ACTION BY COURT: Denied (en banc) DECISION DATE: 2/23/98
FACTS: The veteran was stationed in Osaka, Japan, from September to December 1945. In March 1989, he filed a claim for SC for breast cancer due to exposure to ionizing radiation during World War II. Records show that the diagnosis of the veteran’s claimed breast cancer was malignant melanoma (skin cancer) which resulted in a radical mastectomy during the excision of the melanoma. On April 8, 1997, after the Regional Office (RO) denial and three BVA remands, the Board found that the veteran had “never participated in the occupation of either Hiroshima or Nagasaki, as defined at 38 C.F.R. § 3.309(d)(3)(vi).” Concurrently, the Board remanded the claim in order for the RO to obtain further dosage estimates of the veteran's exposure to ionizing radiation during his service in Japan and to conduct further evidentiary development provided for by 38 C.F.R. § 3.311 based on both an eight-hour visit to Hiroshima as early as October 7, 1945 and later exposure resulting from his eating off of tables covered with aluminum sheets salvaged from Hiroshima. On May 14, 1997, the veteran filed a request for extraordinary relief to assure that he received his due process rights in his lifetime, because his appeal had been remanded by the Board a total of four times. The actual relief sought through the petition was an order directing the Board of Veterans’ Appeals (BVA) to decide his claims without further remand.
ANALYSIS: In Erspamer v. Derwinski, 1 Vet. App. 3 (1990), the Court held that it has authority to grant extraordinary relief in aid of its potential jurisdiction. In order to show entitlement to the writ, the petitioner must satisfy a two-part test. First, he must demonstrate a clear and indisputable right to the writ. Second, he must show that he lacks an adequate alternative means to obtain the relief sought.
In this case, the Court held that the veteran’s allegations do not evidence a clear and indisputable right to the writ. The delay involved, although frustrating to the petitioner, must be unreasonable under all circumstances before the Court will inject itself into the administrative agency’s adjudicative process. Here, the circumstances are not so extraordinary as to justify the Court’s exercise of its All Writs power. The exhaustion of the petitioner’s appellate remedies may secure the relief he ultimately seeks, and if not, he has the remedy of timely appeal as a right to the Court. For that reason, the Court denied the petition for an extraordinary writ because the veteran had not shown that he lacked an adequate alternative means of obtaining a BVA decision on the question of service connection.
RECOMMENDED VBA ACTION(S): None. As in previous single judge denials of petitions for extraordinary relief, the en banc Court has held that the claimant must exhaust all VA administrative procedures before the Court will inject itself into the case. This decision has no impact on VA policy, regulations, or procedures. However, the Court in all of its decisions has repeatedly pointed out that VA is required to expedite the remand proceedings when the BVA orders a remand. At this time, it is not known how the Court would react to a petition for extraordinary relief where the delay was determined to be unreasonable under all circumstances. Such a case could potentially result in sanctions against VA.
Question
allan
DECISION ASSESSMENT DOCUMENT
DOCKET NO.: 97-749 ACTIVITY: RATING
NAME: Nash v. West
ISSUE(S): Writ of mandamus
ACTION BY COURT: Denied (en banc) DECISION DATE: 2/23/98
FACTS: The veteran was stationed in Osaka, Japan, from September to December 1945. In March 1989, he filed a claim for SC for breast cancer due to exposure to ionizing radiation during World War II. Records show that the diagnosis of the veteran’s claimed breast cancer was malignant melanoma (skin cancer) which resulted in a radical mastectomy during the excision of the melanoma. On April 8, 1997, after the Regional Office (RO) denial and three BVA remands, the Board found that the veteran had “never participated in the occupation of either Hiroshima or Nagasaki, as defined at 38 C.F.R. § 3.309(d)(3)(vi).” Concurrently, the Board remanded the claim in order for the RO to obtain further dosage estimates of the veteran's exposure to ionizing radiation during his service in Japan and to conduct further evidentiary development provided for by 38 C.F.R. § 3.311 based on both an eight-hour visit to Hiroshima as early as October 7, 1945 and later exposure resulting from his eating off of tables covered with aluminum sheets salvaged from Hiroshima. On May 14, 1997, the veteran filed a request for extraordinary relief to assure that he received his due process rights in his lifetime, because his appeal had been remanded by the Board a total of four times. The actual relief sought through the petition was an order directing the Board of Veterans’ Appeals (BVA) to decide his claims without further remand.
ANALYSIS: In Erspamer v. Derwinski, 1 Vet. App. 3 (1990), the Court held that it has authority to grant extraordinary relief in aid of its potential jurisdiction. In order to show entitlement to the writ, the petitioner must satisfy a two-part test. First, he must demonstrate a clear and indisputable right to the writ. Second, he must show that he lacks an adequate alternative means to obtain the relief sought.
In this case, the Court held that the veteran’s allegations do not evidence a clear and indisputable right to the writ. The delay involved, although frustrating to the petitioner, must be unreasonable under all circumstances before the Court will inject itself into the administrative agency’s adjudicative process. Here, the circumstances are not so extraordinary as to justify the Court’s exercise of its All Writs power. The exhaustion of the petitioner’s appellate remedies may secure the relief he ultimately seeks, and if not, he has the remedy of timely appeal as a right to the Court. For that reason, the Court denied the petition for an extraordinary writ because the veteran had not shown that he lacked an adequate alternative means of obtaining a BVA decision on the question of service connection.
RECOMMENDED VBA ACTION(S): None. As in previous single judge denials of petitions for extraordinary relief, the en banc Court has held that the claimant must exhaust all VA administrative procedures before the Court will inject itself into the case. This decision has no impact on VA policy, regulations, or procedures. However, the Court in all of its decisions has repeatedly pointed out that VA is required to expedite the remand proceedings when the BVA orders a remand. At this time, it is not known how the Court would react to a petition for extraordinary relief where the delay was determined to be unreasonable under all circumstances. Such a case could potentially result in sanctions against VA.
ACTION BY DIRECTOR, C&P SERVICE:
Approved?
_X_ ___ _____________/s/____________________ 3/19/98
Yes No Kristine A. Moffitt Date
SOURCE:http://www.warms.vba.va.gov/Cova/DADS/98DADS/NASH.DOC"" target=_blank"> http://www.warms.vba.va.gov/Cova/DADS/98DADS/NASH.DOC
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