Archive for July, 2009

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How can we force VA to act on my claim? It is taking forever to make a decision!

Friday, July 24th, 2009

We frequently hear complaints from our clients that VA is taking a long time to render a decision on a claim for VA benefits. Given the enormous backlog and understaffing from which VA suffers, this is to be expected.

In fact, delay is inherent in the VA system. After a claim is filed, VA must provide notice to each claimant regarding the information and evidence necessary to substantiate the claim. VA must allow claimants one full year for the submission of that information and evidence before it can decide the claim, although it may decide it faster if the claimant indicates that there is no additional information or evidence to submit. Further, VA must obtain certain records possessed by the federal government and other records that are relevant to the claim if adequately identified by the claimant. Also, if necessary to make a decision on the claim, VA must also provide the claimant with a VA examination or obtain a VA medical opinion. VA must then review all of the evidence and determine whether there is enough to decide the claim and, if not, it must continue working to develop that evidence.

Of course, each step in the process takes time. Ideally, VA should also provide claimants with notification of what is happening on the claim, but it does not always do so.

At some point, it becomes clear that VA is not taking any action on a claim. This may become apparent through the passage of an extraordinary amount of time since the last VA action on a claim, or VA may expressly say that it will not take a particular action, despite repeated requests for it to do so.

As a first step for prompting VA to act, sending a letter to VA asking for a status on the claim or asking it to take the next step may work. At a minimum, the letter requires VA to pull the claimants file from the shelf and look at it. This may be sufficient for VA to realize the next step that needs to be taken and to do so.

A single letter however may not prompt VA to act. When this happens, we have a tool we can use to prompt VA to act. This tool is called a “Petition for Extraordinary Relief in the Nature of a Writ of Mandamus.” Or, simply, a writ petition. Writ petitions are separate actions that are filed in the U.S. Court of Appeals for Veterans Claims that assert that the Secretary of Veterans Affairs, through his personnel, is refusing to take an action that legally must be taken. Such refusal can be shown through the passage of time or through other proof that VA is not acting on a claim in the way it is legally required to do. Notably, writ petitions cannot be used as a substitute for an appeal of an unfavorable VA decision, and they cannot be used to force VA to grant a claim that was otherwise denied.

Before filing a writ petition, a letter should be sent to VA threatening to file a writ petition. The letter should be sent by certified mail, return receipt requested, to prove VA received the letter. The letter should state that, unless VA responds within a certain amount of time (for example, 10 days), a writ petition will be filed in the Court.

If VA fails to respond to that letter, then a writ petition may be necessary. Before involving the Court, it must be determined whether there is a legal basis for filing the petition. Such a circumstance would be where VA has expressly stated it will not take a particular legally required action. If delay is the basis of the petition, then that delay must be so extraordinary as to amount to an arbitrary refusal to act. A few months will not generally suffice, but a delay of more than a year may, depending on the circumstances.

A writ petition must provide a facially valid basis for the Court to grant the petition. If so, the Court will require VA to respond to the writ within a short period of time – generally one month.

Ordinarily, VA will then take some action on the claim. That action may be as little as sending a letter to the claimant or it could be as much as a grant of benefits, or whatever the next legally-required action on the claim may be. If so, this will make the writ petition unnecessary (that is, moot), because VA has taken the action it had refused previously to take. Although not technically a win on the petition, VA’s response to the petition by acting on the claim amounts to a successful resolution.

Sometimes, however, VA will defend its actions and continue to refuse to act. In those circumstances, the judges on the Court will decide whether VA’s defense is valid. If not, the judges will order VA to take the action requested. VA is then under a court order to do so.

Although many writ petitions are filed, the Court grants very few. In fact, since the Court’s creation in November 1988, it has granted fewer than five writ petitions. Even though this represents only a small fraction of the number of writ petitions filed, the writ petition remains a useful tool for prompting VA to act.

As always, it is wise to consult with a legal professional before filing a writ petition. This blog is not intended to provide legal advice, and it should not be relied upon as such.

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