Client Win: CAVC No. 21-0140 (BVA fails to comply with a Veterans Court Order).
This case involves the BVA's failure to comply with a Veterans Court Order in a January 2020 Memorandum Decision.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA fails to comply with Veterans Court Order).
In a January 2020 memorandum decision, the Court ordered the BVA to analyze relevant facts (including Appellant's inability to squat or kneel, difficulty bending, standing for long periods of time and walking long distances) to determine if those limitations impaired his ability to get or keep substantially gainful activity.
Although the CAVC rarely enforces its authority, it retains jurisdiction to enforce its prior orders in remands and memorandum decisions. There is a case called Stegall v. West, 11 Vet. App. 268, 271 (1998), which held that the BVA must substantially comply with the CAVC's orders.
I have, in 15 years of practice, seen thousands of BVA decisions which make no attempt at compliance with a Veterans Court Order. I have never, in 15 years of practice, seen the Court sanction - or even express concern with - the BVA for failure to comply with its orders.
The BVA infrequently adheres to the Court's orders, but frequently "gets away with it" for a variety of reasons. Most important among them is that the CAVC rarely takes issue with the BVA's failure to adhere to the Veterans Court orders. In this case, the BVA ignored the Court's directives in a memorandum decision; rather than address that behavior, the CAVC simply issued what is effectively a stamp order on a joint motion to remand.
If you believe the VA or BVA issued a decision that failed to follow a prior Court or BVA order, please click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Katerina M. Georgiev (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Haley Smith (link to bio)
Board of Veterans Appeals Veterans Law Judge: Milo H. Hawley (link to blog posts involving this BVA VLJ)
Attorney for the BVA: Brittani Hodges (link to attorney's bio on LinkedIn)
Vets’ Rep at BVA: The American Legion (link to blog posts involving this VSO)
Date of BVA Decision: September 15, 2020
Date of CAVC Joint Motion to Remand: July 14, 2021