Appeal Remanded...

[Indy_CV62_OS]

My Legacy Appeal was Certified Jul 2019.  In the time that my case was at the Board, I had filed new claim for Hearing Loss and Tinnitus; 0% for hearing and 10% for Tinnitus.  Beginning in late August, I sought out a local lung specialist for a complete exam and evaluation of the collapsed lungs.  He had determined that the left side chest tube caused an injury to the Intercostal Nerves.  This is accidental and also common.  All of that evidence, including a CAT scan went straight to the Board.  When the evidence was faxed, I had waived any consideration of the RO for the new evidence.  I wanted the Judge to see the new evidence and decide my Appeal.

The Board punted my Appeal.  They either screwed up or chickened out.  If someone at the Board failed to show the Waiver to the Attorney or Judge, then they goofed.  If the Judge knew about the Waiver and still made a mere footnote of my Triple Board Certified Pulmonologist, then something else is screwy.  The Board referred to a 2017 C&P Exam for my chronic chest pain, evaluated by, get this...a Nurse Practitioner.  Not that there's anything wrong with NP's, but why did they not rely on the New and Material evidence?

Now my case will go back to the RO and this could take years.  I can't petition the Court of Veterans Appeals because the Judge's order is not final.  So, they get to play with me longer.  I am going to get on the horn with my Lawyer tomorrow and find out if we can file a Writ of Mandamus and take their ass to Federal Court.  It just knocks me out.  I'm running around on my dime gathering evidence that they need.  I even said "I'm willing to wait until the cows come home, as long as the Board applies the new evidence and get it right".  I sure hope somebody can learn from this.  I am way past pissed off and frustrated, but I'm not backing down.  I hope everyone has a good week.  Oh, that other forum?  Learned my lesson once and for all.  You can't even sneeze on their beloved VA without getting your pee pee smacked.  I'll stay here.

[Indy_CV62_OS]

23 minutes ago, vetquest said:

Can you redact and post the remand?  It would help a lot.

Most definitely....stand by

I didn't scan the Judge's signature page

Edited November 7, 2019 by Indy_CV62_OS
added Board decision

[vetquest]

Wow, I love remands like this.  They did not obtain all pertinent information is the first part (item1).  Item 2 relates to the less than 50% likely decision.  The examiner is supposed to read everything that you provided and then make a new decision about whether you are SC and then provide a rationale.  This is a good thing.  The board notes, for the convenience of the examiner, that you still have residual pain subsequent to your time in service.  That is very good in my opinion.

Yes it looks like they are going back to 2007 citing new and material evidence.

Now you need to wait for them to obtain your records, if you can get them and provide them it might make things go quicker.  Then they have to do a evaluation of your C&P and make a new decision.  If it takes longer than six months I would see if your lawyer wants to write a write of mandamus for you.  The RO is supposed to expedite your claim but I have seen RO's not do this and sit on remands.

[Indy_CV62_OS]

12 minutes ago, vetquest said:

Wow, I love remands like this.  They did not obtain all pertinent information is the first part (item1).  Item 2 relates to the less than 50% likely decision.  The examiner is supposed to read everything that you provided and then make a new decision about whether you are SC and then provide a rationale.  This is a good thing.  The board notes, for the convenience of the examiner, that you still have residual pain subsequent to your time in service.  That is very good in my opinion.

Yes it looks like they are going back to 2007 citing new and material evidence.

Now you need to wait for them to obtain your records, if you can get them and provide them it might make things go quicker.  Then they have to do a evaluation of your C&P and make a new decision.  If it takes longer than six months I would see if your lawyer wants to write a write of mandamus for you.  The RO is supposed to expedite your claim but I have seen RO's not do this and sit on remands.

The entire Order is silent concerning my Aug 2013 claim and subsequent denials.  It appears to me as though the Judge is looking to disqualify the examiner, which by the way is just a NP (Nurse Practioner) or the Judge wants to put the NP up against my lung specialist.  When I was medically discharged, the two collapsed lungs and the Post-Thoracotomy Syndrome were on my Medical Review Board.  Essentially, I've had the same problems, non-stop since just after the left chest tube 1984.  The biggest issue is that I can't get a deep breath when I need or want to.  

The condition of not being able to take a deep breath is Dyspnea and that is on many records of trips I'd made to sick call while still on active duty.  Yes, collapsed lungs can be treated and that's it, but, in my case an injury occurred when the left tube was jammed into my chest.

I'll be speaking with my lawyer tomorrow and see what he thinks.  That Order is quite clear.  The Judge might be asking WTFO.

Edited November 7, 2019 by Indy_CV62_OS

[vetquest]

I believe the judge is chastising the RO and remanding your case.  This is usually good for the veteran.

[Indy_CV62_OS]

2 hours ago, vetquest said:

I believe the judge is chastising the RO and remanding your case.  This is usually good for the veteran.

Spoke to my Lawyer; he does not believe that the Order is going to go back to 2006.  The Order has boxed in the RO...the C&P Exam from 2017 that went against me, has to be strengthened.  The Judge is pointing out that the RO Denied me based on that one exam by a Nurse Practitioner.  So, the RO has to either get better opinion to counter all of my evidence or Grant the Appeal.  I think the RO will just Grant and it will be pretty quick.