I get perennial questions from every Vet when they join the asknod Army. How long is this going to take? Do we have to appeal to the Board? To the Court? Actually, there are a lot more questions but those are the most frequent. But, the outstanding one is “Why don’t they just decide it at the Court? Why the remand(s)? For every question in law, there’s an answer. You might not like them but it is what it is. The judicial system is like a Wedding cake. It has tiers above one another and each higher tribunal has limited power as to what they can look at.

Let’s begin by creating the analogy of knitting a sweater. If you drop a stitch and finally spot it when you’re almost done, you have to disassemble the sweater and pick up that stitch in order for the sweater to hold up. In law, that same analogy occurs when you get to the Board for a do over. Ditto the Court of Appeals for Veterans Claims, The Federal Circuit and the Supreme Court. The mistake has to be recognized, pointed out to those below…and remanded back for the idiot who who screwed it up to fix it-usually at the lowest level where the relative IQ hovers around 70-80. In a more perfect world, the Board or the Court should be able to just say “Wrong! Pay the Vet.” But we’re a fur peace from a perfect system if you hadn’t noticed.

Let’s say you file for PTSD as an example. Your records are spotty and they (VA) don’t have any info about the night Captain Charles and his Merry Band attacked the ammo/bomb dump at Camp English. Your MOS was cook but when the shit hit, you traded in your spatula for a 16 and were assigned to the perimeter to hold the line. You didn’t have a lot of close friends because you didn’t arrive in a group. You came straight from the Bien Hoa Repo Depot and found yourself at An Khe. After 365 and a wakeup, you went home. Your chances of finding your buds for testimony in your favor twenty years later  are dang slim to none. I discovered most of my buds flew into a mountain or got shot down. Charlie didn’t recognize Geneva Convention Cards up in Laos.

When you finally got around to filing a decade later, they said “You were a cook, dude. Cooks don’t fight. Next?”  So you lose based on absence of evidence. You finally get it sorted about 20 years later if you’re lucky. It usually occurs if you have a tenacious bulldog for a representative. All this entails a carefully choreographed dance up to the higher levels of the court system… and a shit ton of remands.

After losing at the local yokel level, you appeal to the Board. This is the place you’ll first encounter the dreaded remand. In the new AMA system, two things are guaranteed to cause it. Either they failed in their duty to assist you or they violated some regulation which created a procedural deprivation of justice. However, if you make sure you’ve plugged all the holes below, the BVA judge can make the decision to grant or deny.

If they grant your claim, they still have to remand it back to the Fort Fumble from which it arrived and the Puzzle Palace readjudicates it to comply with the Board’s dictates. The Board doesn’t have the power to grant a rating at X percent unless it’s an argument over a denied increase. The Board of Veterans Appeals (BVA) is what we call the Trier of Fact. They deal with facts- not money. The actual Regional Office raters are the ones who perform ratings and cut your checks. If you don’t like the outcome, you go back to the Board a second time and argue over the new low ball rating. Some call this the Hamster wheel or the ratings merry-go-round. Trust me when I say it doesn’t feel very merry when you’re broke and sick.

To illustrate further, let’s say you get the bum’s rush at the Board. You appeal to the Court (CAVC) and specify what went wrong (again). Of course, this time, you have to be anally specific. You can’t show up with a brand new theory as to why St. Pete’s DROC and the Board shafted you. The Court either agrees with you or they affirm the Board’s decision. Again, if the Court perceives the Board stepped on their collective neckties, you Vets are in for a blizzard of  Remands. The Court is empowered to either

a) set aside the Board’s decision and Remand it back to them to do it over the right way, or

b) vacate the Board’s decision and Remand it back following their advice on how to do it, or

c) reverse the BVA’s decision outright and Remand it back to them to give you what you asked for in the beginning.

In all these scenarios, you see one thing in common. Remands. The CAVC, the CAFC and the Supreme Court are not Courts of Equity. They don’t hand out the dough. They send it back to the tribunal below them for a do over. That tribunal sends it back down to the next idiot who screwed it up until it gets back to beginning. The problem is the equity issue. The Board doesn’t have raters. The Trier of fact has a thumb and if you win, s/he holds it in the vertical. If you lose, the thumb points down. Thumbs up equals remand back to Little Rock or Detroit for the rating and the $$. Thumbs down means back to the drawing board for a new financial plan.

After the Board gets it back from the Courts above, they, in turn, remand it back to the village idiots at the Fort Fumbles across our fruited plains for the do over. A vacate, reversal or set aside will always entail a reverse remand procedure all the way back down to the Regional level for them to write your decision and award you the baksheesh. Much like death and taxes, you cannot avoid the remand procedure if you get the reprieve above.

So you can see my use of the sweater analogy for this. If your claim (now an appeal) gets all the way to the Court, you have to unravel the sweater back to the dropped stitch and fix it. Fixing it doesn’t guarantee getting it fixed it correctly. VA is renowned for screwing it up and making the same mistake again. Fortunately, when this happens, the Board or the Court loses patience with the lower tribunal and opts to just grant and avoid repetitious remands.

This is why you, Johnny Vet, want to get all the factfinding, independent medical opinions and testimony accomplished below and take your denial up to the Board  “clean” as a direct review. The last thing you want is to arrive with a good case but no medical opinion. If you do, chances are the Board will remand it back to the AOJ (Agency of Original Jurisdiction) and you’ll get a brand new bogus c&p that says “it’s less likely than not that Johnny Vet’s PTSD occurred at Camp English.” Shedden v. Principi is why the Independent Medical Opinion field sprang up.

Remands are a fact of life but you can avoid them at the Board, as I said, by simply checking all the boxes, assembling all the facts and preparing carefully before you go up to there or to the Court. I’ve never been able to fathom why, in this new day and age of the AMA, why anyone’s attorney, Agent or VSO would go up on appeal with a fistful of VA c&p exams denying your claims expecting them (the board or the Court) to grant and remand it  back for a rating. Don’t get me wrong. I’m a firm believer in a positive mental attitude but you don’t win with it. You use facts and medical opinions to support your win-not wishful thinking.

In the old Legacy system, a denial at the Board left you only one recourse- the Court. In AMA, if you get the bum’s rush at the Board, you can still save your bacon by making a quick u-turn and go back down below to get the IMO and still preserve your filing date. This way you can conceivably keep getting remands for your legal stupidity and eventually find a Sherpa to refile a supplemental claim with what is needed to prevail. After all, you’re entitled by law to get an explanation of what it is you lack to  win.

I have a client in a nursing home who was totally dependent on his California Dept. Of Vet Affairs VSO. The VSO, now in the new AMA after Legacy, kept filing do overs for his PTSD denials on a 526. VA kept sending them letters back saying ‘wrong form bro’. They didn’t say “use a 995.” They just said “You’re using the wrong form.” Mr. VSO proceeded to refile again on a 526. Lather. Rinse. Repeat. The poor Vet went through this 4 times before I showed up. I cut the Gordian Knot and filed the 995. VA denied and we got the 2680 saying a&a was needed. VA still denied and I won at the Board. Something that simple had hung this poor Vet out to dry for 2 years. There are no remands at the local level. Either you figure it out for yourself or your VSO does. Failing that, you’re screwed.

Building a claim is an art form. It’s like baking cookies. If you don’t include all the ingredients, you’re going to have problems. Even if you do construct it properly, VA can still screw it up. The Board is not perfect either. Remember, it isn’t the Judge who builds the legal argument for or against. S/he has a group of legal beagles who analyze the issue, search the statutes and regulations and present their valued opinion as to whether the Judge should grant or deny. If they forget to look at a particular regulation, they’ll come up with a flawed answer. If you have a lazy Judge who blindly accepts their advice, you get a flawed denial. Garbage in. Garbage out.

Nobody is perfect in this business. That’s why we have the Federal level Courts. They don’t report to the Secretary.  But even they can miss the mark if they rely on flawed legal reasoning. The best example of that recently is Barry vs. Denis the Menace. The Secretary and his forebears misread §3.350(f)(3) for seventy nine years to say you could only have one (1) 1/2-step bump. The CAVC felt it passed muster too. It escaped judicial review for that long until Jim Perciavalle held their noses to the grindstone all the way to the Fed Circus and got it sorted. Even exalted fellers with big ass JDs and magna cum laudes after their names continued to misread what Congress intended because they thought their shit didn’t stink.

The advent of the AMA, in theory, almost makes the CAVC an anachronism in this day and age unless it’s a conundrum that’s been an article of faith for over a half a century. Walker v Shinseki is a classic example of misapplying §3.303(b) for decades and then finally reading it correctly. This is the beauty of SMC law that I relish. In case you didn’t notice, VA is hell bent on keeping SMC cases out of the Federal Courts for one reason. Every time they decide to stand and fight, you have results like Akles, Bradley (v. Peake), Buie, Jensen and Barry that overturn established law in favor of Veterans.

I’ve noticed that VA will more often than not grant my SMC claims for the higher levels of SMC at the Board rather than go toe-to-toe with me and take it up to the Court. If I lost every time, I reckon I’d be a tad gun shy of this, too. But, sadly, it still requires about 3 or 4 remands to unravel the sweater at the local level to get the Magic Paper. Yes. It sucks. I didn’t make the rules but I’ve learned how to exploit them to win your claims.