CONTACTS
SUBJECTS
Bergmann & Moore David Adams Attorney Hired File Appeal
0603 -
0603 - ..
0604 - Summary/Objective
0605 -
060501 - Follow up ref SDS 84 0000. ref SDS 83 0000.
060502 -
060503 -
060504 -
060505 -
060506 -
060508 - ..
0606 -
0607 -
0608 - Background
0609 -
060901 - On 100604 1520 received notice from VA dated 100525 granting award of
060902 - Pension benefits for total and permenant disibility (TAPD) citing CABG
060903 - and achalasia. ref SDS 3 RM9N
060905 - ..
060906 - On 210311 1012 letter to Lauren in Primary Care at VAMCSF, requesting
060907 - assistance resolving dispute pension dispute. ref SDS 10 WG54
060909 - ..
060910 - On 220726 101741 received letter dated 220714, from VA denying appeal
060911 - by Nathan Johnson to convert Pension claim on 091222, to compensation.
060912 - ref SDS 26 YT8L
060914 - ..
060915 - On 220728 0749 called Law Offices of Katrina Eable and left message
060916 - about this matter. ref SDS 27 I24L
060918 - ..
060919 - Only remedy seems to be filing...
060920 -
060921 - Appeal to Court of Appeals for Veterans Claims, and this must
060922 - be done OB 221111
060924 - ..
060925 - ...shown at bottom of VA order in the record on 220726 1017,
060926 - ref SDS 26 0K7L
060927 -
060929 - ..
060930 - On 220726 101741 sent letter to Nathan explaining errors in VA
060931 - decision, ref SDS 26 9Q8O,
060933 - ..
060934 - On 220726 101741 received letter from Nathan recommending calling
060935 - Katrina Eagle. ref SDS 26 EM9I
060937 - ..
060938 - On 220826 1522 Katrina Eagle called responding to the letter on
060939 - 220726. ref SDS 29 KB5N She submitted a letter with guidance on how to
060940 - submit notice of appeal to the VA Court of Appeals. ref SDS 30 ZP7M
060942 - ..
060943 - On 220922 0828 filed notice of appeal with Veterans Court of Appeals.
060944 - 220922 0828, ref SDS 32 KB5N
060946 - ..
060947 - On 230126 1022 called B&M talked to Yoon Park, who said the firm had
060948 - received claim documents from VA, ref SDS 55 8BDN Talked to Sarah
060949 - Burkey who said she will notify VA that B&M accepts the documents for
060950 - the purpose of filing an appeal. ref SDS 55 QF9G
060952 - ..
060953 - On 230623 0948 received principal brief from Sara at B&M appealing
060954 - disability compensation claim effective date to 091218. ref SDS 69
060955 - EQ4G
060957 - ..
060958 - On 230815 1527 letter from Sarah at B&M saying filing to increase
060959 - rating for medical disability compensation will not conflict with
060960 - litigation setting change compensation date to 091218. 230815 1527,
060961 - ref SDS 70 EQ4G
060962 -
060963 -
060964 -
060966 - ..
0610 -
0611 -
0612 - Progress
0613 -
061301 - Claim documents in this case were received from Nathan on 220830 1616.
061302 - ref SDS 31 FR9H
061304 - ..
061305 - See also letter on 220726 1017. ref SDS 26 ES52
061306 -
061308 - ..
061309 - Received printed letter from Hannah submitting court's decision in
061310 - Welch, see below. ref SDS 0 025K This follows up call from Hannah on
061311 - 240430 1316. ref SDS 85 666M
061313 - ..
061314 - Need computer file for this; sent letter to Sarah, because do not have
061315 - contact with Hannah, and saying...
061316 -
061317 - 1. Subject: Re: [EXTERNAL] Bergmann & Moore LLC - Follow-Up
061318 - Date: 2024-05-09, 20:18
061323 - ..
061324 - 2. Dear Sarah,
061326 - ..
061327 - 3. Today, received B&M's letter dated 240501, signed by Hannah
061328 - Youh. Can you please ask Hannah to send her computer file for
061329 - this letter, as you did for your letter on 240409, below, and
061330 - all prior correspondence. Hannah's letter is 3 pages of small
061331 - font single-spaced text, a lot of words. Without the computer
061332 - file, I have to type it over again to incorporate with the rest
061333 - of the case record.
061335 - ..
061336 - References Sarah's letter on 240409 2138, ref SDS 84 KZ6M, and more
061337 - recently David Aims' letter on 240501 0921. ref SDS 86 IL3F
061338 -
061339 - [On 240510 0454 received letter from David Ames
061340 - transmitting the computer file for the letter from Hannah
061341 - dated 240501. ref SDS 87 KZ6M
061343 - ..
061344 - Letter from Hannah at B&M contnues...
061345 -
061346 - 4. Hannah called the other day, and then asked David Ames to call.
061347 - David called and sent a letter on filing another supplemental
061348 - claim. I've had some medical issues the past week or so.
061349 - Flipped into atrial flutter (AFL), for 7 days, with Doctor
061350 - Pellegrini trying to get me into the Cath Lab to neutralize the
061351 - electrical circuits. The Cath Lab was booked with emergency
061352 - inpatient cases, so my case could not be treated. Now I'm out
061353 - of AFL, but still getting daily "Unclassified" arrhythmia EKG
061354 - reports, so waiting for AFL to recur, essential for treatment
061355 - with cardiac ablation. Anyway, hoping to follow up on David's
061356 - helpful letter next week. Honestly, I don't know if this
061357 - filing is supplemental to filing on 2009 12 18, or the one 10
061358 - years later?
061360 - ..
061361 - This relates to Sarah's letter a month ago saying to file a
061362 - supplemental claim and cite Nehmer Training Guide, reported on 240409
061363 - 2138. ref SDS 84 S142
061365 - ..
061366 - Letter to Sarah continues...
061367 -
061368 - 5. I finally read through the court's decision. Can you please
061369 - point to the reference in the Court's decision that cites the
061370 - patient signed the application in the hospital recovering
061371 - 2-days after Heller Myotomy throat surgery. What weight was
061372 - this given in the final decision?
061374 - ..
061375 - 6. Tuesday, I had like the 68th EGD dilation procedure. Discharge
061376 - instructions say you cannot perform the following for 24
061377 - hours... "Do not sign legal or financial documents." This
061378 - could be a tipping point for the VA to upgrade the application
061379 - ...[signed...] on 091218, from Pension to Compensation. At the
061380 - least, the VA should have called to ask if the patient really
061381 - intended to check Pension, which yields orders of magnitude
061382 - less payment than Compensation, which was within reach of the
061383 - patient's military service in Vietnam. Clearly, the VA knows
061384 - "intent" of patients in hospitals after surgery is not
061385 - established solely by signature, but rather by context. Your
061386 - own inquiries found this is an unusual context that may justify
061387 - upgrading pension to compensation.
061389 - ..
061390 - 7. Anyway, if you cannot do anything on these matters, just wanted
061391 - to say it was a pleasure working with you. I know you worked
061392 - hard.
061394 - ..
061395 - 8. Best,
061397 - ..
061398 - 9. Rod
061399 - 925 787 5641
061400 -
061401 -
061403 - ..
061404 - Printed letter from Hannah at B&M saying...
061405 -
061406 - B&M BERGMANN & MOORE, llc
061407 -
061408 - May 1, 2024 Via Priority Mail
061409 -
061411 - ..
061412 - Rodney C. Welch
061413 - 1158 Saint Matthew Place, Apt. 103
061414 - Concord, CA 94518
061416 - ..
061417 - Re: Your VA Appeal to U.S. Court of Appeals for Veterans
061418 - Claims, No. 22-6365
061420 - ..
061421 - Dear Mr. Welch,
061423 - ..
061424 - As we discussed April 30, 2024, and with David Ames on May 1,
061425 - 2024, the Court of Appeals for Veterans Claims recently
061426 - issued a February 27, 2024, Memorandum Decision with respect
061427 - to your July 14, 2022, decision from the Board of Veterans'
061428 - Appeals (Board). (See Attached).
061430 - ..
061431 - This is the letter cited by Hannah in her call on 240430 1316.
061432 - ref SDS 85 666M
061434 - ..
061435 - Computer file for this letter was received from David Ames the next
061436 - day on 240510 0454. ref SDS 87 KZ6M The file is stored at...
061437 -
061438 - F:\05\00003\MG\GPJF\FHED\Welch_Rodney_(22-6365)-Case_Disposition_ltr.docx
061439 -
061440 - C:\sd\10\Welch_Rodney_(22-6365)-Case_Disposition_ltr.docx
061441 -
061443 - ..
061444 - The Court, however, affirmed (agreed with) the Board?s
061445 - decision, which had denied an effective date earlier than
061446 - March 9, 2022, for the award of service connection for
061447 - atherosclerotic cardiovascular disease, status post CABG with
061448 - atrial flutter status post 4 ablations and atrial
061449 - fibrillation (heart disability). On March 7, 2024, we
061450 - subsequently filed a motion for reconsideration. The Court
061451 - granted the motion for single-judge reconsideration, withdrew
061452 - the February 2024 memorandum decision, and issued the March
061453 - 27, 2024, Memorandum decision in its place. However, the
061454 - March 27, 2024, Memorandum decision continued to affirm the
061455 - Board?s decision. Please see below regarding information
061456 - about the Memorandum Decision as well as next steps about
061457 - your claim.
061459 - ..
061460 - Pursuant to the representation agreement that we executed at
061461 - the commencement of our attorney-client relationship, our
061462 - representation of your VA claim ceases once the Court issues
061463 - its final mandate on the case. As such, representation of
061464 - your claim will return to the California Department of
061465 - Veterans Affairs, the representative you had previously
061466 - designated to VA, for further processing. You should reach
061467 - out to this representative about your VA claims.
061469 - ..
061470 - Your Memorandum Decision
061472 - ..
061473 - We advanced numerous arguments on your behalf to the Court.
061474 - First, we argued that you are entitled to an earlier
061475 - effective date because your 2009 application raised an
061476 - informal claim for disability compensation based on ischemic
061477 - heart disease that remained pending and unadjudicated.
061478 - Specifically, we argued that the 2009 application included
061479 - the elements of presumptive service connection because it
061480 - noted that you were a Vietnam veteran who suffered triple
061482 - ..
061483 - Quadruple bypass...
061484 -
061485 - bypass heart surgery and ischemic heart disease was added to
061486 - the list of diseases subject to presumptive service
061487 - connection only 9 months after you filed your application.
061488 - However, the Court determined that the 2009 application for
061489 - benefits raised a claim for pension rather than disability
061490 - compensation because you checked a box to indicate that you
061491 - were applying for ?Pension? while leaving blank the boxes
061492 - for ?Disability Compensation? and ?Disability Compensation
061493 - and Pension.?
061495 - ..
061496 - Not aware form had a box for "Disability Compensatoin and Pension"...
061497 - However, it does, see ref OF 5 - 2/3s through handwritten form.
061499 - ..
061500 - Alternatively, we argued that the Board erred by failing to
061501 - adequately address whether the application was a claim for
061502 - service connection, to include as in addition to a claim for
061503 - pension. Specifically, the Board failed to note that you
061504 - filled out a portion of section B (Compensation) on the 2009
061505 - application which may indicate you intended to file for
061506 - compensation benefits. However, the Court explained that
061507 - the boxes checked in Part B reflected that you were not
061508 - exposed to herbicides or other environmental hazards and did
061509 - not have a separation examination. As such, they do not
061510 - contradict the Board's conclusion that you did not intend to
061511 - claim disability compensation, particularly when you left
061512 - blank all the other parts of Part B, including those that
061513 - asked to list disabilities related to service.
061514 - Additionally, the Court found that the 2010 RO decision
061515 - became final when you did not appeal it in a timely manner.
061516 - Thus, the Court concluded that the record supports the
061517 - Board's finding that the 2009 application for benefits
061518 - raised a claim for pension rather than disability
061519 - compensation.
061521 - ..
061522 - Overlooks intent of Congress to presume entitlement to compensation
061523 - based solely on service in Vietnam.
061525 - ..
061526 - Lastly, we argued that the Board failed to address whether a
061527 - National Academy of Sciences (NAS) update was in VA's
061528 - constructive possession at the time of the 2010 Regional
061529 - Office (RO) decision. However, the Court found that we did
061530 - not show prejudice arising from the Board's failure to
061531 - address whether it constructively possessed the NAS update
061532 - or note that ischemic heart disease was added to the list of
061533 - diseases subject to presumptive service connection 9 months
061534 - after your 2009 application.
061536 - ..
061537 - We subsequently filed a motion for reconsideration in the
061538 - Court agreed to reconsider its ruling. However, the Court
061539 - subsequently affirmed the Board?s decision. Conclusively,
061540 - in its March 27, 2024, decision, the Court determined that
061541 - the record supports the Board's factual finding that your
061542 - 2009 application contained only a request for pension and
061543 - not an informal claim for compensation
061545 - ..
061546 - Next Steps
061548 - ..
061549 - Judgement was entered in your case on April 18, 2024. After
061550 - Judgment is entered in your case, you have a right to appeal
061551 - the unfavorable portions of the Court?s decision to the
061552 - Federal Circuit in Washington, DC. After careful review of
061553 - the Court?s decision, it is our opinion that such a request
061554 - would not result in a successful outcome.
061556 - ..
061557 - Considering our impression that a further appeal will not be
061558 - successful, we will not be filing an appeal of the Court's
061559 - decision to the Federal Circuit for you. That said, you have
061560 - the right to appeal the Court?s decision to the Federal
061561 - Circuit in Washington, DC, on your own or to hire another
061562 - attorney to assist you. To this end, we want to make sure
061563 - that you understand your rights regarding an appeal should
061564 - you wish to do so. You have 60 days from the date of
061565 - judgment to file the appeal. Judgment was entered on April
061566 - 18, 2024, 60 days from the date of judgment is June 17, 2024.
061567 - Under the Federal Circuit Court rules, you file your notice
061568 - of appeal to the Federal Circuit with the Court of Appeals
061569 - for Veterans Claims (CAVC). Also, under the Federal Circuit
061570 - Court rules, the Court of Appeals for Veterans Claims must
061571 - actually receive your appeal by this date.
061573 - ..
061574 - Have 60 days to file appeal to federal circuit, i.e., OB 240617.
061576 - ..
061577 - Information on how to appeal to the Federal Circuit by
061578 - yourself may be found on-line at www.cafc.uscourts.gov. We
061579 - encourage you to call the Clerk?s office at 202-275-8000 if
061580 - you have any questions or need assistance. You can also
061581 - request assistance via mail. The Court?s mailing address
061582 - is:
061584 - ..
061585 - U.S. Court of Appeals for the Federal Circuit
061586 - 717 Madison Place, NW
061587 - Washington, DC 20439.
061589 - ..
061590 - Alternatively, as we discussed, your claim falls under the
061591 - Appeals Modernization Act (AMA). Instead of a further appeal
061592 - on your claim for an effective date earlier than March 9,
061593 - 2022, for your heart disability, you also can continue with
061594 - this claim by filing a supplemental claim form (VA Form
061595 - 20-0995) along with new and relevant evidence with VA within
061596 - one-year of the Court?s decision on your case. It has been
061597 - recommended by the attorney who reviewed your case that you
061598 - file a supplemental claim for an earlier effective date for
061599 - your heart disability instead of filing an appeal claim to
061600 - Federal Circuit.
061602 - ..
061603 - What grounds did the attorney who recommended filing a supplemental
061604 - claim, suggest to present for VA consideration??
061606 - ..
061607 - Enclosed with this letter you will find your VA claims file
061608 - which we were able to obtain on your behalf. Please
061610 - ..
061611 - Claim file not encolosed.
061612 -
061613 - safeguard these documents as they represent your one free
061614 - copy from VA. On behalf of Bergmann & Moore, it has been
061615 - our sincere pleasure to represent you at the U.S. Court of
061616 - Appeals for Veterans Claims. Should you have any questions
061617 - regarding the contents of this letter or the attachments,
061618 - please feel free to contact us. Otherwise, as noted above,
061619 - please direct all further inquiries regarding your VA claim
061620 - to the representative you had previously designated to VA.
061621 -
061623 - ..
061624 - Sincerely,
061625 -
061627 - ..
061628 - Hannah Youh, Esq
061629 - T: (301) 290-3182
061631 - ..
061632 - Enclosure: March 27, 2024, CAVC Memorandum Decision; VA
061633 - Claims File (USB Flash Drive)
061634 -
061635 -
061636 -
061637 -
061638 -
061639 -
061640 -
061641 -
061642 -
061643 -
061644 -
061645 -
061646 -
0617 -