877 F.3d 1037 (Fed. Cir. 2017), 2017-1277, Ebanks v. Shulkin

Docket Nº:2017-1277
Citation:877 F.3d 1037
Opinion Judge:Dyk, Circuit Judge.
Party Name:Elon L. EBANKS, Claimant-Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee
Attorney:MARK RYAN LIPPMAN, The Veterans Law Group, La Jolla, CA, argued for claimant-appellant. WILLIAM JAMES GRIMALDI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by CHAD A. READLER, ROBERT E. KIRSCHM...
Judge Panel:Before Dyk, Linn, and Hughes, Circuit Judges.
Case Date:December 14, 2017
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1037

877 F.3d 1037 (Fed. Cir. 2017)

Elon L. EBANKS, Claimant-Appellant

v.

David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee

No. 2017-1277

United States Court of Appeals, Federal Circuit

December 14, 2017

Page 1038

Appeal from the United States Court of Appeals for Veterans Claims in No. 16-3212, Judge Coral Wong Pietsch.

MARK RYAN LIPPMAN, The Veterans Law Group, La Jolla, CA, argued for claimant-appellant.

WILLIAM JAMES GRIMALDI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE, MARTIN J. SENDEK, BRYAN THOMPSON, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before Dyk, Linn, and Hughes, Circuit Judges.

OPINION

Dyk, Circuit Judge.

Elon Ebanks filed a claim for veterans benefits for service-connected posttraumatic stress disorder, hearing loss, tinnitus, and arthritis. His claim for an increased disability rating was denied by the Department of Veterans Affairs (" VA" ) Regional Office (" RO" ) on October 9, 2014, and on December 3 he sought review by the Board of Veterans Appeals (" Board" ). Mr. Ebanks simultaneously requested a videoconference hearing before the Board pursuant to 38 U.S.C. § 7107. This statute entitles a veteran appealing to the Board " an opportunity for a hearing" before the Board may decide the appeal. § 7107(b).

When by September 16, 2016, almost two years later, the Board had not scheduled Mr. Ebanks for a hearing, he sought a writ of mandamus from the Court of Appeals for Veterans Claims, claiming unreasonable delay and seeking to compel the Board to schedule a hearing. The Court of Appeals for Veterans Claims denied relief, and Mr. Ebanks appealed to this court. While his appeal was pending before this court, the Board held the requested hearing on October 11, 2017— nearly three years after his initial request.

The delay experienced by Mr. Ebanks is typical. At oral argument, the government conceded that the average delay just to schedule a hearing is three years. The consequence is that veterans routinely suffer substantial delays in...

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