Veteran Disability Compensation, the Court of Appeals for Veterans Claims and Joint Motions for Remand

Applying for veteran disability compensation can become an arduous process. A veteran who claims disability benefits from the Department of Veterans Affairs (VA) learns the VA claims process often includes several stages of claim, denial, appeal and development.

After an initial claim for disability compensation, the VA responds with a rating decision, which may deny or grant a claim, in whole or in part. If veteran disagrees with VA’s rating decision(s), veteran files a notice of disagreement within one year. The veteran will again wait for the VA to make a decision, which comes in the form of a Statement of the Case.

If a veteran still disagrees, the veteran can submit additional evidence, if any, triggering a Supplemental Statement of the Case, or the veteran has the option to file a VA Form 9, an appeal to the Board of Veterans’ Appeals (Board) in Washington, D.C. (within 90 days).

If veteran files a VA Form 9, he then waits for the Board to make a decision. If veteran disagrees with the Board’s decision, he files an appeal with the Court of Appeals for Veterans Claims (CAVC) (within 120 days). The CAVC is an independent court that reviews the Board decisions for errors on the record.  (It will not review new evidence.)  It may affirm the Board decision, reverse the Board decision, or remand the Board decision; however, a veteran may also encounter an offer by the Secretary of the VA for a  joint motion for remand (JMR) even before the issues can be resolved by a judge.

A JMR is an agreement between veteran’s attorney and the attorney representing the Office of General Counsel (OGC) that provides remand is required because the OGC concedes the VA has made errors in its decision that necessitate remand and correction.

Some claims are remanded early through a dispute resolution process prior to the veteran’s case being fully briefed by the parties. CAVC’s Central Legal Staff (CLS) organizes a telephone conference, supervised by CAVC, to determine whether the OGC is agreeable to remanding all or some of the issues on appeal to the CAVC.

This is just one of the ways a JMR (Joint Motion for Remand) may result.  Occasionally the OGC will offer a remand following review of the veteran’s brief.  In either case, the Board may need to correct its decision or remand for additional claim development, such as a new medical examination.

It is helpful for remand to be specific when drafting the joint motion to remand the Board decision. Recently, in Carter v. Shinseki, 26 Vet. App. 534 (2014), a veteran argued the Board erred because it did not conduct a proper review of the issues reasonably raised by the record in his claim for disability compensation. The CAVC held that the terms of the JMR can be considered a factor by the Board when determining whether it has a duty in that case to search for issues reasonably raised by the record.

In Carter, the CAVC points to the language in the JMR and states that “the Board should fully assist [Mr. Carter] with his claim by reexamining the evidence of record and seeking any other evidence that is necessary to support its decision.” Id. at 543. CAVC indicates the JMR could have provided limiting language for the Board’s review, but it did not. Therefore, it appears CAVC is stating that the scope of the Board’s duty to review the record for issues reasonably raised depends, in large part, on what is written in the Joint Motion for Remand.

This is just one reason why having a skilled veterans’ attorney is so important.  Please contact Berry Law for a complete consultation.