Erspamer v. Derwinski

1 Vet. App. 3 (1990)

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Erspamer v. Derwinski

United States Court of Veteran’s Appeals
1 Vet. App. 3 (1990)

SH

Facts

In 1979, Ernest G. Erspamer opened a claim for service-connected disability with the Department of Veterans Affairs (VA) (defendant) claiming service-connected leukemia from exposure to ionizing radiation. Ernest subsequently died, and Jean Erspamer (plaintiff), Ernest’s wife, continued to pursue Ernest’s claim. The VA regional office (RO) denied the claim, and Jean appealed to the Board of Veterans’ Appeals (the board). The board denied the appeal, and Jean filed for reconsideration. The board remanded, instructing the RO to gather all relevant evidence and have an independent expert determine how much radiation Ernest had been exposed to. The RO issued a supplemental statement and resubmitted the claim to the board without following the board’s instructions. The board remanded again, reiterating the instructions. Three years later and over a decade after Ernest’s claim was opened, the RO had issued no decision. Jean filed a request to the United States Court of Appeals for Veterans Claims (Veterans Court) under the All Writs Act to issue an extraordinary writ of mandamus compelling the VA to decide Ernest’s claim. On appeal, the VA argued that the Veterans Court did not have the jurisdiction to issue the requested relief.

Rule of Law

Issue

Holding and Reasoning (Farley, J.)

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