Im considering a Writ of Mandamus. I applied for TDIU in 2002, with the initial application. It was not adjuticated for 6 years, in 2008, where it was denied. I appealed and it finally went to a board remand in 2012, more than 10 years later. It took the RO 3 more years (and letters to Allison Hickey) to get the VARO to comply with the remand, even tho the remand required "expiditious treatment". Here we are 14 years later, and I am still waiting. Not once did the VA consider, in 14 years, the 5 medical professionals (all VAMC) who all opined favorably over this same 14 years.
I call that an "egregious" delay, which continues. I am considering arguing that this amounts to a denial of due process under 3.103. While Im not the only Veteran this has happened to, Im not sure the others filed a similar Writ. I consider a 14 year delay a denial of due process, with the VA showing "no intention" of compliance. Im gonna ask the court to "set a limit" on the amount of time the VA will take on a claim, and for that limit to be 10 years or less. Its counter to the "pro claimant system" to allow VA to take more than a decade to process a claim.
The courts wont do anything about "the backlog", but this is more than that. You see, the BVA requires cases be done in docket number order, and we should not be having 2002 cases heard now, as thousands and thousands of Veterans have "jumped" ahead of me...Virtually all of the Veterans who applied between 2002 and 2006 have had their claims completed.
YOur thoughts?
§ 3.103 Procedural due process and appellate rights.
(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3. (1) General. Claimants and their representatives areentitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. (2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken. (3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances: (i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts. (ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report. (iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required. (iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement). (v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see § 3.654 regarding active service pay). ![]()
