A few weeks ago, I posted an article called "Don't Fear the Remand" - and outlined some methods for Veterans to use the Remand process to their advantage to bring closure to their claim.
I heard from a LOT of Veterans that, when it comes to the Veterans Benefits Appeal process, truly do "Fear the Remand".
After talking with them, and reviewing my Firm's cases involving Remands, it is clear that what Veterans fear the most about remands is the "re" part.
Their claims are remanded. Again. And again. And Again. And again. For years - many times, for decades.
What follows is the classic story of the Veteran whose VA disability appeal is caught in a "Remand Loop" for several years.
This case was the subject of a July 8, 2014, Remand by the Court of Appeals for Veterans Claims.
The Veteran served in the Navy from 1999 to 2003. While in service in 1999, he sought what appears to be extensive medical treatment for a left knee injury. In 2000, while in service, he injured his right knee in a car accident. In his separation physical, the Veteran noted pain in both knees.
Here is the timeline of his claim:
June 2006: Veteran claims service connection for a Bilateral Knee Disability.
December 2006: C&P exam #1 confirms diagnosis, but offers no opinion on its relation to military service.
April 2007: VA Regional Office denies service connection
December 2009: BVA Remand #1 - requesting medical exam that opines on etiology and nexus of bilateral knee condition to military service.
March 2010: C&P exam #2 concludes, without any discussion of etiology (medical origin/cause), that there is no nexus to service
March 2011: BVA Remand #2 - Board requests, again, medical exam that opines on etiology of bilateral knee condition
April 2011: C&P Exam #3 - concludes no service connection, but again fails to discuss the etiology of the bilateral knee condition
October 2012: BVA, tired of remands, sought a medical nexus opinion of its own, which concluded no nexus to military service
February 2013: BVA Decision denies Service Connection for Bilateral Knee Disability
May 2013: Veteran appeals to CAVC
July 2014: CAVC Vacates BVA Decision and remands for another medical exam. Turns out, the BVA medical examiner failed to rely on lay evidence in the record that was favorable to the Veteran (namely, that the Veteran had symptoms of his bilateral knee disability since their onset in service).
Is this case over? No. It still has 1-3 years left, assuming that the BVA doesn't dodge its jurisdictional mandate under 38 USC 511(a) and 38 USC 7104(a) and simply kick the case back to the VA Regional Office.
Here's the tally of this case:
8 years running, and no final decision. On a knee disability. Arguably, one of the more straightforward claims a Veteran can have.
3 (soon to be 4) Medical Exams by the VA - 3 of them are inadequate so far.
2 BVA Remands, and 1 CAVC Remand.
For a bilateral knee disability.
Arguably the most straightforward of claims - next to tinnitus and hearing loss, that is.
This is not a rare story.
The inadequacy of Medical Exam Opinions by VA Examiners - and the medical contractors that are supposed to "help" with these opinions - is one of the biggest causes for remands of VA Disability Appeals at the BVA and the CAVC, in my experience.
There are several reasons these exams are found to be inadequate: they don't answer the questions that the Veteran, the BVA, or the CAVC sought to be answered.
What on earth could an anesthesiologist know about this - particularly when the VA (allegedly) has TBI medical experts on staff, and when the VHA, in its television PR campaign, hypes itself as the world's largest and most advanced health care provider.
Far too many Veterans spend far too much time in the appeals process - often decades.
Far too many Veterans have to deal with inadequate exams by the VA.
The job of the VA C&P Examiner is not hard - they must examine the medical history in the C-File, examine the lay statements of symptomatology (and other factors), and make an informed decision as to their relationship to service in light of the evidence of record.
Why can't C&P Examiners get it right?
I don't know the answer to this question, but the usual problems come to mind: lack of accountability in the VBA, lack of clear performance metrics and goals, lack of Leadership Vision at the VA/VBA, conflicting motives of VA employees (please the 'capos' that run the bureaucracy, or serve the Veterans, for example).
There is currently a MASSIVE and GROWING backlog of service-connection appeals. This backlog is due, in no small part, to the never-ending cycle of remands from the BVA and the CAVC.
The BVA - according to 38 CFR § 19.9 - is REQUIRED to Remand a case when further development of the record is needed to make a proper decision. And the CAVC does not have authority to weigh evidence in appeals to the Veterans Court.
So, the problem of inadequate C&P Exams seems to largely lie in 2 places: the volume of unnecessary remands by the BVA, and the quality of the work by the VA C&P Examiners themselves.
We will tackle the first part of the problem in another post. Let's talk about the second problem now, though: the low quality of C&P Exam opinions.
Admittedly, this is just one piece of a broken system. But it is a big piece - low quality C&P Exams by VA - and contract - Medical Professionals - is adding years, if not decades - to most Veterans VA Disability Appeals.
Here are 3 "easy" fixes to the problem - one for each of the people in the process (the VA, Congress, and Veterans).
Congress should modify 38 USC to require that development of the record resulting from a BVA Remand Orders must be accomplished in 30 days or less.
Interestingly, ALL of the deadlines in a VA disability appeal or claim fall on the Veteran.
For example, Veterans have to submit their VA Form 9 - the substantive appeal of a denied claim - within sixty (60) days of the date the VA issues its Statement of the Case (SOC).
How long does the VA have to issue that SOC? As long as it wants.
How long does the VA have to respond to the VA9? As long as it wants.
How long does the VA have to fix errors in a BVA or CAVC Remand? As long as it wants.
Solution #2: The VA should insist on quality exams from its own doctors, and from contract examiners.
The VA should tie a C&P Examiner's ability to perform an adequate exam and opinion as a performance metric to keep their job. This is as simple as having VA supervisors assess how many times a medical examiner at the VA has his (or her) C&P exam determined to be inadequate by the BVA and CAVC.
What is not measured is not fixed.
For those exams performed by contractors the VA pays to do exams, the Contracts should include clauses meant to allow the VA to withhold payment under the contract if certain accuracy benchmarks are not met.
I have seen heavily redacted copies of the private contracts that the VA enters with companies like QTC (and other contractual C&P Examiners) and no such protection appears to exist.
The taxpayer should not have to foot the bill for poor quality work by a government contractor; the Veteran should not "...suffer great distress or utter ruin..." when "Congress ha[s] justly thought [them] proper objects of immediate relief”.
Solution #3: Veterans should seek private medical exams, wherever and whenever possible.
The problem with this solution is that it is a "duct-tape" fix.
It allows Congress and the VA to avoid their responsibility of ensuring timely adjudications of benefits claims, and the performance of quality work by VA C&P Examiners.
However, it gets the Veteran out of the VA Hamster Wheel much more quickly.
If you do use a private medical nexus opinion, be sure that it includes these "Magic Words", or else it won't have any real evidentiary value.
Would you like to tell the Veterans Law Blog why you think so many exams are found to be inadequate by the BVA and CAVC?
I'd be happy to publish your opinion here on the blog - either using your name, or protecting your name if you fear retaliation from your bosses at the VA.
Submit your information to me using the Mail Call Submission Form, which you will find by clicking here.
Chris Attig, an Accredited Veterans Benefits attorney and Founder of the Attig Law Firm, PLLC is responsible for the content of the site. The principal office of Attig Law Firm, PLLC, is located in Dallas, Texas. Chris Attig is NOT Certified by the Texas Board of Legal Specialization. - Please view our website disclaimer.
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