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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

HadIt.com Anniversary 24 years on Jan 20, 2021

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The BVA remanded my claim for loss of use lower extremities to the RO via appeals management center 3/13/2014 the reason being they say the records show I have never been afforded a VA examination I filed this claim 12/2008 on 3/11/2010 i had a VA compensation & pension examination which has been totally OverLooked by the RO,reconsideration and the BVA. It was remanded from the CAVC 6/13/2013 informing them of there mistake . The Court states they made the error for overlooking the favorable evidence therefore i think a decision should be made with the overlooked evidence not a new examination. Below the Court Conclusion.

The March 2010 VA examiner opined that Mr. xxxxxx had loss of use of his lower extremities that was related to his service-connected cervical and lumbar spine disabilities and painful feet. See R. at 801 ("It is at least as likely as not that the cervical condition is the cause of loss of use of the lower extremities, causing walking limitation."), 803 ("It is at least as likely as not that the lumbar condition is the cause of loss of use of the lower extremity functioning causing walking limitations."), 804 ("It is least as likely as not that part of the cause of loss of use of the lower extremities is due to the painful feet."). Although the Board mentioned the

March 2010 VA examination, it did not expressly discuss the foregoing statements, which tend to support Mr.xxxxxxx's claim that he is entitled to SMC for loss of use of his lower extremities. The Board's failure to account for this potentially favorable evidence thus renders inadequate its statements of reasons or bases for its decision. The Court therefore concludes that remand is warranted, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate").
On remand, Mr. xxxxxx is free to present any additional argument and evidence pertaining to his claim for SMC to the Board in accordance with 12 Vet.App. 369, 372-73 (1999) (per curiam order).v 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112 Upon consideration of the foregoing, the portion of the April 24, 2012, Board decision denying entitlement to SMC for loss of use of the lower extremities is SET ASIDE and the claim is REMANDED for readjudication consistent with this decision.

Thank you.


Dated: June 12, 2013

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I did not see anything in there that mentioned a new examination. The instruction is to re-adjudicate. Have they asked for a new exam in seperate correspondence?

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The BVA remanded my claim for loss of use lower extremities to the RO via appeals management center 3/13/2014 the reason being they say the records show I have never been afforded a VA examination I filed this claim 12/2008 on 3/11/2010 i had a VA compensation & pension examination which has been totally OverLooked by the RO,reconsideration and the BVA. It was remanded from the CAVC 6/13/2013 informing them of there mistake . The Court states they made the error for overlooking the favorable evidence therefore i think a decision should be made with the overlooked evidence not a new examination. Below the Court Conclusion.

The March 2010 VA examiner opined that Mr. xxxxxx had loss of use of his lower extremities that was related to his service-connected cervical and lumbar spine disabilities and painful feet. See R. at 801 ("It is at least as likely as not that the cervical condition is the cause of loss of use of the lower extremities, causing walking limitation."), 803 ("It is at least as likely as not that the lumbar condition is the cause of loss of use of the lower extremity functioning causing walking limitations."), 804 ("It is least as likely as not that part of the cause of loss of use of the lower extremities is due to the painful feet."). Although the Board mentioned the

March 2010 VA examination, it did not expressly discuss the foregoing statements, which tend to support Mr.xxxxxxx's claim that he is entitled to SMC for loss of use of his lower extremities. The Board's failure to account for this potentially favorable evidence thus renders inadequate its statements of reasons or bases for its decision. The Court therefore concludes that remand is warranted, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate").

On remand, Mr. xxxxxx is free to present any additional argument and evidence pertaining to his claim for SMC to the Board in accordance with 12 Vet.App. 369, 372-73 (1999) (per curiam order).v 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112 Upon consideration of the foregoing, the portion of the April 24, 2012, Board decision denying entitlement to SMC for loss of use of the lower extremities is SET ASIDE and the claim is REMANDED for readjudication consistent with this decision.

Thank you.

Dated: June 12, 2013

NOW - they actually have to consider the evidence above !

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  • 2 months later...

I really want to hear how this turns out. I had a successful BVA examination a few years ago in Oakland CA.

Rich

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