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Expiditious Treatment Of Remands

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2.16. Expeditious Treatment of Remanded Claims

VA has a statutory obligation to expeditiously process remands from the Court. This means that not only must VA ensure that it completes the Court-ordered task, it must do so in an "expeditious manner." 38 U.S.C. §§ 5109B, 7112. According to the Court, an expeditious manner is characterized by promptness and is synonymous with swift, speedy, fast, and rapid.

The Court has also ruled that "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." 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." The Court has further stated that the "failure of VA to comply with the obligation to process Court remands expeditiously, under certain circumstances is the same as noncompliance with the remand order itself," even if the Secretary later complies with the substance of the order." See Harvey v. Shinseki, 24 Vet. App. (2011).

As a result, "expeditious" handling means that claimants who received a remand from the Court to the Board orfrom the Board to a VARO, have a legal right to quicker (or priority) handling of their claims. Failure of VA to process a remanded claim within a "reasonable" time is a ground for a petition to the Court for an order to VA to process the claim. This is a very powerful right, if used appropriately.

The Court, however, has made clear that "where delay is the result of an overburdened system, rather than a disregard for the importance of compliance with a Court order" it will not force VA to act on a petition. As the Court stated, it will "not blindly issue writs or sanctions" and "will carefully consider whether action must be taken" should such petitions be misused. This means that the claimant must have waited a "reasonable" time and have made several efforts to contact VA requesting that a decision be made.

Sadly, as the claims backlog has grown, the "reasonable" time for VA to process a remand appears to have also grown, as have the Court's requirements for giving the VA chance to do the right thing without the Court's intervention. How long is too long for VA action and how many contacts with VA is enough depends on the individual case, but certainly means at least 6 months and two specific written requests to VA for action. Recent Court decisions, however, have identified "two and a half years" as "not unreasonable." Claimants who are experiencing very long delays with remanded claims may want to consider hiring an attorney experienced in this area, as it can be tricky.

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