Wednesday, September 21, 2011

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

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)." ==================== ---------------------------------------------------- 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. 2 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) 3

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