Veteranclaims’s Blog

September 21, 2011

Single Judge Application, Remand Delays, Harvey, 24 Vet.App.at 288

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 3:20 pm

Excerpt from decision below:
“However, if the Secretary fails to expeditiously complete the processing of this case and the Court’s remand, the petitioner may file another petition and the Court will once again have to consider whether the Secretary has been reasonably diligent and energetic in his attempts to fulfill the Court’s remand order. See Harvey, 24 Vet.App.at 288 (stating that the Secretary’s duty to expedite is an inherent component of the Court’s remand power that merits suitable urgency and attention from the Secretary); see also Espamer v. Derwinski, 1 Vet.App. 3 (1990).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-470
FRANCIS NOBLE, PETITIONER,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before LANCE, Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
I. BACKGROUND
On February 14, 2011, the pro se petitioner filed a petition asking the
Court to order the
Secretaryto “finalize” his remanded claim for entitlement to service
connection for bilateral hearing
loss. The petition at hand stems from an appeal decided by the Court on
August 24, 2007. In that
decision, the Court remanded the petitioner’s bilateral hearing loss claim
so that the Board could
obtain medical records from the Federal Aviation Administration (FAA),
provide an adequate
medical examination, and also provide an adequate statement of reasons or
bases for its findings
concerning notice pursuant to 38 U.S.C. § 5103. See Noble v. Nicholson,
No. 05-2878, 2007 WL
2429854 (Vet. App. Aug. 24, 2007). On April 11, 2011, the Court ordered
the Secretary to respond
to the petitioner’s assertions.
On April 26, 2011, the Secretary submitted a response. In his response,
the Secretary stated
that in September 2008, the petitioner’s case was remanded to the Appeals
Management Center
(AMC) for further development. He further stated that the petitioner was
scheduled for a February
17, 2009, audiological examination. However, the Secretary admitted that
the notice was mailed to
the wrong address. As a consequence, the petitioner apparently did not
report for his scheduled
examination. The Secretary also informed the Court that on April 14, 2011,
the petitioner was sent
notice that he would be scheduled for another audiological examination.
In light of the considerable delay involved in the processing of the
petitioner’s remand, the
Court ordered the Secretary to provide the Court with a supplement
concerning VA’s progress in
meeting the requirements of the Court’s August 2007 remand. As detailed in
the Secretary’s

response and additional supplemental responses, completion of the
required medical examination
has been complicated by the appellant’s relocation to Mexico. However,
on September 6, 2011, the
Secretary filed a supplemental response indicating that the petitioner had
finally received an
examination and an opinion that appears adequate for rating purposes.
II. ANALYSIS
A. Entitlement to a Writ
This Court has adopted the case-or-controversy jurisdictional requirements
imposed by
Article III of the U.S. Constitution. Aronson v. Brown, 7 Vet.App. 153,
155 (1994). Where the
relief sought by a petition for extraordinary relief has been afforded,
the petition is moot. See
Chandler v. Brown, 10 Vet.App. 175, 177 (1997) (per curiam order); Thomas
v. Brown, 9 Vet.App.
269, 270 (1996) (per curiam order). In this case, the petitioner has
sought compliance from VA with
the Court’s August 2007 remand order that required the Secretary to obtain
the petitioner’s medical
records from the FAA, provide an adequate medical examination, and also
provide an adequate
statement of reasons or bases for its findings concerning notice under 38
U.S.C. § 5103. See Noble,
supra. Based on the supplements submitted bythe Secretary, the
petitioner’s FAArecords have been
obtained, he has received a new audiological examination, and he will be
in receipt of a decision
shortly. Accordingly, the petitioner has received the relief he is
entitled to and his petition must be
dismissed as moot. See Chandler, supra.
B. Sanctions
The Court acknowledges that the petitioner seeks sanctions for the
considerable delay in the processing of his case. However, sanctions are appropriate only where the
delay in the processing of a Court remand is the result of “gross negligence and a gross lack of
diligence” on the part of the Secretary. Harvey v. Shinseki, 24 Vet.App. 284, 287 (2011). In this case,
the delay in the petitioner’s claim seems to have been caused by an incorrect mailing by the AMC and by
the claim being placed in deferred status while other work was being performed on different
claims associated with the petitioner. The Court, in this case, finds that the Secretary’s conduct,
although not ideal and approaching negligent, has not reached the level of gross negligence and
lack of diligence required for a civil contempt sanction. Id. Accordingly, the Court will not order
sanctions at this time.
However, if the Secretary fails to expeditiously complete the processing of this case and the Court’s remand, the petitioner may file another petition and the Court will once again have to consider whether the Secretary has been reasonably diligent and energetic
in his attempts to fulfill the Court’s remand order. See Harvey, 24 Vet.App.at 288 (stating that the
Secretary’s duty to expedite is an inherent component of the Court’s remand power that merits
suitable urgency and attention from the Secretary); see also Espamer v. Derwinski, 1 Vet.App. 3 (
1990). Furthermore, if such an event comes to pass, these proceedings will undoubtedly be
taken into account when determining the necessity of stronger action by the Court.
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III. CONCLUSION
Upon consideration of the foregoing, it is
ORDERED that the appellant’s request for sanctions is DENIED; it is
further
ORDERED that the petition for extraordinary relief is DISMISSED as moot.
DATED: Sept. 15, 2011
BY THE COURT:
ALAN G. LANCE, SR.
Judge
Copies to:
Francis Noble
VA General Counsel (027)
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