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Joint motion to remand due to Inadequate medical opinion

Joint motion to remand due to Inadequate medical opinion

This case involves a the resolution of a veteran’s appeal to the BVA by way of a joint motion to remand. The veteran had been claiming service connection for a psychiatric condition and total disability based on individual unemployability (TDIU).

The veteran served in the United States Marine Corps from 1992 to 1996.

His appeal was resolved through a joint motion to remand.

The VA’s Office of General Counsel agreed that because the BVA committed administrative error,  a joint motion to remand was appropriate to get the case back to the BVA to fix its errors.

ISSUE ON APPEAL TO THE CAVC: (Parties enter Joint Motion to Remand when BVA relied on inadequate medical opinion to deny service connection for PTSD) 

The Secretary of Veterans Affairs must ensure that an examination provided to a veteran is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

A medical opinion must be factually accurate, fully articulated, and have sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 395, 304 (2008). Additionally, the Board must include a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. 

A veteran who is unable to secure or follow a substantially gainful occupation because of service-connected disabilities may be eligible for a TDIU rating. 38 C.F.R. § 4.16(a). Where a decision on one issue would have a significant impact on another, the two claims are inextricably intertwined. 

A VA C&P opinion concluded that there were some symptoms of PTSD, but that it would be mere speculation to make a connection between his service activities and his current mental health status. 

The parties agreed that the BVA failed to provide adequate reasons or bases and address whether this VA examination was adequate. Similarly, the veteran’s claim for TDIU was included in the joint motion to remand because it was inextricably intertwined with his service connection claims for bilateral hearing loss and a psychiatric disorder.

Since both of the service connection claims were being remanded to the BVA, the claim for TDIU must also be remanded to determine if the veteran meets the requirements for unemployability.

RESOLUTION AT THE CAVC: Joint Motion to Remand.

Attorney  and firm partner Alexandra Curran persuaded the VA's Office of General Counsel to concede that the BVA erred in its decision and join us in a motion to remand the appeal to the BVA.

The parties negotiated a remand that vacated the BVA decision and sent it back to assign a proper rating for PTSD that considers the actual law involving suicidal ideation in a VA service connection claim for a psychiatric condition.

If you have had suicidal ideation, and the VA or BVA is denying you a 70-percent rating for your service connected PTSD or service connected psychiatric condition, and would like help appealing to the BVA or CAVC, click here to have  Attig | Curran | Steel take a look at your case.

Case Details

OGC Attorney: Matthew Showalter (link to attorney's bio on LinkedIn)

Veteran Representation at CAVC: Alexandra Curran (link to bio)

Board of Veterans Appeals Veterans Law Judge: H. Seesel (link to Veterans Law Judge cases on Attig | Curran | Steel website)

Attorney for the BVA:  C. Teague, Associate Attorney (link to attorney's bio on LinkedIn)

Vets’ Rep at BVA: Matthew D. Hill, Attorney (Hill and Ponton)

Date of BVA Decision: February 20, 2020

Date of CAVC Joint Motion to Remand:  December 16, 2020

Link to BVA Decision

Link to Joint Motion to Remand.


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