Carter v. Shinseki: Joint Motions for Remand discussed

Harmon Carter v. Shinseki, Opinion Number 12-0218, was decided May 20, 2014 and concerns the scope of a joint motion for remand.

The veteran was denied service connection for a back disability, appealed to the Court, and the VA agreed to a remand.  The claim was subsequently denied and appealed again.  The question was whether joint motion for remand involving a veteran represented by an attorney limit the scope of the Board’s independent duty to search the record for issues reasonably raised by the record.

The problem is owed to the fact the attorney waited for the VA to send a 90 day letter, which states the VA will make a decision in 90 days.  The attorney was waiting to review the file and develop arguments and a submission until that letter was sent.  However, the VA sent it to a service organization.  Technically, the attorney received the letter when she received the claims file, but was waiting to review the file until she received the letter.

The Court found “the terms of the joint motion for remand will have a bearing on what might otherwise be reasonably raised by the record.  The Board’s duty to consider issues reasonably raised by the record must be viewed in light of the terms and scope of the joint motion and the fact that the attorneys are presumed to know their case and to tailor their pleadings based on the facts and law.”  Id. at *10-*11.

The Court then determined “when an attorney agrees to a joint motion for remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion.”  Id. at *11.

Fortunately, the joint motion for remand had broad language saying “the Board shall fully assist the veteran with his claim by reexamining the evidence of record and seeking any other evidence that is necessary to support its decision.”  Id. at *12.

The take away from the case might be to demand the broader language quoted by the Board and, for attorneys, not to rely on the 90 day letter from the VA. Importantly, it does not appear that this case will actually limit additional arguments to the Board made by a veteran or an attorney for the veteran, but will require that they are actually made.