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.

[Berta]

 " 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"

One of the best things any claimant can do is to try to rebutt a C & P examiner's opinion.

Or better yet- get the opinion knocked down medically by any IMO/IME doctor they get.

We had a male vet here sometime ago get a C & P exam done by a Gynecologist. 

My IMO doc (Dr Bash)had the two VA opinions from an Endocrinologist -against my diabetes claim.He picked them apart and even stated one of them was "medically inaccurate" with a full medical rationale as to why.

VA has done many opinions posthumously on my husband, and some of them I was able to rebutt myself.

", 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.”

Yeah, these C & P docs use google sometimes to find anything at all that will go against the claim.

Google however is a great weapon we can also use as you probably did many times-

The VA however, when they at first refused to re open my death claim, stated the only evidence I sent to them was multiple internet printouts.

Oddly enough they again managed to overlook my probative medical evidence, with which the open the claim..The printouts were just icing on the cake- but abstracts and interent medical info get far more attention when a real ( non VA IMO) doctor uses them, to enhance their medical rationale.

Those doctors with expertise, also have the most recent medical info to bolster a claim with, that they can cite in an IMO/IME.

 

 

 

[Pedro L]

I just checked the CAVC site and the Joint Motion for Remand has been approved by the Court and is being sent back to the BVA:

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO:  0000-00

APPELLANT,

V.

ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

O RDE R

The parties have filed a joint motion to remand this appeal to the Board of Veterans' Appeals. As part of their motion, the parties have affirmatively waived any right to appeal in this matter.

Upon consideration of the foregoing, it is

ORDERED that the motion is granted. The matter is remanded, pursuant to 38 U.S.C. § 7252(a), for action consistent with the terms of the joint motion. See Forcier v. Nicholson, 19 Vet.App. 414, 425 (2006); Stegall v. West, 11 Vet.App. 268, 271 (1998). This order is the mandate of the Court. An application pursuant to 28 U.S.C. § 2412(d), the Equal Access to Justice Act (EAJA), for award of attorney fees and other expenses shall be submitted for filing with the Clerk not later than 30 days from the date of this order.

DATED: November 20, 2018

Copies to:
VA General Counsel (027) Clerk: CAM

FOR THE COURT:

/s/ Gregory O. Block GREGORY O. BLOCK Clerk of the Court

[Berta]

Good- that means you can still send any additional evidence to the BVA.

[Pedro L]

Berta, thanks for your feedback.  I truly believe that if the BVA Judge would have reviewed the evidence I submitted but did not have an opportunity to consider, the ruling would have been in my favor.  The CAVC has now remanded my case back to the BVA with a ruling that I hope results in award of service connection.

I have been pursuing my disability claim since 2003.  Because of my persistence, I went from the RO telling me that due to CUE, my disability rating would be reduced from 40% to 20%, to being awarded 100% after a ruling from the BVA.  Incidentally, the VA was correct in calling CUE, but because they waited too long to make a final ruling, the reduction was never implemented.  I have my opinion of why the reduction was not implemented, but I have not been able to find the "smoking gun" in the Record Before the Agency (RBA).  The RBA is so poorly organized (on purpose, I believe) that I have to examine each of the 4,000 pages to find it.  I continue to look.  

After the RO implemented the BVA ruling and awarded 100%, I submitted a NOD on the effective date. A year later, the RO denied my NOD. The reasons for the denial is a joke.  The Statement of the Case was 50 pages long.  The Reason and Bases for the denial is 8 sentences long.  In their denial, the VA used the IMO I submitted to deny the EED.  The same IMO that the BVA Judge heavily relied on to award service connection.  

The journey has been too long and frustrating.  I see a light at the end of the tunnel; I nope it is not a train.

 

 

 

 

 

 

 

 

   

  

[Berta]

Believe me, Persistence pays off Pedro!

In the past 24 years ( my husband died with 2 claims pending) my RO Buffalo did everything they could, not to award my claims.

It all gave me considerable knowledge of the pitfalls a claim can hold, and how to rebutt the pitfalls-

I have every decision they ever  sent to me, and they denied many claims many times- solely because they completely ignored my most probative medical evidence, yet accepted the word of Quacks (VA C & P examiners)

I have an issue at the Acountability office. When that is resolved ,I will start complaining to them about these lousy incompetent C & P  examiners s, paid via contractors , who are paid by the VA.A true conflict of nterest and I hope someone will start a class action against them.

If a vet or widow like me, has had to pay thousands of dollars to combat a lousy C & P exam , to a independent doctor who will go over the entire record far more diligently than the C & P doctors do-and we succeed on the claim due to the costly IMO- the VA should be sued for a refund of the monetary  " damages" VA caused, (the IMO fee) as well as causing the tremendous backlog-by forcing us to appeal ,because, in my VAROs case, they cant even read.

I could gripe all day about the VA.I had a long phone call with the Triage office in DC-and brought up the C & P issue among others, breifly but the complaint I filed changed from the initial call to the WH I made-that is why the Triage team contacted me, because I suddenly got new info to support it ( from the GAO) - Serendipity!!!!!

but I also told the Accountability man- that  I believe VA  save lives everyday and some of the best people I know work for the VA. But they often have to work side by side with incompetents.

Yeah the light in the tunnel can be very dim at times - but Evidence and persistence can make it become very BRIGHT!

I have prepared all of my claims with a War Plan-I -put a photo of my VARO in the middle and then list  my tactical manuevers around it - meaning the way I will combat any denials---and surround them with evidence.

Va isnt our enemy- however-

Time Is.

Keep up the fight Pedro and your posts have encouraged many here I hope.

 

 

 

Edited November 22, 2018 by Berta

[Pedro L]

Update on VA.gov

Your appeal was remanded by the U.S. Court of Appeals for Veterans Claims. Court Remand appeals are prioritized so that they‘re always at the front of the line. Your appeal will be sent to a judge as soon as it‘s ready for their review.