was reasonably foreseeable and actually remanded the matter for the board to
award benefits based on the veterans 1151 claim so that was one of those very rare circumstances
where the court did decide to reverse and and remand to direct the board to grand benefits right
and i think that's why we chose to highlight this one today because it's you know it's not every day
that we see the court tell va to award benefits and so it's really exciting from our perspective
you know often we have veterans who are frustrated with the process and ultimately just get a remand
back from the court to the board um and that is not you know i said just and that's how how
veterans think of it as just a remand but that is not um you know a bad result in most cases
and that's really what we want but in the rare circumstances where we get a reversal it's just
so exciting um to be able to tell the veteran that so um this is a really great court decision
now i think it's important to highlight kind of what would the veterans other options have been
if they hadn't decided to appeal to the cavc and we have a lot of videos about legacy versus
ama the appeals modernization act um but it's important to know in this context that this was
a legacy board decision and so there was no option for the veteran to file a supplemental claim
if the veteran had not appealed to the cabc that board decision that was clearly wrong
that we know today was wrong would have stood up and would have been the final board decision
the final decision on the veteran's claim and the only way that the veteran would have been able to
continue to pursue his claim was to start all over again and so that's really why the court is
so important because especially in legacy cases you know the only way to have a second chance
um or have you know get the benefits that you're entitled to is to go to the court and really ask
the court to step in and either remand or reverse the board's decision now i would recommend that
you go back and look at our videos and our blogs on the ama it's a little bit different nowadays
um because new york cases you know there is an opportunity to submit a supplemental claim
but even in that case a supplemental claim would require new and relevant evidence and so you do
have the additional burden of developing more evidence trying to get more evidence in your
in your favor when see we see in this case there was already favorable evidence and
if the board had done the right thing the first time around they would have awarded the benefits
so that just really highlights how important the court is um and that's why you know it's usually
especially when it's a legal error like this why it's more advantageous to go to the cavc
i think another uh important thing to highlight is that this really demonstrates why it's
important to hire cck or really any you know if you're if you choose not to go with cck any
knowledgeable experienced advocate because these cases are com
are complicated and the fact that it went all the way up to the court and the court had to step in
shows that sometimes you know va gets it wrong and so our dedicated team works really hard to
ensure the best possible outcome for our clients you know in this case we developed legal arguments
based on the evidence and the record and we told the veterans story in a way that
was persuasive to the court and i think that's so important to make sure that you are highlighting
what makes this veteran's story sympathetic and persuasive and so you know i'm just really proud
of the team here at cck and i'm really excited about this outcome of this case
precisely thank you so much for joining in and watching us today um please be on the lookout
for more cck case summaries and subscribe to our channel so that you don't miss any of them
thanks everyone have a great afternoon
you