[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 97-749 [ACTIVITY]{.underline}: RATING

[NAME]{.underline}: Nash v. West

[ISSUE(S)]{.underline}: Writ of mandamus

[ACTION BY COURT]{.underline}: Denied (en banc) [DECISION
DATE]{.underline}: 2/23/98

[FACTS]{.underline}: The veteran was stationed in Osaka, Japan, from
September to December 1945. In March 1989, he filed a claim for SC for
breast cancer due to exposure to ionizing radiation during World War II.
Records show that the diagnosis of the veteran's claimed breast cancer
was malignant melanoma (skin cancer) which resulted in a radical
mastectomy during the excision of the melanoma. On April 8, 1997, after
the Regional Office (RO) denial and three BVA remands, the Board found
that the veteran had "never participated in the occupation of either
Hiroshima or Nagasaki, as defined at 38 C.F.R. § 3.309(d)(3)(vi)."
Concurrently, the Board remanded the claim in order for the RO to obtain
further dosage estimates of the veteran\'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. On May 14, 1997, the veteran filed a
request for extraordinary relief to assure that he received his due
process rights in his lifetime, because his appeal had been remanded by
the Board a total of four times. The actual relief sought through the
petition was an order directing the Board of Veterans' Appeals (BVA) to
decide his claims without further remand.

[ANALYSIS]{.underline}: In *Erspamer v. Derwinski*, 1 Vet. App. 3
(1990), the Court held that it 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.

In this case, the Court held that the veteran's allegations do not
evidence a clear and indisputable right to the writ. 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. 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 may
secure the relief he ultimately seeks, and if not, he has the remedy of
timely appeal as a right to the Court. For that reason, the Court denied
the petition for an extraordinary writ because the veteran had not shown
that he lacked an adequate alternative means of obtaining a BVA decision
on the question of service connection.

[RECOMMENDED VBA ACTION(S)]{.underline}: None. As in previous single
judge denials of petitions for extraordinary relief, the en banc Court
has held that the claimant must exhaust all VA administrative procedures
before the Court will inject itself into the case. This decision has no
impact on VA policy, regulations, or procedures. However, the Court in
all of its decisions has repeatedly pointed out that VA is required to
expedite the remand proceedings when the BVA orders a remand. At this
time, it is not known how the Court would react to a petition for
extraordinary relief where the delay was determined to be unreasonable
under all circumstances. Such a case could potentially result in
sanctions against VA.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

\_X\_ \_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_/s/\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
[3/19/98]{.underline}

Yes No Kristine A. Moffitt Date