Gene S. Groves v. Robert A. McDonald

27 Vet. App. 168, 2014 U.S. Vet. App. LEXIS 1989
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 25, 2014
Docket14-0169
StatusPublished

This text of 27 Vet. App. 168 (Gene S. Groves v. Robert A. McDonald) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gene S. Groves v. Robert A. McDonald, 27 Vet. App. 168, 2014 U.S. Vet. App. LEXIS 1989 (Cal. 2014).

Opinions

ORDER

PER CURIAM:

In the context of the instant January 24, 2014, petition for extraordinary relief in the nature of a writ of mandamus, the question before the Court concerns the petitioner’s request for sanctions based on the Secretary’s failure to correct an error of the Board of Veterans’ Appeals (Board) in characterizing this Court’s March 2012 remand decision as an affirmance in its database, despite numerous letters from the petitioner raising the error. This ultimately resulted in the Secretary’s failure to expeditiously handle the Court’s remand order as required by 38 U.S.C. §§ 5109B and 7112. During the pendency of the instant petition, the other relief requested by the petitioner — compliance with this Court’s March 2012 remand decision concerning VA’s reduction of his disability rating for post-traumatic stress disorder (PTSD) from 100% to noncompensable— became moot when, on May 6, 2014, the Board issued a decision that determined that the reduction was improper and ordered restoration of the 100% rating for PTSD, effective May 1, 1997 (Secretary’s May 7, 2014, Notice). See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting the case-or-controversy constraints imposed by Article III of the Constitution and dismissing a portion of a petition seeking mandamus relief because the controversy surrounding the petition was moot).

The Court holds that, under the unique and particularized circumstances of this case, the Secretary’s failure to provide a minimum amount of scrutiny to any one of multiple letters from Mr. Groves following this Court’s March 2012 remand order showed gross negligence and lack of reasonable diligence in handling this Court’s March 2012 remand order. Had a reasonable inquiry been made by VA during the approximate two-year period, the Board’s mischaracterization of this Court’s March 2012 order as an affirmance would have been corrected. Because the standard for holding a party in civil contempt established by this Court has been met, the Court will hold the Secretary in civil contempt. See Harvey v. Shinseki, 24 Vet.App. 284, 287 (2011); Pousson v. Shinseki, 22 Vet.App. 432, 437 (2009). To ensure the Secretary’s diligent compliance with future remands from this Court, the Court will order the Secretary to pay sanctions in the form of reasonable expenses associated with the litigation of this matter.

[170]*170I. LACK OP AGENCY ACTION ON REMAND

In March 2012, the Court issued a decision based on the petitioner’s appeal from a September 17, 2009, Board decision that determined that a VA regional office (RO) properly reduced the petitioner’s disability rating for PTSD. The Court held as follows:

In any view of the matter, this record does not allow the Court to properly review the Board’s implied finding that the appellant lacked good cause to report to the scheduled medical examinations for PTSD. Therefore, the Court is unable to properly assess the Board’s findings with respect to the reduction in the appellant’s disability rating and with respect to its possible restoration. Accordingly, the Court will set aside the Board’s determinations on these matters and remand them for readjudication after farther efforts to reach some reasonable accommodation with respect to the medical examination.

Groves v. Shinseki, No. 09-3611, 2012 WL 686669, at *6 (Vet.App. Mar. 5, 2012) (emphasis added). Mandate issued on May 30, 2012. Although the remand order did not expressly order expedited treatment, the statutory duty nevertheless governed the matter, and the Secretary was thereafter required to process the Court’s remand order in an expeditious manner as required by 38 U.S.C. §§ 5109B and 7112.

In light of the passage of more than 19 months since mandate issued, the Court issued a February 26,2014, order directing the Secretary to respond to the petition. In response, the Secretary asserts that when mandate had issued in May 2012, “personnel at the Board mis-entered the Court’s decision with regard to the underlying appeal as an affirmance in the Veterans Appeals Control and Locator System (VACOLS) (the Board’s computerized tracking system).” Mar. 28, 2014, Secretary’s Response at 3, Exhibit A (Declaration of Bruce P. Gipe, Director of the Office of Management, Planning, and Analysis of the Board). The Secretary explained that “staff at the Board may have confused the underlying appeal with a different appeal pertaining to Petitioner [ (No. 06-1252) ], and that on or around May 2012, the Board input incorrect data that the Court had affirmed the underlying appeal.” Id. at 5. The Secretary noted that, at about the same time that the Court issued mandate in the underlying appeal, the Court had issued mandate on May 23, 2012, in No. 06-1252 as to a Court decision dated in November 2009 affirming a 2005 Board decision as to a matter concerning clear and unmistakable error in a 1972 RO decision and vacating a 2005 Board decision concerning entitlement to vocational rehabilitation services. Id., Exhibit A.

The Secretary acknowledged that, other than the mis-entry of the Court’s March 2012 decision in the Board’s database, no action was taken by VA on the remanded claim during the period between the Court’s March 2012 remand order and shortly before the Court’s February 2014 order. Id., Exhibit A (Declaration) at para. 4-5 (stating that no action was taken on the Court remand when mandate issued in May 2012 and noting that action then occurred on February 24, 2014, when “the Board mailed the appellant a ‘90 day’ notice letter” and' informed him that “the Board had received his claims file to process the Court’s March 5, 2012 Memorandum Decision.”); see id. at 8 (noting that the Board “became aware” of its mis-entry of the Court’s remand as an affirmance in Februaiy 2014).

In an April 28, 2014, order, the Court expressed its dissatisfaction with the Secretary’s response, especially with the Sec[171]*171retary’s failure to explain (1) whether the claims file contains any of the eight letters that the petitioner asserts he sent VA from August 2012 to October 2013 in which he requested VA action on the Court remand; (2) whether VA received any of those eight letters; and if so (3) what VA did after it received those letters. The Court noted that counsel for the Secretary stated simply that she was “unable to determine what correspondence may have been received by the Agency” and provided no explanation as to any efforts undertaken to determine whether the agency received the letters. Resp. at 5.

In its April 2014 order, the Court directed the Secretary to file a supplemental response addressing the matters discussed in its order and to show cause why sanctions are not in order for the failure to process the Court’s March 2012 remand order in an expeditious manner, which includes taking any necessary action in response to status inquiries from the petitioner regarding his remanded claim. See Harvey, 24 Vet.App. at 287; Pousson, 22 Vet.App. at 437; see also Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of Veterans Affairs,

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Bluebook (online)
27 Vet. App. 168, 2014 U.S. Vet. App. LEXIS 1989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gene-s-groves-v-robert-a-mcdonald-cavc-2014.