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]

A Remand is far better than a denial-

The CAVC publishes their opinions here:

http://m.uscourts.cavc.gov/RecentDecisions.php

We can find it by Docket #. 

A Remand opens the door for more evidence, but that might not be the case here. In any event this is good news, compared to being denied by CAVC.

[Pedro L]

Thank you Berta for your words of encouragement.  You are absolutely correct that in order to prevail, you have to provide the evidence that is needed.   The VA will not do it for you; most times they won't even read the evidence you submit or your service treatment records.  That has been my experience for the last 16 years.  Time is not on our side and each day that passes, the VA gets a little bit closer to winning the battle.  I have already instructed my spouse to continue my claim if/when I pass away.  Hopefully, I will still be around when the final decision is made on my appeal.  The clock is ticking.