On the offbeat chance you have to fight your way up to the CAVC for justice, you will probably be offered the JMR by the VASEC’s henchmen. Judging by their track record, this appears to be the most likely scenario.

Let’s say you patiently argued with good Internet information, pertinent articles and a strong, well-reasoned nexus but still lost at the BVA. Hey, it happens and all it takes is one bozo judge who is myopic. You’ve filed your NOA and paid the $50.00. You’ve waited your turn patiently and they finally call your number. You’ve filed your informal brief stating your contentions on how they ignored your evidence and the medrecs. You’ve laid it all out in black and white with yellow high lighter. A blind man could follow this trail of evidence and see your entitlement. In short, you make your case.

The General Counsel team of crackerjack law dogs rolls out their contention that it’s plausible about the guns and besides, you have no proof in the SMRs showing they used jetguns. Suddenly, right when its time to shit or get off the pot, the GC crew throw up their hands and say “Hold the phone, your Honor(s).  Mr. Nod is correct. We forgot to consider that he’s capable of testifying that they used jetguns because that doesn’t require any medical knowledge.  We’d like a Joint Motion for Remand to delay this for about a year or two and rule on it all over again. Our Bad. How about you, Mr. Nod? That okay for the ol’ JMR and another five years on the claim train?”

If you have a law dog and your case is air tight, he may ask for reversal. I would. Screw this JMR crap. It happens every time they have an arcane interpretation of old law. Hell, it can be said it happens every time period.They struggle to twist it around into an unrecognizable image of it’s former self. When the Court removes the lipstick, the pig emerges. Once unmasked, the General Counsel go into JMR mode as if you’ll be overjoyed at the prospect of old age and yet another crack at “meaningful” justice. They have purposefully played you for a year just to ask  you and the Court for a do over at the Vermont Ave. House of Mirrors. This is no accident and you should incorporate it into your informal appeal because the odds of it occurring are huge. I’d be tempted to insert some paragraph that says ” Since it’s anticipated that the VASEC, through his GC, will be asking for  JMR, we politely decline their invitation and ask the Judge(s) to rule on our case here and now. Endless litigation is not in our interests even if the GC finds it entertaining. I’m getting older and need closure, not more obfuscation.”

Making the JMR a sine qua non in every adjudication seems to be a normal function on appeal and it shouldn’t. Remands should be due to a judicial error in a prior adjudication that is caught and rectified. Taking a stubborn, indefensible stance in opposition to everyVeteran’s claim all the way to the Court and then readily admitting fault should be dealt with severely. Wasting judicial resources should be grounds for punishment. When it becomes so blatant and frequent as it is now, reversal may be the way to “open a dialogue” with the General Counsel. After a year or two of that, they might decide to revamp and reorder their litigation posture.

JMRs seem to be the default setting about five minutes into the GC’s rebuttal at oral argument.  The problem goes back to the inception of the VJRA of 88. The idea of ex parte justice is an informal setting in which the Veteran feels comfortable and isn’t “put on trial”. In a more perfect VA world, a true ex parte  process would entail all parties coming to the table and having an orderly discussion on the merits, evidence, testimony and a legal briefing. All parties could reconvene with anything lacking in a fortnight to rebut prior contentions. A modus vivendi might be arrived at without so much as a  beer summit. At any rate, the operable action would be the interaction and openness of the process and the elimination of misconceptions or errors of judgement. Appeals would almost become unnecessary. With everything resolved to everyone’s satisfaction in a meaningful “impromtu trial”, little would be left to argue but the effective date and trading phone numbers with the cute 38 year old DRO who was winking at you.

Since we do not live in this faerytale world of make believe, we are condemned to the true VA ex parte world. That is the one where you patiently assemble everything  and label it all very carefully as Exhibit A,B,C etc. VA thereupon unstaples everything and mixes it up with God only knows who else’s C file. Any semblance of continuity evaporates and your claim is effectively compromised. You can scream at the top of your lungs, send it all in reassembled, and cry foul. You will get no response. It’s like yodeling and hearing yourself echo off the canyons. Ex parte is a one way street until you receive the decision. You won’t even know these guys received anything until you hear about it three years later. No discussion, no interaction, no notification of something minor amiss. In a word, no communication. Sometimes a remand from the AMC goes out and you are clueless. Your claim can lie fallow for years and you would not be the wiser.

Come oral argument day up at Indiana Ave., all of a sudden they determine what they should have done in 2008;  they’re absolutely apoplectic at their error and all they want to do is make it right with the ol’ MFR. The problem never seems to resolve. Each case that comes up is dealt with identically. The interaction that would avoid this is nonexistent.  Most Veterans will tell you that if they lost on appeal, the same exact argument used to deny at the RO was re-employed at the BVA with few variations. A total disconnect exists unless and until they are standing in front of the CAVC. Suddenly the EPIPHANY shines through the room and the GC “gets it”.

A MFR is not always the panacea you hold it out to be. This can be a Come to Jesus moment for the VA and you may get all you claim. Other times it’s rank subterfuge to reconstruct a better denial that passes judicial muster. Often it boils down to the phraseology of the decision. Obviously, a viable decision vacated and remanded for 3rd grade legal errors is a poor candidate for a necktie party. The JMR is useful where the Vet’s claim looks like it has encountered a spike strip to each wheel.  Most are the product of a smoke ring-blowing exercise gone awry.

A JMR is couched as a mutual decision between appellant (you) and appellee (VASEC). The Court is not always amenable to this unless you truly are a willing participant. Ofttimes, the Court will ignore this request and remand for totally different reasons which are always Veteran friendly ones. On the rare occasion, they will reveal their displeasure with the VASEC’s arrogance and go further. VA can see which way the wind is blowing and rarely comes back with an unhappy Veteran at the podium. If you’re running a 60% error rate, it’s bad form to keep coming back with yet more mistakes on the do over. Best to take it on the chin and start anew with another Vet and another request for JMR.