Several times in the past year I have been queried about using a writ for extraordinary relief. The CAVC has this power and exercises it infrequently, preferring to see the VA  somehow muddle through at their snail’s pace. This is no panacea to Vets who have been patiently waiting as I have for 18 years. I wrote up  the first one about Mr. Erspamer that arrived at the Court back in the early 90s

https://asknod.wordpress.com/2012/02/26/cavc-erspamer-v-derwinski-writ-of-mandamus/

This is good for an overview but doesn’t cut to our chase. We are seeing a definite deterioration in service on VA’s part, due in no small measure to the incredible backlog they have and continue to amass. I won’t assign any blame here. There’s plenty to go around but none of it accrues at our doorstep. What then,  to do when you cannot even get them to answer your request for a simple update? Ebenefits is not the answer. It’s even less accurate than their 800 dial a smile number.

The simple but nuclear option is a Writ. This requires no lawyer or special expertise. I may be thrown in jail for increasing the workload of the CAVC, but I will do my time with great aplomb. Nothing gives me more pleasure than bearding the lion in his own den. If this is the only option left in light of the vA’s recent win at the 9th Circuit, then so be it. The waiting rooms are not big enough and remodeling them to accommodate more Vets isn’t an option.

You, VA’s great unwashed, malingerers all-have at your disposal one of the greatest legal tools of anyone. Congress invested the Court with the power to receive and hear pleas from her huddled Veteran masses. They further gave them a simple set of rules that, when fulfilled, allowed them to right the wrongs of the VASEC. Writs are rarely granted as I have mentioned before but that is beside the point. The mere threat of the issuance of said Writ is the big stick.

Once you file for this, the wheels of justice slow in their inevitable grind and the record is brought forth. It makes no difference where it is. If it can’t be found, Heaven and Earth will be rearranged until it is. Certain tenets will be  extracted from it and questions will be answered. Detailed excuses will be crafted and apologies will ensue. Promises of a speedy resolution will be tendered and the Vet will usually be castigated (politely, of course) for not being more helpful or forthright. Blame will accrue at the Vet’s doorstep for being recalcitrant in not speedily submitting some inane form authorizing vA to search for his/her records.  Soon, the  reason for why the Writ was requested will be rent asunder. It will appear on paper to be little more than a gross misunderstanding and that vA is moving as fast as their little Nikes® will carry them to deliver on their promises.

This will not result in a grant of the Writ. What it will do is give you instant answers on why they are dawdling and lollygagging around on it. vA will go to inordinate lengths to recharacterize the complaint as something it isn’t to deflect blame away from themselves. This means you have to be horribly specific to keep the conversation concentrated on the subject you complain of. If you have multiple claims as I did and ask for a Writ, you’ll find them discussing Tinnitus where you expected the focus to be on the Hep. They’re lawyers, people. This is their forte. Legal prestidigitation for the Court’s edification is their stock in trade.

You’re mad. You filed in 02 and some jerk in a backwater RO has taken your claim and sent it to God knows where. Hell, it might be in Cleveland undergoing one of their special renditions known as a Tiger Team Remand. This torture includes claws to shred it up. They “waterboard” the claim until they torture the denial out of it.

You have posted queries on IRIS to no avail. The twit at  Dial a Prayer is a charter member in the “Lost in Space Club” and playfully suggests you write the RO a letter. Meanwhile vA has conveniently “unlisted ” all the direct numbers to Fort Fumbles across the fruited plain.  You discover your CFC 36© is inoperable due to no signal. Repair order? Why Mr. Mandamus! Faster than a speeding bullet. More powerful than a locomotive. Able to leap to D.C. in minutes via (drumroll please)…

esubmission@uscourts.cavc.gov.

If you are indigent and have a flexible zip code, this costs nothing. If you are upside down on the mortgage but still have a few assets, this will cost you $50 dollars U.S. The important thing is what ensues. A Chinese Fire Drill is a good analogy. The vA will be forced to get someone to babysit this and report back to the General Counsel with their findings. Someone will miss lunch and Happy Hour in their quest to discover the holdup. In short order (two to three weeks after your filing, the Court will start asking questions. vA’s leagle beagles will quickly put their noses to the ground and seek the answers. Post hoc rationalizations will be crafted to fit the error and a suitable answer exonerating the guilty party (vA) will be proffered. The judge will turn it over in his hands and if dissatisfied with the explanation, begin yet anew and ask you and them for more concise information. This is where you must prepare for mistruths and mischaracterizations to surface. vA doen’t mind doing a shoddy, slow job. They do, however, take umbrage when accused of sloth and indifference. Surely they are guilty of it but no one likes to have their shortcomings pointed out for all to see.

Make your arguments simple and short. Make your accusations clear and concise as to  which particular item or items you are protesting. General, non-specific complaints about it taking too long will be thrown out as “bitching”. To get traction, it helps if your claim is getting long,  gray hair. Carefully explain that there is no quid pro quo and queries go unanswered for months, if not years. There is no secret to this. If you do not have a good command of the English language, it does not disqualify you. Reread it when you are done and see if you can figure it out. If the Court has questions, they’ll get back to you-something the vA doesn’t do.

You can be long winded or short and sweet. I wouldn’t send anything in as evidence unless it’s a letter dated in 1995 that says “We’ll get back to you soon with a new decision.”  like this one.

When I filed to complain, witness how fast it went off track. Unfortunately, I ended up in the hospital again and became so ill, I was late in filing a rejoinder, so I lost in my effort. Control the subject. Do not allow this bait and switch technique or you will discover they are talking hemorrhoids while you are still on the subject of dying from HCV. vA is famous for this. Yes, I did file for Tinnitus and yes, it’s on appeal. That was not the subject of the Writ and vA knows it. They artfully turned the whole conversation into a discussion of Tinnitus and then abruptly sidelined the HCV/PCT contentions as a subject for another day. Once you learn of vA’s proclivity to resort to this little trick, you can practice getting redundant on your Writ. Refocus the subject in each paragraph back to the specific disease/injury you are attempting to get relief for or you will find yourself in a windy predicament with urine on your face.

So, bait and switch, If that doesn’t work, go for post hoc rationalizations. If that slime refuses to adhere to the wall, pretend the Vet is mentally challenged and give the judge a wink and a nod. When all else fails, keep him locked up at the VAMC , refuse him access to a computer and paper and up his pain medication. That  usually does the trick.  It’s a dirty job at the vA but someone has to do it.

vA has no defense against a Writ. The Court is not a part of the vA  and thus does not march to the beat of their drum. Thank God for small favors.