Forcing the VA to Follow the Law

Demonstrated anew is the fact that we live in a democracy where a small group of people can lie us into war to devastating consequences [See Iran, Lessons of Iraq, for example]—burning $ trillions and traumatising a generation of American troops.

One consequence of war, we make victims of veterans. Honoring them requires more than waving a flag or slapping a bumpersticker on our cars.

In our country honoring veterans means following the law mandating veterans care.

Putting aside the horror of war victims abroad, those serving in the armed forces come home physically and psychologically mangled, many never to live the same again. The U.S. Dept of Veterans Affairs (DVA) is charged with delivering aid and support. [Pictured above is Gordon Duff, Vietnam War Marine Combat veteran and veterans advocate at Veterans Today.]

Politicians selling war are not faced with the prospect of caring for the 100,000s of newly made victims. They did their damage and leave it to veterans to live their lives. But as new veterans are created, new fictions and lies are called for in the name of political expediency.

Here in Wisconsin, for example, the DVA actually orchestrated criminal proceedings against one Vietnam-era veteran who tenaciously pursued a benefits claim, per the advice of his own Veteran’s Service Officer], just another victim of the DVA benefits denial mill that persists to this day.

One critical step in the project to hide away the damage wrought upon our veterans is to trivialize the plight of millions of veterans from invasions past—the Vietnam War wounded. So, Sally Satel M.D., Resident Scholar of the American Enterprise Institute, happily tosses around the lie that only specific classes of veterans truly suffer from Post Traumatic Stress Disorder. Most of the troops came back from service in the Vietnam combat era unscathed because they did not fight in heavy combat, we are told, though most any veteran will tell you it is often the troops essentially waiting to be attacked who suffered the most when they got home. But you veterans from the Vietnam War who think you are suffering, don't worry, you're not; Dr. Satel says so.

The problem for politicians is: Serving our veterans is the law. The process and procedures of the DVA bureaucracy for veterans seeking disability benefits is supposed to be non-adversarial, under the Veterans' Judicial Review Act (1988) and related enabling legislation passed over the last few decades.

The Veterans' Judicial Review Act empowers veterans with the right to special judicial review of decisions involving their benefits under the exclusive authority of VA adjudication procedures. But these procedures can't be just made up out of thin air by DVA bureaucrats; rules have to be promulgated and created per the mandates of the Administrative Procedures Act.

But under the Bush administration—in addition to simply denying disability compensation and needed medical services to veterans [see Veterans For Common Sense et al. v. Peake] in the manner of a particularly mean-spirited health insurance company—the DVA simply made up new procedures intended to deny large-scale benefits to deserving veterans, in defiance of the Administrative Procedures Act and the Veterans' Judicial Review Act.

Now, there is a change in the air in hope that President Obama's administration will change the deny-the-claim culture at the DVA and in the legal arena.

United States Court of Appeals for the Federal Circuit

Across the nation a few thousand attorneys, veterans and advocates are seeing success in the courts, including in an obscure federal, administrative appellate court, United States Court of Appeals for the Federal Circuit that most Americans have never heard of.

In two recent decisions, the Court is rectifying what Congress and the federal court system has thus far failed to do: Making the government, specifically the Court of Appeals for Veterans Claims (CAVC) and the DVA, follow the law.

Cushman v. Shinseki (No. 08-7129)

In an August ruling in Cushman v. Shinseki (No. 08-7129), the United States Court of Appeals for the Federal Circuit proclaimed that a Marine veteran is entitled to a "fair hearing" in a ruling that has veterans advocates turning their heads.

A fair hearing may seem basic due process but if this ideal is realized in DVA practices, the result for millions of veterans is the halting of the DVA creating new rules and ignoring rules in an attempt to deny veterans' claims seeking benefits.

Now, it's up to Congress and Obama to see the DVA funded and begin investigations into schemes in the DVA to deny veterans their benefits. Investigating former VA General Counsel attorney and VA national Director of Compensation and Pension Services, Renee L. Szybala, and DVA officials receiving hefty performance bonuses while sitting on the boards charged with recommending payments are a beginning. The DVA is still a rats' nest of corruption and careerism.

Military Order of the Purple Heart of the USA, and National Veterans Legal Services Program v. Secretary of Veterans Affairs (2008-7076)

In the Military Order case decided September 10, the federal appellate court rules that the Bush-led DVA's newly illegally created rules, called "Fast Letters," that sought to reverse and decrease large-scale benefits granted to veterans is a violation of the Administrative Procedures Act. Reads the Court's opinion:

It is apparent that the (DVA) procedural change that is here challenged affects the veteran’s substantive as well as procedural rights, and is 'a change in existing law or policy which affects individual rights and obligations.' ... It is apparent that the procedure set forth in the Fast Letters does not comport with the governing Regulations, particularly 38 C.F.R. §3.103(c), and was not implemented in compliance with the requirements of the Administrative Procedure Act. Applying the criteria of 5 U.S.C. §706(A), the new procedure is not in accordance with 'law, rule, or regulation,' and is invalid.

That's the summary of the ruling of the Purple Heart decision. It means some of the rights of American citizens for which our troops are ostensibly fighting have been violated by our government in a scheme to deny veterans deserved benefits.

Mark my words here. Veterans for Common Sense and Paul Sullivan, veterans attorney Bob Walsh, the people at Veterans Today and its allies, and the 1,000s of veterans advocates around the nation who work for peanuts will see this tragedy of dishonoring our veterans turned around.
Despair and inaction are not options. Victory is certain.

- via mal contends

Top Court Rules for Due Process in Vet's Case

As the U.S. Dept of Veterans Affairs (DVA) has become infamous for its culture of denial of veterans' claims, a potentially landmark decision may signal an end to this bureaucratic phenomenon that has caused veterans' advocates to shake their heads in disbelief for decades.

Signaling a judicial mandate that U.S. governmental agencies follow the law, a top federal appellate court has ruled the Court of Appeals for Veterans Claims (CAVC) and the Dept of Veterans Affairs (DVA) violated the due process rights of a Vietnam War Marine veteran in wrongfully deciding his disability case.

The case, Cushman v. Shinseki (No. 08-7129), rules that this Marine veteran like other Americans is entitled to a fair hearing in administrative law courts such as the Court of Appeals for Veterans Claims (CAVC).

"The Due Process Clause of the Fifth Amendment guarantees that an individual will not be deprived of life, liberty, or property without due process of law. [U.S. Const. amend. V.] Due process of law has been interpreted to include notice and a fair opportunity to be heard," ruled the Court

The United States Court of Appeals for the Federal Circuit was created in 1982 and hears appeals from all over the U.S. including from numerous federal administrative courts such as the U.S. Court of Federal Claims and the U.S. Court of Appeals for Veterans Claims (CAVC).

The case is described by Larry Scott of VA WatchDog as a "landmark decision ... which could impact hundreds of thousands of veterans."

The ruling is hailed by Philip Cushman, the Marine veteran who filed the complaint, in an e-mail to Larry Scott:

U.S. Court of Appeals for the Federal Circuit, [has] recognized a PROPERTY RIGHT INTEREST in a VA claim, thus triggering the legal protections of DUE PROCESS OF LAW which mandates a FAIR and IMPARTIAL VA adjudication process. This [is] a HUGE victory for the [nearly] MILLION veterans now caught up in VA backlogged claims denial mill.

The Court decision concludes:

Mr. Cushman demonstrated that his injury meets the service connection requirement of [United States Code]. Mr. Cushman has a constitutional right to have his claim for veteran’s disability benefits decided according to fundamentally fair procedures. We find that this right was violated due to the presence of an improperly altered medical record in Mr. Cushman’s file. We vacate the June 6, 2008 decision of the Veterans Court and remand the case with instructions to grant Mr. Cushman a new hearing before the Board to determine de novo and without the presence of the alterations in his medical record whether Mr. Cushman was unable to secure a substantially gainful occupation between May 3, 1977 and August 31, 1994, because of his service-connected disability.