Nash v. West

NEBEKER, Chief Judge, filed the opinion of the Court. KRAMER and STEINBERG, Judges, filed an opinion concurring in part and dissenting in part. NEBEKER, Chief Judge: This petition for extraordinary relief in the nature of mandamus is before the en bane court sua sponte. A majority of the original panel would have construed the petition as a notice of appeal from an inferred denial of presumptive service connection for cancer under 38 C.F.R. § 3.309. When the panel opinion, with the author’s dissent, was circulated for internal notice purposes an en banc vote was called for and, by a vote of 5 to 2, was granted. The actual relief sought through the petition is an order directing the board to decide his claims without further remand of a non-presumptive aspect of the claim for the same cancerous condition. The Court holds that an adequate remedy by appeal exists as to both the presumptive and non-presumptive service connection claims if those decisions are adverse to the petitioner. The petition will therefore be denied. I. FACTS The Court does not have a full record of the proceedings, as it would in an appeal, but from exhibits attached to the pleadings the following is known. The appellant served with Headquarters Company, 1136th Engineer Construction Group, and was stationed in Osaka, Japan, from September to December 1945. (The Court notes that the appellant’s service was presumably with the U.S. Army; Further details of the appellant’s service are apparently unavailable because his service records were destroyed in a 1973 fire at the National Personnel Records Center. See Secretary’s Response to Court’s July 3, 1997, Order at n. 2. Moreover, the Board informed the appellant in June 1995 that his ease had been handled by one of two VA employees later charged with tampering with claimants’ records. See Richard L. Nash, BVA 92-01 533, at 2 (Jan. 31,1996).) In March 1989, the appellant filed a claim for service connection for breast cancer due to exposure to ionizing radiation during World War II. After .a VA regional office (RO) denial and three BVA remands of the appellant’s claim, an April 8,1997, decision of the Board found that the appellant had been [93] stationed in Osaka, Japan, from September 28, 1945, to December 6, 1945, but that he had “never participated in the occupation of either Hiroshima or Nagasaki, as defined at 38 C.F.R. § 3.309(d)(3)(vi).” Richard L. Nash, BVA 92-01 533, at 2 (Apr. 8, 1997). The Board again remanded the claim in order for the RO to obtain further dosage estimates of the appellant’s exposure to ionizing radiation during his service in Japan and to conduct “further evidentiary development provided [for] by 38 C.F.R. § 3.311” based on both “an eight-hour visit to Hiroshima as early as October 7, 1945,” and “later exposure resulting from his eating off of ... tables covered with ... aluminum sheets salvaged from Hiroshima.” Id. at 2-3. On May 14, 1997, the now 73-year-old appellant, indicating that his “health is not good,” filed a “request for extraordinary relief ... to assure I can receive my due process rights in my [lifetime],” because his appeal had been “remanded by the Board ... on [November 3, 1992,] June 20, 1994, January 31, 1996, and April 8, 1997[,] for a total of four remands.” After receiving the appellant’s May 14, 1997, petition, the Court issued several orders to the Secretary, and the Secretary responded on August 14, 1997 (Response 1), October 21, 1997 (Response 2), and December 9, 1997 (Response 3). The appellant, on December 17,1997, filed a reply to the Secretary’s responses. II. ANALYSIS In its latest remand decision the Board advised that: Under 38 U.S.C.[ ] § 7252 ..., only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). Nash, BVA 92-01 533, at 4 (Apr. 8, 1997). The Court holds that the Board did not exceed its jurisdiction, under the circumstances revealed here, in reserving final decision on the presumptive claim. The Board had previously remanded for “a radiation dose estimate based on the legally required assumption that the veteran’s service in Japan included temporary duty in the vicinity of Hiroshima.” Richard L. Nash, BVA 92-01 533, at 2 (June 20, 1994). Then in April 1997 it again remanded for a dose estimate based on exposure to metal he had acquired in Hiroshima for use by his unit in Osaka. While these remands are undoubtedly frustrating to petitioner, fragmenting his claim into potentially two appeals to this Court— one of which a majority of the original panel would have imposed on him by recharacteriz-ing his petition — is contrary to well established appellate procedures. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (“This Court will neither review BVA decisions in a piecemeal fashion nor unnecessarily interfere with the [VA] deliberative process.”). Pursuant to the All Writs Act, and as held in Erspamer v. Derwinski, 1 Vet.App. 3, 7 (1990), the Court as a court “established by Act of Congress” (28 U.S.C. § 1651) has authority to grant extraordinary relief in aid of its potential jurisdiction. In order to show entitlement to the writ, the petitioner must satisfy a two-part test. First, he must demonstrate a clear and indisputable right to the writ. Second, he must show that he lacks an adequate alternative means to obtain the relief sought. Id. at 9 (citing Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976)); See also Steffens v. Brown, 8 Vet.App. 142 (1995). The petitioner’s allegations do not evidence a clear and indisputable right to the writ. "While a fourth remand by the Board may be unfortunate, ordering the Defense Nuclear Agency to estimate this veteran’s exposure from metal was simply responding to additional evidence and argument presented by the veteran. The delay involved, although frustrating to the petitioner, must be unreasonable under all circumstances before the Court will inject itself into the administrative agency’s adjudicative process. See Erspamer, 1 Vet.App. at 9-10 (quoting Air Line Pilots Ass’n, Int’l v. CAB, 750 F.2d 81, 85 (D.C.Cir.1984)). Here, the circumstances are not so extraordinary as to justify the Court’s exercise of its All Writs power. The exhaustion of the petitioner’s appellate remedies [94] may secure the relief he ultimately seeks, and, if not, he has the remedy of timely appeal as of right to this Court. The Court further notes that, in view of the Secretary’s responses on the issue of 38 C.F.R. § 3.309, the Court has no doubt that the Board will include a reasoned and fully supported decision on the applicability of that regulation and the presumption based thereon, should the remand not prove fruitful to the petitioner and an appeal to the Board be necessary. The Court notes that the Secretary is required to expedite the remand proceedings when the Board orders a remand (§ 302 of the Veterans’ Benefits Improvement Act of 1994, Pub.L. No. 103-446, 108 Stat. 4645, 4648 (1994)) (found at 38 U.S.C. § 5101 noté). III. CONCLUSION Upon consideration of the foregoing, the appellant’s May 14, 1997, petition for an extraordinary writ is DENIED because he has not shown that he lacks an adequate alternative means of obtaining a BVA decision on the question of service connection, see Erspamer v. Derwinski, 1 Vet.App. at 9. See also In the Matter of the Fee Agreement of Cox, 10 Vet.App. at 374-75 (where direct appeal is available “mandamus would normally not be in order” unless “pursuing the normal appellate route would have been futile”). Because of the appellant’s advanced age and his averment of poor health, and because of the four remands that the Board has already made in this ease, the Court trusts that the BVA and the Secretary will expeditiously treat this matter.