Tuesday, September 16, 2014

Carter v. Shinseki

Carter v. Shinseki, 26 Vet.App. 534 (May 20, 2014)
Held: “[W]hen 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 . . . and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed.”

In the course of an appeal at the CAVC, the attorney-represented veteran entered into a joint motion for remand (JMR), which identified errors for the Board to review. After the case was sent back to the Board, the attorney did not submit additional argument or evidence. The Board denied the veteran’s claims again – and the veteran, through his attorney, appealed to the Court again. At the Court, the appellant raised new arguments that he asserted were reasonably raised by the record. However, these arguments were not included in the JMR – and were not raised to the Board on remand. The Court held that a JMR that is entered into by an attorney-represented appellant can limit the Board’s review to the issues specified in the JMR. However, the Court held that, in this case, the JMR included language that would require the Board to address issues that were reasonably raised by the record. [Advocacy note: Incorporate the language from Fletcher v. Derwinski, 1 Vet.App. 394 (1994), that requires the Board to re-examine the record and address any issues that are reasonably raised, into your JMR.]

No comments:

Post a Comment