Joint Remand from CAVC

[Pedro L]

My appeal is being jointly remanded from the CAVC to the BVA.  I am trying to determine the best way to convince the BVA judge not to remand my case back to AOJ, and to approve service connection.

JOINT MOTION FOR REMAND

Pursuant to U.S. Vet.App. R. 27(a) and 45(g), the parties respectfullymove this Court to issue an order vacating and remanding the November 30,2017, decision of the Board of Veterans’ Appeals (Board or BVA), whichdenied Appellant’s claim for entitlement to service connection for a heart condition, to include as secondary to service-connected Meniere’s disease,and a benign trigeminal schwannoma, to include as secondary to noise exposure and/or head trauma sustained in service.

BASIS FOR REMAND

The parties agree that the Board erred when it did not ensure that VA procured an adequate examination. The Secretary’s duty to assist includes “providing a medical examination or obtaining a medical opinion when suchan examination or opinion is necessary to make a decision on the claim.” 38U.S.C. §5103A(d)(1). As the Court has noted, “once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.” Barr v.Nicholson, 21 Vet.App. 303, 311 (2007).

In this case, the Board found that Appellant is not entitled to serviceconnection for a heart condition or a benign trigeminal schwannoma. Inconcluding that Appellant is not entitled to service connection to a heartcondition, the Board relied on a July 2016 VA heart examination with a May2017 addendum in which the examiner opined that Appellant’s report of in-service heart problems was not credible because such symptoms wouldhave been so worrying that Appellant would likely have sought medicalevaluation for them. [R. at 52 (50-54)] (May 10, 2017 addendum opinion);[R. at 20-27] (July 1, 2016 VA heart examination). In concluding thatAppellant is not entitled to service connection for a benign trigeminalschwannoma, the Board relied on a July 2016 examination with May 2017addendum in which the examiner opined that “review of availablemedical/scientific literature does not show evidence-based medicalinformation that had established a cause and effect relationship of noiseexposure and/or head trauma as a risk and/or aggravating factor beyond itsnatural progression for trigeminal schwannomas.” [R. at 50 (48-50)] (May 10,2017 VA addendum opinion); [R. at 27-35] (July 1, 2016 VA examination).

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The parties agree that remand is required for VA to procure an adequate opinion. See Barr, supra.

The examiner’s opinion was inadequate as to the trigeminal schwannoma. Under Wise v. Shinseki, 26 Vet.App. 517, 531 (2014), it is not required that a “medical principle reach the level of scientific consensus in order to support a claim for VA benefits”. Here, the examiner’s rationaleseemingly required a level of scientific consensus that is not required underWise, opining that Appellant’s schwannoma was not due to noise exposure or head trauma because “review of available medical/scientific literature does not show evidence-based medical information that had established a cause and effect relationship of noise exposure and/or head trauma as a risk and/or aggravating factor beyond its natural progression for trigeminal schwannomas.” [R. at 50 (48-50)].

The examiner’s opinion was also inadequate as to Appellant’s heartcondition. The examiner opined that Appellant’s report of in-service heartproblems was not credible because such symptoms would have been soworrying that Appellant would likely have sought medical evaluation forthem. [R. at 52 (50-54)]. However, Appellant sought treatment for his hearton two occasions in service: in September 1975, Appellant reported “chest pain” that “feels like pressure in chest” [R. at 3496] (Sept. 17, 1975 servicetreatment record), and in March 1977 Appellant underwent EKGs. [R. at3513-14] (Mar. 2, 1977 EKGs). On remand, VA must obtain an opinion that

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adequately addresses whether Appellant’s schwannoma was as likely as not caused by his service and whether Appellant’s heart condition was as likely as not caused by his service.

The parties agree that this joint motion and its language are theproduct of the parties' negotiations. The Secretary further notes that anystatements made herein shall not be construed as statements of policy orthe interpretation of any statute, regulation, or policy by the Secretary.Appellant also notes that any statements made herein shall not be construed as a waiver as to any rights or VA duties under the law as to the matter being remanded except the parties' right to appeal the Court's order implementing this joint motion. The parties agree to unequivocally waiveany right to appeal the Court's order on this joint motion and respectfully ask that the Court enter mandate upon the granting of this motion.

Upon remand, Appellant will be free to submit additional evidence andargument on the questions at issue. Kutscherousky v. West, 12 Vet.App.369, 372 (1999) ); accord Clark v. O’Rourke, No. 16-2826, slip op. at 5-6,2018 WL 3357628 at * [4-5] (July 10, 2018). The Board will “seek any other evidence it feels is necessary” to the timely resolution of Appellant’s claim.See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (requiring Board onremand to “reexamine the evidence of record . . . and issue a timely, well-supported decision in this case”); Quarles v. Derwinski, 3 Vet.App. 129, 141(1992). Before relying on any additional evidence developed, the Board shall

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ensure that Appellant is given notice and copies thereof, and an opportunityto respond and submit additional argument and/or evidence. See Thurber v.Brown, 5 Vet.App. 119, 126 (1993); Austin v. Brown, 6 Vet.App. 547 (1994).

In any subsequent decision, the Board must set forth adequatereasons or bases for its findings and conclusions on all material issues offact and law presented on the record. See 38 U.S.C. § 7104(d)(1); Gilbert, 1Vet.App. at 56-57 The law requires that “expeditious treatment” be affordedto all claims remanded by the Court or Board. 38 U.S.C. §§ 5109B, 7112;see Drosky v. Brown, 10 Vet.App. 251, 257 (1997); Allday v. Brown, 7Vet.App. 517, 533-34 (1995). Once ordered, a copy of this joint motion andthe Court’s order should be associated with the Appellant’s claims file.

Finally, the Board shall incorporate copies of this joint motion for remand and the Court’s order into Appellant’s file before VA for appropriate consideration. The terms of this JMPR are enforceable, and Appellant has enforceable rights with respect to its terms. See Forcier v. Nicholson, 19Vet.App. 414, 425 (2006) (“We further hold that the Board has a duty under Stegall to ensure compliance with the terms of the agreement struck by the parties, which form the basis for the ‘remand order’ even if they are not incorporated explicitly”); Stegall v. West, 11 Vet.App. 268, 271 (1998).

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CONCLUSION

Considering the foregoing, the parties respectfully move the Court to enter an order vacating and remanding the November 30, 2017 Board decision which denied Appellant’s claim for entitlement to service connection for a heart condition, to include as secondary to service-connected Meniere’s disease, and a benign trigeminal schwannoma, to include as secondary to noise exposure and/or head trauma sustained in service.

[broncovet]

A Joint remand means that everyone smokes a joint and considers your claim.  (I could not help that.) . 

Seriously, a JMR means that BOTH parties have to agree, you/your representative and the VA attorneys.   Sometimes the parties "propose" a JMR that the Veteran can agree to or reject.  Its often a point of negotiation .  It means the VA attorneys concede there were errors in your BVA decision, and the only thing which remains is the remedy.  

The VA attorneys are taking the position that there is not enough evidence to grant your benefit, but are offering an c and p exam which could provide you some evidence that was apparently missing in your c and p exam...that is, its inadequate.  

My guess is you should accept this remand, likely.  But you can read over the c and p exam and see what its missing, to see if you agree.  

A remand almost always means you can submit new evidence, such as an IMO, which should win it for you, if the IMO is good and favorable.   

[Pedro L]

Bronco, thanks for the response.  I already have an IMO and the VA has had two bites at the apple.  Both of the VA opinions are from the same physician, and both saying exactly the same thing.  The CAVC has jointly remanded my case back to the BVA.  A decision by the BVA judge was made before the 90 day window to submit additional evidence expired.  That was one of the major reasons my case was jointly remanded from the CAVC to the BVA.  I submitted over 100 pages of additional evidence to the BVA judge which was received but not considered before the denial was issued.  Unfortunately, I followed the directions on the denial and my evidence was diverted to Janesville for scanning into my my file before the judge could take it into consideration before making her decision.  Coincidentally, each of the reasons for denial was addressed in the 100 pages I submitted.  I do not believe the VA should get a "3rd bite at the apple".  That's the reason for my post.  I would like some advice on how to persuade the judge to grant me service connection without remanding it back to the AOJ.  Thank you for your feedback.

 

[broncovet]

The judge has nothing to do with a JMR, unless you decline the JMR.  

To repeat, the JMR is an agreement by both parties, and if YOU decline the JMR, then there is not an agreement.  YOur attorney "may" have decided to accept this JMR, but, when it was offered to me, I had to agree, not my attorney.  By the way, I have had 2 JMR's.  

You can decline the JMR, and let it go to the judge instead.  You see, a JMR is basically "settling it out of court".  The terms of the JMR are negotiable.  In one of my JMR's, the VA attorneys offered "X" as the terms of the remand.  I told them I would accept "x plus a", but not x alone.  The VA attorneys agreed to my offer, so it was typed up and the JMR was completed.  

You can try decling the JMR, and take the chance that the Judge will be "more strict" than the VA attorneys and they could deny you instead of remand.  That is risky.  

One way that may work is to offer a compromise.  Something liie, "I will drop the claim for _______ if you agree to award SC for ________.   Understand, the JMR is a negotiation, just like when you buy a car.  Both the dealer and you have to agree.  If you can not come to an agreement with the dealer, then you dont get the car.  

Now, lets say you make this offer I suggested.  The VA lawyers reject it.  That does not mean you can not accept their original offer!  In other words you can "ask" for more!   Just like the car dealer, you can offer 200 dollars less than what he quoted, and you can probably still get it, and save 200 dollars.  With a dealer, I usually make them give the number.  I say, "that's too much".  Cant you do any better than that??  Or are you not interested in selling me a car today?  (Beleive me, they want to sell you a car!!!) . 

In criminal law, a JMR is called a "plea bargain".  

 

[Berta]

" I do not believe the VA should get a "3rd bite at the apple".  That's the reason for my post.  I would like some advice on how to persuade the judge to grant me service connection without remanding it back to the AOJ.  Thank you for your feedback."

I had a situation like that- 3 IMos for and 2 C & P exams against- and I had asked BVA for a remand because my VCAA letter was highly deficient.

But BVA remanded for an additional VA opinion- from a cardio doc- I got an opinion from a PA,instead,  and rebutted it medically immediately with the BVA.I knew more cardio than the PA did.

The BVA then agreed my VCAA rights had been violated but it was a Moot issue because they awarded.

I had a lot of evidence in addition to the IMOs.

But if you are awarded at BVA, the claim would still be remanded to the AOJ for percentages-and this might set you up for SMC with the 100% you have now- ---    might- not sure-

You have been very proactive with your issues! I commend you!

 

 

 

[Pedro L]

Broncovet/Berta:  I apologize for my confusing question.  I originally applied for Meniere's.  I went to a C&P exam to an ENT expert and he was directed to decide if it was "as likely/not likely" for hearing but not for Meniere's.  I was already service connected for hearing and already had gone to a C&P for hearing 4 years prior.  The VA ENT doctor service connected me again for hearing loss but he also included the fact that I was diagnosed for Meniere's by a private ENT and had been treated for hearing loss, tinnitus, and vertigo in service.  I was denied and I appealed, but not to the BVA.  I testified in 2 video hearings (waste of time).  

Three years later, I applied for a heart condition and a benign brain tumor.  I was sent for a C&P for the 3 conditions and all were denied by the RO and I appealed to the BVA.  I testified in a video hearing by a BVA judge.  For the first time during the application/appeal process, I felt like I finally felt as if someone was actually going to read all the evidence in my service records and the IMO I had submitted.

The BVA judge approved service connection for Meniere's and remanded heart and tumor for additional C&P.  After VA stonewalling, I was awarded back pay (6 figures) and continued denial for heart and tumor.  I appealed denials to the BVA and before the 90 days expired to send additional evidence, my appeal was denied by the same BVA judge.  I had sent approximately 100 pages which were received by the BVA but not considered by the judge before she made her decision.  I appealed the denial to the CAVC.  I originally filed pro se but decided to hire an attorney.

The CAVC attorney and my attorney agreed to a Joint Motion for Remand back to the BVA judge.  This is where my original question originated.  I wanted advice on how to convince the BVA judge NOT to remand my case back to the Agency of Original Jurisdiction(AOJ) for another "bite at the apple" by ordering another C&P examination, which the Joint Motion recommends.  The VA had two bites at the apple in an C&P examination and an addendum by a VA doctor.  I am not a physician but after reading the reasoning by the C&P doctor, I am convinced that he was not qualified to provide an opinion.  The CAVC attorney and my attorney also agreed.  Hence the joint remand.  

Time is not on my side because I am not a young rooster.  I croak and the VA wins; they know it and so do I.  This is my dilemma, and the reason I am asking for advice.  

I am pro se at the BVA.  I will not consider hiring an attorney because there is no reason to do so (I understand that 20% of something is better than 100% of nothing).  

Perhaps I am needlessly worrying about something that has not happened.  I am worried that the BVA judge will remand for another (maybe more) useless C&P exams.  However, if the BVA judge decides that the evidence I submitted and was not considered before she denied my appeal a year ago should be given greater weight than the negative opinion by the VA doctor, I should prevail.  I understand I am not a doctor but the evidence I submitted include scholarly studies that have been conducted on acoustic neuromas and opinions by numerous hospitals, all supporting my position.  Additionally, I was treated for my heart condition during service and are in the Record Before the Agency but the VA continues to deny their existence.  I have a current diagnosis by the VA and medical history of continuity of medical treatment after discharge from service.  Funny but sad.  

Berta:  Thank you for your compliment.  I hope that I have done my homework and will prevail at the BVA.     

    

 

 

[broncovet]

Ok, so if I understand what you posted is that you won a JMR from CAVC, and you are currently at the BVA, awaiting implementation of the CAVC JMR.  

My suggestion is that you contact the attorney who represente you, and ask him for a copy of your RBA (this is the same as your cfile).  

Then, make absolute certain the BVA has received your new evidence, by sending it again, certified mail, return receipt requested.  You can not imagine how many Vets have lost because evidence conviently disappeared.  

Then, make sure all your ducks are in a row:

Look especially for these things:

1.  Caluza elements.  Look there first, the rest wont matter if one of these is lacking.  

2.  Look at the c and p exams, and IMO's in detail.  Was the doc qualifed as an expert witness?  Did he have medical qualifications relevant to your diagnosis?  

Did he state he reviewed your records?   Was the nexus statment clear?  Did he provide a rationale as to "why" this malady was related to service?  

     If you have done all this, then you should be confident of a favorable decision.  Make no mistake, tho.  Regardless of whether or not your claim is awarded by the BVA, it will go back to the varo for implementation, UNLESS its denied at the board.  

      I think what you are asking is how to hurry this up.  Other than applying for an advance on the docket, I dont see much you can do.  If this "rooster" is over 75, then you should get an advance.  It may not make a lot of difference.  BVA is under pressure to process your JMR "expiditiously".  

      In other words, you will likely keep your old docket number, which means your appeal will have priority over newer ones.