Where to find this VA mandate

[jamescripps2]

I am sure that I have read this either in the 38 C.F.R or the 38 U.S.C.   A  mandate, that where there is an option, or choice, the VA is to choose the most favorable option in the best interest  of the veteran. Where can I find this mandate? I am looking in the C.F.R but I have not found it yet.

Thanks

[Buck52]

Here is a pretty good example about filing a writ 

by Sean KenDall   Attorney at Law

A Peition for a Writ of Mandamus is a request to the U.S. Court of Appeals for Veterans' Claims to intervene and force the VA to take action in a case.  However, before asking the court for extraordinary relief, a veteran should send a letter to the VA Regional Office, asking for action to be taken.  As a first step for prompting the VA to act, sending a letter to the VA asking for a status on the claim or asking it to take the next step may work. At a minimum, the letter requires the VA to pull the claimant's file from the shelf and look at it. This may be sufficient for the VA to realize the next step that needs to be taken and to do so.  If you are close by, a visit to the VA is also something that can make the VA take action.

A single letter, however, may not prompt the VA to act. When this happens, we have a tool we can use to prompt the VA to act. This tool is called a “Petition for Extraordinary Relief in the Nature of a Writ of Mandamus.” Or, simply, a writ petition. Writ petitions are separate actions that are filed in the U.S. Court of Appeals for Veterans' Claims that assert that the Secretary of Veterans' Affairs, through his personnel, is refusing to take an action that legally must be taken. Such refusal can be shown through the passage of time or through other proof that VA is not acting on a claim in the way it is legally required to do. Notably, writ petitions cannot be used as a substitute for an appeal of an unfavorable VA decision, and they cannot be used to force the VA to grant a claim that was otherwise denied.

Before filing a writ petition, a letter should be sent to the VA threatening to file a writ petition. The letter should be sent by certified mail or to the fax number for the VA Regional Office to prove that the VA received the letter. The letter should state that, unless the VA responds within a certain amount of time (for example, 10 days), a writ petition will be filed in the court.  If the VA doesn't repond, the next step is to contact the VA Inspector General's Office and ask that they intervene.
 

If VA fails to respond to that letter, then a writ petition may be necessary. Before involving the Court, it must be determined whether there is a legal basis for filing the petition. Such a circumstance would be where VA has expressly stated it will not take a particular legally required action. If delay is the basis of the petition, then that delay must be so extraordinary as to amount to an arbitrary refusal to act. A few months to even a few years will not generally suffice, but a delay of more than a year or two may, depending on the circumstances.

A writ petition must provide a factually valid basis for the court to grant the petition. If so, the court will require the VA to respond to the writ within a short period of time – generally one month.

Ordinarily, the VA will then take some action on the claim. That action may be as little as sending a letter to the claimant or it could be as much as a grant of benefits, or whatever the next legally-required action on the claim may be. If so, this will make the writ petition unnecessary (that is, moot), because the VA has taken the action it had refused previously to take. Although not technically a win on the petition, the VA’s response to the petition by acting on the claim amounts to a successful resolution.

Sometimes, however, the VA will defend its actions and continue to refuse to act. In those circumstances, the judges on the court will decide whether VA’s defense is valid. If not, the judges will order the VA to take the action requested. The VA is then under a court order to do so.

Although many writ petitions are filed, the court grants very few. In fact, since the court’s creation in November 1988, it has granted fewer than five writ petitions. Even though this represents only a small fraction of the number of writ petitions filed, the writ petition remains a useful tool for prompting VA to act.

 

Category: Veterans Affairs