Caring. Effective. Efficient.

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.

 

Recent Cases

This case involves a survivor’s claim for entitlement to Dependency and Indemnity Compensation (DIC). The appellant’s late-husband served in the US Air Force from 1964 – 1984, and passed away from a rare form of non-Hodgkins lymphom… Read More
This case involves involves an Air Force veteran (2000, 2003 – 2004) and his appeal to the BVA seeking a rating above 50% for his service-connected PTSD due to suicidal ideation and total occupational and social impairment. The appeal was resol… Read More
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).… Read More

See More Appellate Results

Taking Point! Blog

Feb
26
In January 2021, the VA rating for prostate cancer was the focus of a panel of judges from the U.S. Court of Appeals Veterans Claims issued a precedential opinion in Bailey v. Wilkie.   The panel consisted of Chief Judge Bartley (who… Read More
Feb
26
  Bold and unapologetically honest, Pam Keith is a refreshing political voice you need to follow right now.  She smoothly articulates the most rocky and controversial topics of our time.  It is no surprise that this attorney with 25 years of expe… Read More
Feb
12
In November 2020, a panel of judges from the U.S. Court of Appeals Veterans Claims issued a precedential opinion in Holmes v. Wilkie.   In it, the Court laid out a road map for Veterans trying to get the correct VA rating for migraines… Read More
Jan
25
By: Yalitza Ledgister, writing for “The Bridge” Single mothers! The poem “The Hill We Climb” recited by Amanda Gorman during the Inauguration on January 20th, 2021 was also written for you. It was created and articulated by a br… Read More

Read the "Taking Point!" Blog