Client Win: CAVC No. 20 - 2297, Backlund v. Wilkie (VA C&P Examiner ignores prior BVA order)
This case involves the BVA appeal of an Army veteran (1976 to 1977) who was appealing the denial of service connection for an acquired psychiatric condition.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (VA C&P Examiner ignores prior BVA order).
The duty to assist requires that the Board of Veterans Appeals ensure that any C&P exam provided by the VA is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
A VA medical opinion must be factually accurate, fully articulated, and have sound reasoning for its conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 395, 304 (2008). The VA C&P examiner must provide a reasoned connection of medical facts to a clear opinion. See id. And the BVA must include an adequate statement of reasons and bases explaining what probative weight it affords the VA C&P examiner's opinion and why. See 38 USC 7104(d)(1).
The Board is required to substantially comply with its own prior remand orders, and with prior remand orders issued by the Court of Appeals for Veterans Claims. Stegall v. West 11 Vet.App. 268 (1998).
In this case, the BVA previously remanded the appeal to the VA regional office, with directions to perform another C&P exam. The instructions required the VA regional office to:
(1) identify all diagnosed psychiatric disorders, reconciled with conflicting evidence in the record;
(2) for any diagnosed psychiatric disorder, determine whether it is at least as likely as not related to the veteran's service
(3) obtain a detailed history of relevant symptoms
(4) if the VA C&P examiner diagnosed PTSD, he or she must identify the in-service stressor and opine as to whether the stressor is adequate to support a DSM-V diagnosis of PTSD;
(5) identify any symptoms that the veteran experienced that are related to his claimed stressor; and,
(6) consider and address three specific medical treatment statements and BVA hearing testimony in which the veteran identified his in-service stressors.
The VA C&P examiner shrugged off these instructions, choosing instead to opine only that it was possible that the veteran experienced a trauma in service, but that it was not strongly supported by records.
The VA's C&P examiner then concluded that the veteran's trauma was likely due to multiple stressors and it was not possible to determine if the symptoms are due to service without resorting to mere speculation.
RESOLUTION AT THE CAVC.
The parties agreed that the Board of Veterans Appeals erred when it failed to ensure substantial compliance with its own prior remand order, giving the regional office specific instruction as to what the VA C&P examiner should discuss.
Not only did the VA examiner not comply with the BVA's prior remand, but the BVA ignored their own remand too, failing to discuss the VA C&P examiner's failure to provide the opinion sought.
If you believe that the BVA has ignored its own remand order, or the remand order of the US Court of Appeals for Veterans Claims, or if you believe the VA C&P examiner's opinion in your case is inadequate, please click here to have an attorney at Attig | Cuurran | Steel take a look at your case.
OGC Attorney: Mary Jones (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: Michael Lane (link to VLJ's bio on federalpay.org)
Vets’ Rep at BVA: Florida Department of Veterans Affairs
Attorney for the BVA: Jonathan Yang (link to attorney's bio on LinkedIn)
Date of BVA Decision: December 5, 2019
Date of CAVC Joint Motion to Remand: November 23, 2020