Cavc remand and bva remand orders make sure you read them

[Mr cue]

I think I need to break this down so others become aware of these error which I look as been done on purpose to veterans.

Ok here is the court remand order.

 

Upon consideration of the foregoing, the portion of the January 30, 2020, Board decision

finding that October 2018 NOD did not encompass that portion of the July 5, 2018,

rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder is REVERSED

and the matter is REMANDED for further adjudication; the portions of the January 30, 2020,

Board decision denying an effective date before May 9, 2018, for the grant of SMC and entitlement

to SMC in excess of the housebound rate, from May 9 to July 17, 2018, and at the aid-and-

attendance rate from that point are SET ASIDE and the matters are REMANDED for further

development, if necessary, and readjudication consistent with this decision; and the balance of the

appeal is DISMISSED.

DATED: January 29, 2021

 

Ok the court reverse the decision that I never appeal the adjustment disorder.

They side a side the effective granted January 30 bva decision.

So that mean address early time period.

 

Ok here is the bva remand to droc DC.

1. Prepare an SOC in accordance with 38 C.F.R. § 19.26

regarding the issue of an initial rating in excess of

70 percent for adjustment disorder with depressed mood.

This action is required unless the matters are resolved by

granting the benefits sought by the Veteran in full or by

the Veteran’s withdrawal of the NOD. If, and only if, the

Veteran files a timely substantive appeal should the issue

be returned to the Board.

2. Assign appropriate effective date(s) for SMC

housebound and SMC based on the need for aid and

attendance granted by the January 2020 Board decision.

3. After issuing a rating decision assigning appropriate

effective date(s) for SMC housebound and SMC based

on the need for aid and attendance, adjudicate the claim

of entitlement to a higher SMC rate, including

determining whether SMC under 38 U.S.C. § 1114(o)

and 38 U.S.C. § 1114(r) is warranted. After issuing a

supplemental SOC for this claim, return the case to the

Board.

 

Ok now this is were they volate the cavc remand order.

1. I did a va form 9 2018. Ok I had to do one to continue the appeal.

Board state return to board.

Well the droc has take the new form 9 and made it a new appeal system.

I am now 100000 in line.

2. The bva stated on remand Grant the same effective dates the court order them to set a side.

Ok I get a decision with same effective.

Told I have to do a new nod to continue my appeal.

No where does bva remand state do this.

It State return to board.

Well now the droc has put me in the new ama appeal system. With a new appeal date of July 2021.

Never check opt in box.

 

Ok this might be a lot for some but i feel I need to explain it on one thread.

This is what my petition for extraordinary relief is based on.

I also used the bva 2 remand for loss of use.

The court remand smc r and o.

But the board is hold it tell me its part of the remand.

 

Here is the bva remand order now let me state this first. This is the only thing that they still have under the cavc remand docket.

 

In this regard, in support of his claim of entitlement to a higher level of SMC, the

Veteran has asserted in various correspondence that he has “loss of use” of his left

hand and/or arm. However, no examination or opinion has been obtained that

specifically addresses whether the Veteran’s left hand/arm disability results in the

functional equivalent of loss of use. In this regard, the regulation defining

“loss of use” appears to leave the definition open to some interpretation to the

extent that it includes an intentionally non-exhaustive list of “example” situations

which may reflect loss of use. See 38 C.F.R. §§ 3.350(a)(2), 4.63. The Court has

found that a “loss of use” exists when there is “deprivation of the ability to avail

oneself” of that extremity, and functional impairment caused by pain, weakness, or

incoordination should be taken into account when making that determination. See

Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017).

The Board is cognizant that the Veteran had a VA examination in July 2019,

pursuant to which an examiner found that there was not functional impairment

such that no effective function remained other than that which would be equally

well served by an amputation with prosthesis. However, there was no rationale or

explanation provided for that conclusion and, given the objective findings on

examination, the Board finds that one should have been. In this regard, the Veteran.

was noted to have severe ulnar neuropathy that limited his fingering, finger

handling, feeling, fine motor movements, keyboarding, and work with hands over

his head. It was also noted that he could not make a tight fist with the left hand

and had weakness with thumb to finger testing of all fingers. Specifically, grip

strength on the left was 3/5 and pinch strength was 2/5. Absent a rationale, given

the severity of the objective findings and the Veteran’s subjective complaints, the

Board is hesitant to rely on the examiner’s conclusion regarding functional

impairment.

Additionally, the Board notes that more recent VA treatment notes suggest a change

in the Veteran’s condition. For example, in March 2021, the Veteran denied

weakness in his hands, reported that he was not dropping things, and reported only

intermittent numbness in his left hand and fingers.

Given the foregoing, the Board finds that remand is necessary for an examination

and an opinion as to whether the Veteran has the functional equivalent of loss of

use of his left hand and/or arm.

The matter is REMANDED for the following action:

Provide the Veteran with a VA examination to assess the

current severity of his service-connected left hand/arm

disability. If the Veteran declines the examination, an

opinion should be provided based on the record.

Following examination of the Veteran and/or a review of

the record, the examiner should provide an opinion as to

whether the Veteran has the functional equivalent of loss

of use of his left hand and/or arm.

For purposes of this opinion, “loss of use” will be held to

exist when no effective function remains other than that

which would be equally well served by an amputation

stump at the site of election below elbow or with use of a

suitable prosthetic appliance.

 

Ok now nowhere is the smc r or o address.

Now I am waiting on the medical opinion report to be done 4 months.

Still no report.

I have over 25 years record big loss of use. I receive in home care for loss of use.

The exam was a specialized exam done after 5 other exams.

 

Now here is the crazy part loss of use is to be made by the rater not the medical doctor.

 

c. Information to Request From an Examiner to Determine Loss of use requesting an examination to

determine LOU of an extremity, ask the examiner to furnish a

• Detailed objective description of remaining function

Quantitative assessment of strength for each extremity involved, and

• Description of any pain that affects use.

Do not request that the examiner

• Determine LOU, or

• Express an opinion as to whether there is, or is not, LOU of an extremity or extremities.

Note: If LOU cannot be determined upon review of an examination report, request an appropriate

specialized examination.

This the exam the board is rejecting with no evidence to reject it

Loss of use is to be determine by the rater not by the examing doctor

• Considering functional loss due to pain in claims for SMC, see Tucker v. West, 11 Vet.App 369,

374 (1998), and

• Requesting a specialist examination, see M21-1, Part III, Subpart iv, 3.A.6

 

Ok I am just going to include the law and cases. I am going to use to fight the remand in a min if I don't get a decision soon.

 

Someiano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA

to undertake further development if purpose was to obtain evidence against appellant’s case)

 

Adam v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for

the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop

evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt

to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. At 1322.”

 

Everbody understand that a cavc remand is to be return to front of line. And given expidate treatment. That law.