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Sean Kendall

Inexcusable VA Delay Results In Orders From Appeals Court


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10/31/2014
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Our office routinely receives, in response to questions of when a long-pending VA case will be decided, vague statements from VA officials such as “the veteran is in line with everybody else” or “whoever is assigned to work this veteran’s case will get to it when they can.” A prominent official at a VA Regional Office in the Southeast even told me, last year, “I’m sick of you asking specific questions about cases” when I requested the status of a case his office had clearly been ignoring.

That kind of work ethic, especially regarding a disabled veteran who served our country, is simply not good enough. And, under federal law, lack of action on a VA case can sometimes, in fact, be illegal.

Recently, the Court of Appeals for Veterans’ Claims issued two orders agreeing that VA is often not processing claims in what might be considered an “acceptable” manner. In both cases (14-2719 and 14-3006) a veteran, through his counsel, filed a writ of mandamus with the Court in an effort to make it aware that a VA Regional Office had been unabashedly ignoring an appeal for several years.

In both cases, the VA Regional Office in question issued, in obvious panic, a decision within days of the writ being filed and then essentially told the Court that no significant delay or problem existed. In one case, the veteran had been waiting 848 days for a decision on whether his service-connected disabilities prevent him from working (and effectively entitle him to Total Disability Based on Individual Unemployability, aka TDIU). In response to that veteran’s writ of mandamus filed at the Court, a VA Regional Office representative told the Court that “the average days pending (nationwide) between a Notice of Disagreement [appeal of an original VA decision] to Statement of the Case [decision on an appeal] was 624 days.”

Fittingly, the Court responding by saying “That VA might consider 624 days to be an acceptable period in which to provide a veteran with an explanation for a decision already rendered is almost incomprehensible.”

Though the Court dismissed both writs of mandamus as moot due to VA’s obvious rush to release decisions before the Regional Offices in question could be censured publicly, the Court did not pull any punches in their opinion of the VA’s obvious ignoring of these veterans’ cases. One veteran had been waiting two years after a medical opinion for his Regional Office to do any work whatsoever on his case. The other, despite filing a motion for expedited service based on financial hardship, had been waiting three years for a Statement of the Case, despite the fact that his case had been remanded by the Board of Veterans’ Appeals in 2010 and was thus, under law blatantly ignored by the Regional Office, afforded expedited treatment.

While the writs in question did result in activity from VA, there is no reason to consider the writs “moot” simply because they resulted in panic-stricken responses from VA. The court, in one of its orders regarding the egregious delay in these veterans’ cases, stated that it “trusts that VA will in [the] future adjudicate these matters in an expeditious manner and that further petitions for extraordinary relief will not be necessary.” But the problem is not solved, and we are here to advocate on your behalf to ensure that blatant lack of action by VA on veterans’ disability claims will not be tolerated.

If you need help filing an appeal or completing work on a pending appeal, be sure to give the office of Attorney Sean Kendall a call at 877-629-1712.



Category: Veterans Affairs


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