McCormick v. West

McCormick v. West, 13 Vet. App. 542, decided 2000-06-28.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-48

MACK A. MCCORMICK, APPELLANT ,

           V.

TOGO D. WEST , JR. SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                  Before KRAMER, IVERS, and STEINBERG, Judges.

                                        ORDER

    The appellant appeals through counsel a December 16, 1997, Board of Veterans' Appeals

decision that denied Department of Veterans Affairs (VA) service connection for loss of vision due to pink eye. Record at 2. In his September 17, 1999, brief, the appellant cites to and quotes from various provisions of the VA Adjudication Procedure Manual, M21-1 [hereinafter Manual M21-1]. Brief at 7-8. In his December 13, 1999, response to the appellant's brief, the Secretary states that "the sole issue concerning the [Manual M21-1] raised below [was] whether the Secretary had a duty to assist [the] appellant by virtue of the [Manual] M21-1 provisions in Part III, paras. [sic] 1.03b, 1.04a[,] and 2.10f". Response at 5. Neither of the parties have appended to their pleadings those Manual M21-1 provisions that they consider pertinent to this appeal.

   Upon consideration of the foregoing, it is

    ORDERED that, not later than 5 days after the date of this order, the parties each file with

the Court, and serve on each other, copies of the portions of the Manual M21-1 that they identify in their respective pleadings.

DATED: June 28, 2000 PER CURIAM.

McCormick v. West, 13 Vet. App. 533, decided 2000-06-16.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 98-48

MACK A. MCCORMICK, APPELLANT ,

   V.

TOGO D. WEST , JR., SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                  Before KRAMER, IVERS, and STEINBERG, Judges.

                                        ORDER

    On May 3, 2000, the Court ordered that this case be scheduled for oral argument. On that

same day, the appellant filed through counsel a motion that this case be consolidated with the case of Rochman v. West, U.S. Vet. App. No. 99-1282 (Notice of Appeal filed July 26, 1999), currently assigned to a single judge of this Court. As the basis for his motion, the appellant asserts that counsel for the appellant is the same in each case and that both cases "concern whether the duty to assist pursuant to the 'Fire-related provisions' of the [Department of Veterans Affairs (VA) Adjudication Procedure Manual,] M21-1 [hereinafter Manual M21-1], requires the submission of a well[-]grounded claim before being triggered" and concludes that consideration of the two appeals together will preserve judicial resources. Motion at 2.

    On May 12, 2000, the Secretary filed a motion in opposition to the appellant's motion. The

Secretary asserts that (1) the appellant "has not presented any compelling reasons as to why these cases should be joined"; (2) the two "cases are not at the same procedural posture" because the instant appeal is being scheduled for oral argument and Rochman is still at the briefing stage; and (3) "the mere fact that the [a]ppellants in both cases are raising duty[-]to[-]assist arguments concerning the [Manual M21-1] . . . is not compelling" because Rochman may be disposed of on an alternative ground. Motion at 1-2. The Court also notes that the two cases do not share a common nucleus of fact and that consolidation would thus unnecessarily require three judges of this Court to review the record involved in the Rochman appeal; thus, contrary to the appellant's assertion, it does not appear to be in the interest of judicial economy for this panel to review the Rochman appeal.

   On consideration of the foregoing, it is

   ORDERED that the appellant's May 3, 2000, motion is denied and the Secretary's May 12,

2000, motion is granted. The Court will proceed to schedule oral argument in this case at the earliest time that the business of this Court permits.

DATED: June 16, 2000 PER CURIAM.