Court Ordered Remand Vs. Joint Motion For Remand

[lotzaspotz]

Do any of you think that there's a difference between a CAVC-ordered remand vs. a negotiated voluntary remand between the veteran and the VA before it reaches the bench at the CAVC? I've wondered if the VA sees any advantage to a JMR that it doesn't have in a CAVC-ordered remand. Otherwise, why wouldn't the VA just take its chances with the CAVC instead of sending the appeal back to the Board voluntarily?

What's their advantage in a JMR that doesn't exist in allowing it to be heard at the CAVC, especially considering all the time and effort the VA spends in denying at the RO and defending the denial when it's appealed to the Board? You'd think after all that, they would feel strongly enough to never enter into a JMR, since no new evidence can be introduced at the CAVC, therefore, no surprises.

[Berta]

With a JMR, More evidence can be brought in!

There is a good discussion here on JMRs:

[Gastone]

Never been there! However have had a wee bit of civil court experience which I realize doesn't really count toward VA Courts. With that said, "Court Ordered" anything usually carries more weight. If a Vet is represented by an attorney at the BVA/CAVC it is no longer a NON-Adversarial process. Just my thinking, but I would prefer the CAVC Judge to "ORDER" the Remand. All Judges take failure to comply with their ODERS in a timely fashion as a serious Faux Pa by either side. Sans the Court Order, VA are left to their own time frame, don't think that would be the best for the Vet.

Semper Fi

Gastone

[broncovet]

The VA never agrees to a remand, unless they are pretty sure they are losing. A remand is "damage control", with a desperate VA trying to limit the damage.

A JMR is a "settlement". Its good on several levels. Most importantly, it conserves judicial resources. We only have so many judges and a very long line of Veterans cases waiting. Rather than waste the judges time, the lawyers often agree to certain points which they dont contest, and they often ask the Veteran to give up something in return.

There is pressure to reduce the appeal backlog. If the parties can agree, then the judge does not have to decide the case and works on those instead which remain in dispute.

Its mostly about fairness to other Vets who are waiting their turn for the judge to decide his case. If a case ahead of his gets "settled" without the judge even putting much time in it, then this saves time for the Veteran..his case will be heard sooner.

The Veteran is not "required" to accept the JMR. He can hold out for the judges decision which could be less favorable or more favorable than the remand offer. However, there is almost always at least 2 incentives for the Veteran to "settle".

1. Time. The remand offer moves his case along in a forward direction, and he would have to wait still longer for a judge decsion. This is a very big deal if you are homeless, or hurting financially. Half a loaf of bread is better than going hungry.

2. Security. There is a tremendous relief when "its over" and you agree to the remand. Its stressful to have your case pending..and waiting, and waiting...worrying.

Personally, I agreed to a JMR. While I was not all that happy with what the VA offered, I accepted in anyway, because:

1. I had a free attorney, and know its a "remand"..that if I do not like the VARO decision (after the remand), I can still appeal.

2. It was probably a mistake on my part getting a free attorney, and I finally realized this. Why? The attorney appealed just a small portion of my decision...not at all what I would have appealed on my own. This law firm wants to have a 90% success ratio, and they frankly do not take cases unless they know they can win them. So, they only appealed an issue they knew they could win, and did not go after what I called the real meat of my claim, because they knew their success rate was much lower. They appealed that the BOard decision did not have an adequate "reasons and bases" for decision. That was a no brainer, as the Board decision did not explain the reasons as required. They either give reasons or they dont, and they did not. And, my attorney used that as some leverage to get me some other concessions. They KNEW they would win. And, the VA did make some concessions, just not what I wanted. So, I got a small slice of pie, a litttle retro, and the battle continues. And the attorneys got EAJA fees, and kept their record of a high percent of wins intact.

I knew by accepting this piece of the pie, I got a nice dessert, and could still fight for the rest of the pie. Frankly, I needed the money, and took the pie slice, knowing well I would be hungry again in a short time. A bird in the hand was worth 2 in the bush.

Edited April 18, 2015 by broncovet

[broncovet]

I agree this is a very good question, lotsaspotz. And it is one many Vets will need to decide, on an individual basis, in their particular case. Frankly, I see it that Vets have a family needs to consider first. He knows his family much, much better than I do, so I would be with him whichever choice he makes..JMR or court ordered remand.

The Vet, on one hand, may be in desperate need of immediate funds to keep a roof over his family's head. And a JMR may do just that, sometimes.

Or, he may be looking for the long term..where he wants to leave his family an inheritance, and there would be little or no inheritance without an out and out win at the court. For some Vets, it may be a little of both..they need money now, but would like the rest of what they deserve later, too.

[broncovet]

Of course, I also agree with Berta. It can be absolutely critical to the outcome that "new evidence" can be submitted. You see, at the CAVC level, the judge decides the case based on the evidence before the board. No new evidence, unless there is a remand which permits new evidence. A great example is a remand for a C and P exam. The VA says, "gee..there is no evidence of a nexus". Denied. On remand, the judge says, "well, give the Vet an opportunity to provide a nexus, by ordering a c and p exam", then, and we will see if there is a nexus, boneheads.

[lotzaspotz]

In 2011, my husband agreed to a JMR at the CAVC on a lumbar claim, along with several other issues . We agreed to drop a couple of appeals to supposedly expedite that one. The Board ordered a new C & P, however, the RO did not comply with the Board's directives and the issues that provided the basis of the appeal were not addressed in that exam. However, the Board did not challenge the C & P and again denied the appeals, so back they went to the Court. We were eventually approached again for a JMR on the lumbar claim if we dropped the remaining two other issues to expedite the lumbar appeal. We declined, it went to the Court, and the Court remanded the lumbar and one of the other appeals, and denied the remaining appeal. That happened last month.

This situation is not a question of needing more or stronger evidence. It's a question of the RO not conducting a proper C & P or records review, and the Board not calling them out on it, even when the Board told them what was agreed upon as the basis for a JMR.

The reason I ask this is because I suspect the JMR is, as Asknod puts it, an opportunity for the VA to assess the lay of the land in order to re-fit the veteran for another neck tie (or something similar, apologies if I didn't get the metaphor correct).

I know why a veteran might jump at the chance for a JMR. I am wondering what's in it for the VA. There's got to be a reason why the VA would not want the CAVC judge to hear the case, otherwise, why bother with a JMR unless it gives the VA the ammunition to deny again at the Board.