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Cavc Remand


alexx

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Just wondering if any one knows whats happens after CAVC remands my case?

What are the odds the VA will pay up?

Will it take another 5 years before i hear something back?

If someone could review my case and give me an idea what to expect next.

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  • HadIt.com Elder
Just wondering if any one knows whats happens after CAVC remands my case?

What are the odds the VA will pay up?

Will it take another 5 years before i hear something back?

If someone could review my case and give me an idea what to expect next.

Alexx,

Did they remand with instructions?

Mike

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  • HadIt.com Elder

It goes back to your VARO or sometimes the AMC if it came from there. Rermands are supposed to have some kind of priority.

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If someone could review my case and give me an idea what to expect next.

alexx,

You can post your case minus the personal info such as name, SSA number, etc...

and probably get some responses on it.

I am moving this topic to the Claims/Benefits Research Forum.

carlie

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I am echoing what Mike asked-is there anything they asked the VA to do that you could do yourself?

Often a CAVC remand can open the door for more evidence- a CAVC remand is far better then a final CAVC denial.

Odd thing about CAVC-I had a case there many years ago and immediately got phone calls and letters from lawyers.I asked one of them how he learned of my case. As soon as a case goes on the CAVC docket it becomes public info with name, address, etc of the claimant.

All cases are listed there at the CAVC web site with this information.

It would be great if we could read the case-you can cover or edit the personal info to scan and post here as Carlie suggested-or if we have your last name and/or the CAVC docket number we can read it off the CAVC web site.

The CAVC site has no C file or SSA numbers at all- just our name and address.I think if you advise the CAVC prior to their preparing the Docket that you want to remain anonymous, they will still post the case but maybe just under an initial or something.

Did you have legal representation at the CAVC?

I helped a lawyer with his first CAVC case.He got a remand for the vet and was thrilled with that.

The claim was not a good one at all and I found errors that the BVA made that caused the remand.Legal errors by the BVA that had to be resolved.

With the remand however- if the vet could send more evidence - then there was a slight possibility of success.This case was not remanded on merit but on error.

Still a remand at this level is not easy and I commend you for getting one from the CAVC.

Edited by Berta
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sorry it has taken so long to get back but this is my Case Number:09-636 at the cavc.

Any help would be greatfull.

A lil side note: I opened a new claim (same conditions) at the same time i appealed to the cavc. The RO did give me another 10% for the left ankle(not sure if that helps or hurts)

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The CAVC docket numbers usually have 4 digits after the hyphen-I could not find this case at the CAVC.

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my remand, any opinions

JOINT MOTION FOR VACATUR AND REMAND

Under U.S. Vet. App. Rule 27, Appellant, Deric Kulbiski, and Appellee, Eric K. Shinseki, Secretary of Veterans Affairs, through their undersigned representatives, respectfully move the Court to vacate and remand the February 3, 2009, decision of the Board of Veterans’ Appeals ("Board"), which denied entitlement to (1) a disability rating in excess of 20 percent for Appellant’s service-connected residuals, posterior process talus fracture, left heel, with left ankle flexor hallucis longus ("FHL") tendonitis, degenerative joint disease and mild instability, and (2) an initial rating in excess of 10 percent for service-connected left knee patella chondromalacia. See Record Before the Agency ("R.") at 3-16.

The parties agree that vacatur and remand is warranted for both claims because of problems with the Board’s stated reasons or bases for its determinations. For the purposes of this remand only, the parties accept the statement of facts in the Board decision, except as otherwise noted below.

- 2 -

BASES FOR REMAND

  1. A. Left Knee Evaluation
The parties agree that the Board failed to adequately explain in light of all favorable evidence of record whether a separate rating was warranted for instability of the left knee. See Daves v. Nicholson, 21 Vet. App. 46, 51 (2007) (noting that Board "cannot reject evidence favorable to the claimant without discussing that evidence"). In April of 2008, Appellant complained that his left leg "gave out". R. at 78. In May 2008, Appellant complained to his primary care physician that his left leg intermittently "gives out" and felt "odd" all the time. R. at 75. He stated that intermittently his leg felt like it was going to sleep. Id. A June 2008 physical examination revealed a medial meniscus tear with moderate laxity of the anterior cruciate ligament (ACL) in the left knee. R. at 30. The examiner ordered a left knee brace and estimated that three to four sessions would be necessary to "make sure his knees are stabilized." Id. At a September 2008 Board hearing, Appellant testified that his left leg would give out on him "at least twice a week." R. at 38.

In the decision on appeal, the Board found that there was no evidence of "instability of the knee," R. at 13, but did not discuss the evidence described above regarding Appellant’s lay statements regarding his complaints of apparently worsening of his condition following the March 2008 VA examination. The Board erred where it did not provide adequate reasons or bases for its denial

- 3 -

of an increased rating for the left knee disability where it did not discuss this favorable evidence. See Daves v. Nicholson, 21 Vet.App. at 51; see, e.g., Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (noting that new examination may be required "where the record does not adequately reveal the current state of the claimant’s disability").

  1. B. Left Ankle and Foot Evaluation
The parties agree that the Board failed to adequately explain how it applied the rating schedule to reach a single award with a 20-percent evaluation for Appellant’s disabilities of the left leg, ankle, and foot. The Board is required to provide reasons or bases for its findings, on all material issues of fact and law presented by the record, adequate to enable the claimant to understand the basis of the Board’s decision and to allow for meaningful judicial review. See Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990).

The parties agree that the Board did not adequately explain how Diagnostic Code 5284, for "Foot injuries, other," see 38 C.F.R. § 4.71a, could be used to account for Appellant’s left leg and ankle dysfunction, and erred in failing to consider whether a separate rating could be assigned for his disability affecting the musculature of the left lower extremity. At a February 2006 VA examination, the examiner noted "tenderness throughout the posterior tibial musculature" which he appeared to relate to Appellant’s service-connected condition. R. at 215. The examiner opined, "the veteran has experienced calf muscle tendonitis ever since the 1991 surgery." R. at 217. However the Board

- 4 -

did not discuss whether Appellant’s symptoms warrant a separate rating under 38 C.F.R. § 4.73, DC 5311 ("The Foot and Leg," Muscle Group XI). Thus, vacatur and remand is warranted. On remand, Appellant is entitled to submit additional evidence and argument, Kutscherousky v. West, 12 Vet. App. 369, 372 (1999) (per curiam order), and VA is obligated to conduct a critical examination of the justification for its previous decision. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The Board is further directed to obtain copies of the Court’s order, Appellant’s brief, and this motion to incorporate them into Appellant’s claims file for appropriate consideration in subsequent decisions on this claim. The parties request that the Court explicitly incorporate the terms of this motion into any resulting order, such that Appellant will have an enforceable right to compliance with those terms. See Breeden v. Principi, 17 Vet. App. 475, 479 (2004). WHEREFORE, the parties respectfully move the Court to set aside the Board decision of February 3, 2009, and to remand this claim for readjudication. Respectfully submitted, FOR APPELLANT: /s/ Glenn R. Bergmann GLENN R. BERGMANN March 16, 2010 /s/ Thomas Polseno Date THOMAS POLSENO

Bergmann & Moore LLC

7920 Norfolk Ave., Suite 700

Bethesda, MD 20814 (301) 290-3106

- 5 -

FOR APPELLEE: WILL A. GUNN General Counsel R. RANDALL CAMPBELL Assistant General Counsel /s/ David L. Quinn DAVID L. QUINN Deputy Assistant General Counsel March 16, 2010 /s/ Monique A. S. Allen Date MONIQUE A. S. ALLEN Appellate Attorney Office of the General Counsel (027G) U.S. Dept. of Veterans Affairs 810 Vermont Avenue, N.W. Washington, DC 20420 (202) 639-4787 / 4800

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  • HadIt.com Elder

I had 4 issues awarded joint remand at the CAVC in December 2009. My VARO recieved my case file 3 months ago. The VARO and American Legion can only tell me it's there. They think no one has opened it yet to see what they were ordered to do. I'm so sick of this crap. These 4 issues are from a 2000 appeal............I hope you have better luck.

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This really sucks!! 2000, who else in government would wait 10+ years for justice?

See you are 100% rated, are you looking for SM's?

I had 4 issues awarded joint remand at the CAVC in December 2009. My VARO recieved my case file 3 months ago. The VARO and American Legion can only tell me it's there. They think no one has opened it yet to see what they were ordered to do. I'm so sick of this crap. These 4 issues are from a 2000 appeal............I hope you have better luck.
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  • HadIt.com Elder

I was 50% from 2000-2002, 70% from 2002-2007 and 80% in 2008. I recieved TDIU in 2009. The four issues from 2000 if rated higher from 2000-2009 will yield back pay. The clock has stopped in 2009 because they finally gave me 100%.

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Hi folks --

I just won another BVA remand from the CAVC, representing myself. This is an effective date appeal, submitted in 2002. This is my second time at the CAVC, so I have a good idea what to expect. I'm happy to share what I know; if anyone's interested, feel free to email me.

I wanted to share a couple of lines from the Court's decision, that I thought might be of interest:

"Not only is the Board's analysis incomplete, it appears to be factually incorrect and internally inconsistent with earlier descriptions of the available evidence"

"Notwithstanding the clarity of the pro se appellant's arguments, the Board, in the decision on appeal, has again failed to adequately adjudicate the scope of the appellant's 1971 claim"

I expect that these reflect a common problem with the BVA that others may find familiar -- the inadequacy of the "reasons and bases" section.

Good luck to all with your appeals!

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GOOD for you!!!!!

A CAVC remand also can open the door for additional evidence.

One thing we cannot stress enough here is the fact that the CAVC looks for legal errors in BVA decisions.

Period. They do not weigh the evidence or consider anything at all not in the BVA record.

If a BVA deision is detrimental to a veteran because it contains legal errors the CAVC must remand the claim for correction of these errors.

I hold to this- and have had difficulty in explaining this to some BVA, CAVC claimants over the years-

When the BVA remands a claim via CAVC or BVA direct remand- the claimant themselves should follow the remand-

in other words if the BVA orders the RO to get this and that-

the claimant should attempt to get those records too.

When the BVA ordered another C & P on my AO claim to be done by a cardiologist-I got a cardiologist.That is I contacted one, paid him, and began to copy the medical records etc again for his IMO.

As it happened the C & P was done fast by a PA ,not a cardio doc, and I knocked it down as soon as I got copy of it- the cardiologist had not prepared my additional IMO yet- but I had sent to the BVA the very same evidence (my RO historically removes my stuff from my C file)I had sent to the cardio doctor and used the same medical argument I assumed this IMO doctor would use.

The BVA award came in the mail very soon after they received the PA C & P and my additional evidence.I had to call the cardiologist and tell him to hold off.Luckily I even got back some of my IMO money.

This is what I mean by following the remand yourself. In my responses to the BVA (I gave up on sending anything to the RO at that point)I consistently referenced the fact that my VCAA letter was illegal and that the C file contained (I supplied them again because they were probably gone by time file went to the BVA) 3 additional IMOs that clearly awarded my claim yet the VARO had consistently igorned this probative evidence.

You did very well to obtain another CAVC remand.

It goes to show we MUST be proactive and I too ,as Pro se in many situations, did better than I would have done with a lawyer.

I advise getting a lawyer when at the CAVC in most cases however.

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Thanks Berta.

There's one other point of which you reminded me, that hit home only with this most recent CAVC decision. Besides additional evidence, with remand to the BVA it's also possible to submit additional argument. After so many appeals, I have gotten into the habit of reiterating all my arguments anyway. But as noted in Best v. Principi, 15 Vet.App. 18 (2001), the Court renders its decisions on the "narrowest possible grounds," which means that they are not required to address every issue raised in the appellants' briefs. As the Court observes in that case, "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication." In other words, the appellant needs to present those issues to the BVA upon remand, thus triggering the Board's obligation to address them, as well as to preserve those issues for appeal to the CAVC if the claim remains denied after remand.

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