On October 7, 2014, the Court of Appeals for Veterans Claim (CAVC) published a decision in Roberts v. McDonald (regarding how the offset should occur for surviving spouses both entitled to annuity benefits under the Survival Benefits Plan and VA benefits pursuant to dependency and indemnity compensation (DIC)), and a number of unpublished decisions. While unpublished decisions have no legal precedential value, I commonly find those decisions provide more insight into the pulse of the CAVC and Department of Veterans Affairs (VA).
A common theme I have seen in relation to decisions from the CAVC under the All Writs Act is agency responsiveness. In Myers v. McDonald, the CAVC denied Mr. Myers petition for extraordinary relief in the nature of a writ of mandamus. In essence, Mr. Myers was disputing the Regional Office’s calculation recoupment for military separation pay that occurred in 2006. Mr. Myers was correct. After many years of correspondence — and pursuant to a CAVC ordered VA Secretary response — the Regional Office agreed and provided funds for the amount erroneously recouped in 2006 in September 2014. The CAVC then denied Mr. Myers’ petition because there was no case or controversy for the court to resolve.
As an aside, the CAVC (an Article I court) has adopted the Article III court’s case-or-controversy jurisdictional limitation as a matter of judicial prudence not as an issue of Constitutional imperative. One day shortly, I’ll finish my article on why the CAVC should reconsider its position regarding the case-or-controversy doctrine. . . .
Regardless, in Myers the CAVC felt “compelled to comment on the RO’s troubling practice of not responding to [his] requests for an accounting until he filed his petition with the Court.” The CAVC further commented, “There is simply no place for such artifice in the veterans benefits system, and no claimant should have to resort to a petition for a writ of mandamus to obtain a simple response to correspondence. The Court trusts that VA will take this opportunity to reevaluate its practices regarding claimant correspondence and will begin timely responding to such correspondence in the future.”
Myers clearly evidences what is wrong when the VA Regional Office’s don’t respond to claimant inquiries . . . protracted issues and litigation that frustrate the veteran and contribute to an already over-worked Agency. On a few claims of recent from the Newark VA Regional Office, however, I can offer some insight into how a simple solution has resolved some issues without a letter-writing campaign, Congressional inquires, petitions before the CAVC, etc… The solution was a telephone call response, acknowledging some issues that were pending, what actions the Newark RO was going to take, and — although no information about the outcome — a general reference point for resolution. This permitted me to alleviate some of my concerns, relay the information to the veteran/claimant, and generally stop my next unnecessary action.
Thank you Newark Regional Office . . . and awaiting some recent return calls from some of the other VA Regional Office’s around the country.