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.

[broncovet]

It sounds like you have done your homework. Unfortunately, as ASKnod says, a JMR often means they send it back to RO, and the RO says, "Ok, we reconsidered it, and the answer is still no"....a "texas necktie remand party" for Veterans.

Most Vets advocates HATE remands for this reason...they dont always settle anything...its just another ticket to the hamster wheel of remand, VAro decsion, appeal, and remand. Some have to go this hamster wheel route a half dozen times.

Now, onto the issue of the RO failure to implement the Board remand. I am having this exact issue. The Board remand was about 39 pages long, and GS7's and even 9's or 12's simply dont have that long of an attention span to read a 39 page decision. I did not even like reading one that long, and it took me a couple sessions to get er done, rather than try to absorb that in one setting.

So, like yourself, the RO has failed to implement the remand EVEN after 2 tries. I will tell you what I am doing.

First, I waited 3 years. The first "post remand" decision failed to implement it all, so I appealed this RO implementation. Now, of course, the RO drags their feet.

This brings us to now. I emailed Allison Hickey about 2 months ago, and finally got an SOC (which means another denial). They never even bothered to adjuticate IU as was required by the 2012 BVA remand, even after 2 tries. Now, my plan of action is as follows:

1. Im gonna email Allison again, cite the part of the BVA remand that BOTH of the RO decisions ignored. I am sure she will contact (again) the RO director, and they will try to explain it away again.

2. Then, I will email Allison a final time, in the form of an "intent to file a writ of mandamus" for the purpose of requiring the RO to fully implement the BVA remand.

3. If no positive response, then I follow up by filing a writ with the CAVC.

AS Berta has pointed out, its not a requirement of GS 7's or GS 12's to be able to read our evidence. I think they "color code" these so that GS 7's can rubber stamp "claim denied"...after a considerable delay, of course.

Its really disgusting that we have to fight the VA for decades to get what is ours. I have been fighting them since 2002. Ask nod has fought them since 1994.

[lotzaspotz]

A writ petition can be a beautiful thing, agreed. Nine references, different dates, if you were to search my husband's Board docket number at the Board website. It starts with 94-36, so I do understand the frustration.

I guess I've grown suspicious of negotiating any deal with the VA because if it's beneficial to the VA, it's a bad deal for the veteran. A crapshoot where the VA loads the dice. That's why I asked if a Court-ordered remand carries a more serious impact than a JMR.

Edited April 18, 2015 by lotzaspotz

[broncovet]

I dont blame you for being suspicious of VA. They got that reputation the hard way..they earned it! I have learned that dealing successfully with VA is best using what I call the "teenager" method: When mom says no, ask Dad.

You can count on the left hand of VA not knowing what the right hand is doing. So, if one person says, "no", then ask another, and they will likely oblige. Its very frustrating, but you need to keep remembering: The VA is not a unified body! This means that you will often get an entirely different answer depending upon who you talk to. I have seen this over and over.

[k5one]

I am thinking that the Joint Motion for Remand would benefit the VA, by the fact that there is no new case law that the VA has to implement. A Court ordered remand can change case law, and force the VA to implement new rules. Am I correct in this? Not sure about this, but I was just trying to understand how the VA would benefit. This along with, as stated above, a joint motion for remand gives the VA an opportunity to regroup, add evidence to help them, or at least not get a 100% loss.

[Berta]

That is why any vet with a JMR should try to send them even more evidence.

A JMR does not mean they will get an award, it means they have a chance to submit more evidence.that could lead to an award.

If a vet is at the point of a JMR, that means they have put years into the claim already and cannot overlook a single thing they could possibly do, to succeed.

"A Court ordered remand can change case law, and force the VA to implement new rules"

Only a precedent setting CAVC decision can alter VA case law.

[Gastone]

The Vet's appeal is at the CAVC level indicating that the BVA has continued a Denial, right. Without going in and reading the BVA/CAVC regs, the "90 day New & Material Evidence cutoff" letter received before the Vet has his BVA hearing, precludes any N & M Evid while an appeal to the CAVC is pending, right?

If that's the case and the Vet has some N&M Evid that he thinks is a deal maker, I can understand him or his attorney wanting JMR. Just wondering how often, after 5 or so years that a Vet or his attorney discovers "N&M Eidence" that managed to elude them up until this time? As for what's fair to other Vets and only so many CAVC Judges. I'am a cynic. After waiting years for your shot at the CAVC, I trust the Vet and his attorney are only concerned about the Vet prevailing at the CAVC. Being represented by an attorney, free or full price, this is an adversarial court case. The VA's Attorney is not going to agree to anything, that harms his Primary Client, the VA.

What kind of Time frame is common for a JMR decision and return to CAVC if denial is continued?

Semper Fi

Gastone