Mandamus petition dismissed, Claim granted

[Berta]

Case Number:20-3907	Docketed: 06/05/2020
Luis Negron-Ortiz v. Robert L. Wilkie
Appeal From: Department of Veteran Affairs
Fee Status: dfh

 

"On June 5, 2020, the petitioner, Luis Negron-Ortiz, through counsel filed a petition for extraordinary relief in the form of a writ of mandamus compelling the Secretary to take immediate action to implement a December 6, 2019, Board of Veterans' Appeals decision that granted a disability rating of 20% for right and left lower extremity diabetic peripheral neuropathy and a 70% disability rating for post-traumatic stress disorder (PTSD), both throughout the claim period, and a total disability rating based on individual unemployability from January 1, 2009; and remanded the issue of entitlement to an effective date for PTSD earlier than May 30, 1997. Petition at 1-2, 8; Appendix at 9-18. The Secretary responded to the petition on June 18, 2020, and asserted that a VA regional office issued a rating decision on June 15, 2020, implementing the awards. Secretary's Response at 2-4. Later the same day, the petitioner filed an unopposed motion to voluntarily dismiss the petition. Motion at 1. Accordingly, it is ORDERED that the petitioner's June 18, 2020, motion is granted. It is further ORDERED that the petitioner's June 5, 2020, petition for extraordinary relief in the form of a writ of mandamus is DISMISSED."

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=20-3907&incOrigDkt=Y&incDktEntries=Y

Maybe the petitioner sent a copy of this writ to the VARO---I cannot tell if that caused the RO to act swiftly on his claim or not-

and I assume he still has an EED claim still open. Very unusual to see this type of situation.The veteran, upon receipt of the award ( this also was a hardship case) correctly filed the Motion to dismiss the Writ.

 

 

Edited June 30, 2020 by Berta

[broncovet]

Thank you for posting this, Berta.  Its helpful, because knowledge is power.   

The problem I see is this:  This gives the RO "carte blanche" authority to simply ignore BVA (or CAVC orders) and simply not implement them unless the Veteran complains.  

Even when the Veteran complains, those complaints obviously fell on deaf ears.  

Of course, the worst part is a denial of this writ so that VARO is free to repeat the procedure, with no fear of a writ being granted.  

Quite simply, its inefficient, irresponsible, and down right unacceptable performance by the VARO which, the court simply turns a blind eye to by dismissing the writ.  In this instance, the dismissal of the writ was unopposed, but, Im not sure this is in all Veterans best interest.  

As far as I know, a Writ is "the only" way we can get a stubborn RO to do things they are required to do, and that, was only effective for THIS Veteran.  

The next Veteran the VARO does this to,  may not have an attorney at his disposal to file a writ, and few Veterans have the skills needed to file a writ.  Instead, I would like to force VARO to compliance on a wide scale.  We should not have to "beg" the VARO to comply with BVA/CAVC remands.  

This puts the burden "on the Veteran" for irresponsible and unacceptable VARO behavior, over  which the Veteran has no control.  

Instead, the burden "should be on the VARO" to implement.  They should be given a real time limit, and be fully expected to comply in the entirety..and answer and be held accountable, if they fail to comply.  

This is another example of "lack of accountability" here, where the court simply turns a blind eye to this, instead of actually compelling the VARO to do their job when they have failed to do so.  

After a Veteran weaves his way through a complex application and appeal process, and wins his benefits, the burden of implementing these timely should be on the VA, not on the Veteran.  

This dismissal switches the burden "to the Veteran"..to force the VARO into compliance.  Without a doubt, Veterans are forced to comply with VA regulations, and, indeed, the VARO needs to be compelled into complaince and to be held accountable when they fail to do so.  

Thanks for letting me vent.  

[Buck52]

Interesting case  I need to keep this and watch this to see what they do with his EED.

I COULD BE WRONG BUT HAD HE NOT FILED THE WRITE  THINGS MAY HAVE HAD A DIFFERENT OUTCOME.

SOMETIMES , NOW  I   AM JUST GUESSING ON THIS BUT WHEN A VETERAN OR HIS ATTORNEY FILES A WRIT,   THAT SEEMS TO MAKE THE VA TAKE MORE ATTENTION AND SOLVE THE VETERANS CLAIM  AND HAVE THE WRITE DISMISSED

''writ of mandamus is DISMISSED."

Edited June 30, 2020 by Buck52