Most Veterans advocates indicate an appeal at the BVA level will take about 4 to 5 years, sadly, this number is on the increase. I appealed to the Board a August, 2002 decision, went to the board about 18 months, in January 2004, and it was implemented by Feb. 2004. So in less than 2 years, I went from RO decision to board decision to RO implementation.
Its gotten much worse. In 2009, I appealed a RO decision that finally went to the Board 3 years later, in 2012. However, I still have not gotten the Board remand implemented in another 2.5 years, so the total time is now 6 years and counting.
Here are the regulations and case law on delays, with my emphasis in bold:
The Secretary has a statutory obligation to expeditiously process remands from this Court. Thus, not only must the Secretary ensure that he completes the Court-ordered task, he must do so in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court's dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits. See Erspamer v. Derwinski, 1 Vet. App. 3 (1990) (discussing delay in administrative action and public confidence).
Furthermore, the Secretary's obligation to process Court remands expeditiously is integral to this Court's jurisdictional authority to remedy unreasonable delays in the processing of veterans' claims. See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659–660 (D.C. Cir. 2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet. App. 552, 557 (2007) ("With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review. A decision of the Board can only be appealed to a single venue—this Court." (citing 38 U.S.C. § 7252(a))). Therefore, failure by the Secretary to comply with his obligation to process Court remands expeditiously, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order. Harvey v. Shinseki, 24 Vet. App. 284, 288 (2011).
"While there is no absolute definition of what is reasonable time, we know that it may encompass 'months, occasionally a year or two, but not several years or a decade.'" Community Nutrition Institute v. Young, 773 F.2d 1356, 1361 (D.C. Cir. 1985) (quoting MCI Communications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980). Erspamer v. Derwinski, 1 Vet. App. 3, 10 (1990). When delay is alleged as the basis for a petition for writ of mandamus, a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demand on and resources of the Secretary, that it is equivalent to an arbitrary refusal to act. Compare Costanza v. West, 12 Vet. App. 133, 134 (1999) (per curiam order) (addressing an 11–month delay and finding the petitioner did not demonstrate that he lacked alternative means of relief when he did not undertake to resolve delay prior to filing the petition), with Erspamer v. Derwinski, 1 Vet. App. 3, 11 (1990) (addressing a three-year delay and finding petitioner had no adequate alternative means for relief when she contacted the regional office more than 30 times before filing her petition with the Court).
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broncovet
How long will my appeal take?
Most Veterans advocates indicate an appeal at the BVA level will take about 4 to 5 years, sadly, this number is on the increase. I appealed to the Board a August, 2002 decision, went to the board about 18 months, in January 2004, and it was implemented by Feb. 2004. So in less than 2 years, I went from RO decision to board decision to RO implementation.
Its gotten much worse. In 2009, I appealed a RO decision that finally went to the Board 3 years later, in 2012. However, I still have not gotten the Board remand implemented in another 2.5 years, so the total time is now 6 years and counting.
Here are the regulations and case law on delays, with my emphasis in bold:
The Secretary has a statutory obligation to expeditiously process remands from this Court. Thus, not only must the Secretary ensure that he completes the Court-ordered task, he must do so in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court's dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits. See Erspamer v. Derwinski, 1 Vet. App. 3 (1990) (discussing delay in administrative action and public confidence).
Furthermore, the Secretary's obligation to process Court remands expeditiously is integral to this Court's jurisdictional authority to remedy unreasonable delays in the processing of veterans' claims. See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659–660 (D.C. Cir. 2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet. App. 552, 557 (2007) ("With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review. A decision of the Board can only be appealed to a single venue—this Court." (citing 38 U.S.C. § 7252(a))). Therefore, failure by the Secretary to comply with his obligation to process Court remands expeditiously, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order. Harvey v. Shinseki, 24 Vet. App. 284, 288 (2011).
"While there is no absolute definition of what is reasonable time, we know that it may encompass 'months, occasionally a year or two, but not several years or a decade.'" Community Nutrition Institute v. Young, 773 F.2d 1356, 1361 (D.C. Cir. 1985) (quoting MCI Communications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980). Erspamer v. Derwinski, 1 Vet. App. 3, 10 (1990). When delay is alleged as the basis for a petition for writ of mandamus, a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demand on and resources of the Secretary, that it is equivalent to an arbitrary refusal to act. Compare Costanza v. West, 12 Vet. App. 133, 134 (1999) (per curiam order) (addressing an 11–month delay and finding the petitioner did not demonstrate that he lacked alternative means of relief when he did not undertake to resolve delay prior to filing the petition), with Erspamer v. Derwinski, 1 Vet. App. 3, 11 (1990) (addressing a three-year delay and finding petitioner had no adequate alternative means for relief when she contacted the regional office more than 30 times before filing her petition with the Court).
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