Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
KATHY GARDNER-DICKSON, PETITIONER,
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before GREENBERG, MEREDITH, and FALVEY, Judges.
O R D E R
FALVEY, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting
During the Vietnam era, Air Force veteran Herbert E. Dickson was stationed at the Korat
Royal Air Force Base in Thailand. Years after service, he developed ischemic heart disease and
filed a claim for VA disability compensation. He told VA that temporary duty had brought him
near the perimeter of the base where herbicides were sprayed and to the flight line near aircraft
that carried Agent Orange. Although VA presumes both herbicide exposure in certain veterans
who served on or near the perimeters of military bases in Thailand and an etiological link between
the presumed exposure and ischemic heart disease, it did not immediately grant the veteran’s claim.
Rather, on April 2, 2019, the Board of Veterans’ Appeals (Board) remanded the matter for further
Mr. Dickson promptly filed a motion for Board reconsideration and, when that was denied,
he filed the petition that is before us today. Mr. Dickson unfortunately passed away during these
proceedings, and his widow, Ms. Kathy Gardner-Dickson, has been substituted as the petitioner.
The petition was denied in a single-judge decision because the petitioner had adequate alternative
means to obtain the desired relief and had not shown that the petition was in aid of our jurisdiction.
A motion for a panel decision was filed and the case was submitted to the panel, which heard oral
argument on July 8, 2020.