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Old October 11, 2008, 09:49 AM   #1
Bartholomew Roberts
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ABA Article: Veterans: A New Suspect Class in the Legal System?

Recently (see the ABA thread), I learned of an interesting Cold War-era Supreme Court decision entitled Feres v. United States, 340 U.S. 135 (1953).

One of the outcomes of this decision is that veterans who dispute any dealings with the Veteran's Administration are basically subject to a "legal" system that would make a kanagaroo court blush with shame. For example, veterans:

1) Cannot pay a lawyer any sum whatsoever for legal assistance on claims filed with the agency of original jurisdiction until after the case is lost and a final administrative determination has been made (a process that can take years)

2) Must face VA adjudicators who act as both trier of opposition and fact (essentially, it would be like having the judge and the prosecutor be the same person in a criminal trial)

3) Cannot subpoena any VA employee to testify in order to support a challenge to diagnosis

4) Have no redress for denials of medical care or treatment

In addition, veterans may not use class action procedures or obtain injunctive relief against the VA and the U.S. Court of Appeals for Veterans Claims lacks the ability to enforce any decisions at the Regional Office level.

To see so many basic legal protections stripped from the group that has done so much to protect the system for all of us just sticks in my craw in a tremendous way. It was shocking to me that these abuses were alleged by the ABA. On top of all of it, the ABA also alleges that the VA has engaged in blatantly illegal activity knowing that only a veteran who can last all the way (both monetarily and medically) to the Federal court of appeals has any chance of actually reversing their decision.

Now part of me is skeptical because 1) it is the ABA and 2) the people who are pushing to change this legislation wish to bring a bunch of challenges under the Federal Tort Claims Act on PTSD cases - these cases will undoubtedly enrich the lawyers from our tax coffers and give the families of those involved the cold comfort of 60-40% of the award for their lost loved one.

At the same time though, I've got to say the ABA makes a convincing case that veterans deserve a better judicial system at the VA than the one we have given them. I was hoping maybe some of the learned people here could help better inform me on this issue - especially from the perspective of any who have had to deal with the VA recently.
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Old October 11, 2008, 10:24 PM   #2
Bogie
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Bart, remember who runs the VA...

The last thing some career bureaucrat wants is some guy with stars calling him, and his boss, because he screwed a soldier over...

It's not the world's best care, but then again, it sure ain't the worst...
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Old October 12, 2008, 12:20 PM   #3
Al Norris
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Bart, as you are aware, Art. I, Sect. 8 gives to the Congress the power "To make Rules for the Government and Regulation of the land and naval Forces;" and "To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States[.]"

This gives to the Congress the power and authority to determine in whole the nature of military service, apart from what ordinary citizens may be governed. This power is plenary in nature and the Court has long recognized this.

Because the V.A. is in whole, a service provided to veterans by an act of Congress, it can and does create a "suspect" class of citizens. Since any action arising out of use (or non-use or misuse) of V.A. services is inextricably linked to the recipients military service, it is within the bounds of the plenary power of Congress to set any/all modes of recovery, if any.

Like it or not, service in the military falls under a completely different set of laws than that by which govern the ordinary citizen. Likewise, any service connected disability also falls under a separate set of codes. The Congress has decided that any liability connected to such service, at either the time of actual service or complications in (later) civilian life, arising out of said service, to be a specific and governable power.

The ABA, in pushing these claims, is in trying to narrow the scope of the plenary power of Congress via the Courts. In effect, the ABA is attempting to legislate from the bench. A wholly improper method of amending the Constitution.

Of late, it has been actions such as these, that has soured some (many?) attorneys from their association(s) with the ABA. <-- which is an indirect answer to your other thread.
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Old October 12, 2008, 02:22 PM   #4
Fremmer
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Here's the decision making & appeal process, which I pulled from this site.

Quote:
Congress, through the United States Department of Veterans Affairs (VA), provides a variety of benefits and services to veterans and to certain members of their families. These benefits range from health care and related services to burial benefits. The veteran's basic eligibility for these programs and services is usually determined by the local VA office. Veterans not satisfied with the VA's decision(s) may wish to have them reviewed and may appeal the decision(s). This report traces the various steps involved in the appeal process -- starting with the original application for benefits and concluding with an appeal to the U.S. Supreme Court. A flow chart outlining all of the steps in the appeal process is provided.

Following the filing of the initial appeal, the local VA office will either allow or disallow the claim. If the veteran/claimant wishes to appeal, a written request for appeal must be filed and various time deadlines and other requirements must be met prior to the case being considered by the Board of Veterans' Appeals (BVA). The appeal before the BVA may be a hearing at the local VA office by a traveling Board member; a hearing at the BVA office in Washington, DC; or a videoconference hearing at the local VA office......

.....The veteran/claimant may appeal the decision of the BVA to the Court of Appeals for Veterans Claims (CAVC), which is an independent federal court and not part of the VA. The decision of the CAVC may be appealed by either the veteran/claimant or the VA to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), an Article III court that sits in Washington, DC and has exclusive jurisdiction to hear cases challenging CAVC rulings. Decisions of the Federal Circuit may be appealed to the U.S. Supreme Court, which has final jurisdiction.
So it appears that the initial hearing is conducted by the BVA, whose decision is reviewed by an indendent Federal court. Final appeal goes to the DC Circuit Court of Appeals, and finally to the Supremes.
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Old October 12, 2008, 06:25 PM   #5
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Thank you Fremmer, for the info

Based on that, it would appear that since the original claim, and review by the BVA are not federal courts, but bureaucratic functions of the VA that any claim by the ABA about denial of basic legal procedures (as used in court cases) does not apply, until the appeal reaches the level of CAVC, which is a court. Based on the information posted, it appears that

Quote:
1) Cannot pay a lawyer any sum whatsoever for legal assistance on claims filed with the agency of original jurisdiction until after the case is lost and a final administrative determination has been made (a process that can take years)

2) Must face VA adjudicators who act as both trier of opposition and fact (essentially, it would be like having the judge and the prosecutor be the same person in a criminal trial)

3) Cannot subpoena any VA employee to testify in order to support a challenge to diagnosis

4) Have no redress for denials of medical care or treatment

In addition, veterans may not use class action procedures or obtain injunctive relief against the VA and the U.S. Court of Appeals for Veterans Claims lacks the ability to enforce any decisions at the Regional Office level.
1) seems to be a red herring, as until a claim is denied, and goes past internal VA review, there is no legal case. So, arguing that you cannot pay a lawyer for legal help is a misleading statment, because until final BVA review, you do not have a case, only a disputed claim.

2) This also appears to be a misleading statement, although true enough on the face of it. The VA adjudicator is the ruling authority, just as an arbitrator is binding authority for settling many forms of dispute, short of going to court. Saying they would be both the judge and prosecutor is technically correct, but leaves out the small fact that they are also the defense advocate at the same time.

3) Again, I wonder about this one. While I am no expert, I would think that the rules of law to subpoena witnesses would apply when you go to court. But not until then. And BVA review hearing are not court, they are administrative functions of the VA.

4) Total BS, as Fremmer's research shows, there is a clear process for redress of grievances.

As for the last statement, I do not know if it is true or not, but given the issues I have with the previous statements, I would think that there is something there that is not entirely accurate. Factual perhaps, but I doubt complete accuracy. I could be wrong, while I am a veteran, I have never had any dealing with the VA, and can claim no special expertise or experience in this matter. Only that it seems to me that the ABA aricle is heavily slanted to encourage a particular conclusion.

Veterans do deserve better than they generally get, especially from the VA. But it is Congress who has the authority to make the rules and provide the resources for the VA, and personally, I believe that complaints about the system should be directed to them. They can change any and all of it with the stroke of a pen and a vote. That so many vets have so much trouble with the VA (particularly the medical side of it) is the fault of Congress, for not seeing the job done properly, and sadly, our fault as well, for not making Congress do the job we want done.

The next time someone tells you how good it would be to have govt run health care, remind them that is what the VA hospitals are.
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Old October 14, 2008, 06:43 AM   #6
Bartholomew Roberts
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Quote:
1) seems to be a red herring, as until a claim is denied, and goes past internal VA review, there is no legal case. So, arguing that you cannot pay a lawyer for legal help is a misleading statment, because until final BVA review, you do not have a case, only a disputed claim.
I haven't worked with the VA; but I have worked with Homeland Security in Customs & Immigration. To give a comparison, you can hire a lawyer to help you file challenges to CIS determination of your immigration status even though it is simply a claim and not yet a legal case. While Congress certainly has every constitutional right to exercise its jurisdiction over the military as it sees fit and provide or not provide benefits according to its wisdom, it does offend me that an illegal immigrant being deported can have a lawyer represent him at the administrative level; but a veteran appealing a denial of medical treatment cannot.

Again, I can't speak for the VA; but in the CIS world, this is very important since failure to perfectly fill out the paperwork can create a procedural error that can cause problems with a later legal challenge. On the flipside, it also has helped create an environment where it can be very difficult to even dispute an administrative decision without a lawyer. Would the additional costs to the veterans as a whole outweigh the benefit to those who wish to hire lawyers?

A second aspect of working with CIS, is that an administrative review or decision can take several years before it reaches the status of "final administrative decision" that is appealable to a court. I hope that isn't the case at the VA; but it appears there is a significant length of time where a veteran is at the mercy of the VA, whatever its decision is on a particular issue of medical treatment. Considering how important a prompt response is to effective medical treatment, this seems like a problem to me.

Quote:
2) This also appears to be a misleading statement, although true enough on the face of it. The VA adjudicator is the ruling authority, just as an arbitrator is binding authority for settling many forms of dispute, short of going to court. Saying they would be both the judge and prosecutor is technically correct, but leaves out the small fact that they are also the defense advocate at the same time.
The VA Adjudicator does serve all of the roles; but considering they will be working closely with the people who deny the claim and receive their money from the VA, I have to think it may contribute to a bias in their decisions.

Quote:
3) Again, I wonder about this one. While I am no expert, I would think that the rules of law to subpoena witnesses would apply when you go to court. But not until then. And BVA review hearing are not court, they are administrative functions of the VA.
Yes, this one struck me as odd too. I do not know how you could deny a subpoena in these circumstances. The "administrative-only" decision does make sense in this light, though then we have the question of how does the adjudicator reach a decision on denial of medical treatment without hearing this testimony? My guess is that the adjudicator sees an internal report from the VA and that the individual medical personnel cannot be grilled on their report via subpoena at that stage of the process. This rule seems more reasonable to me - particularly if it helps speed the administrative review to a status where it can be appealed easier.

Quote:
4) Total BS, as Fremmer's research shows, there is a clear process for redress of grievances
I think part of the complaint here is that the redress does not take place until after the final administrative review has been done. Once you have been denied here, you can appeal to CAVC; but CAVC lacks the authority to make the VA do what it orders at the Regional Office level, so you have to appeal to the Washington D.C. Circuit court before you can get an order that the VA has to acknowledge. That basically means that unless you win the administrative review, you have a trial in federal district court and federal appeals court before you can actually get action if the VA wants to be stubborn.

It seems like an obvious fix here would be for Congress to grant CAVC the authority to enforce its orders. I am curious what the details on this are since it seems strange that Congress would grant jurisdiction to hear these cases to a court but then not give the court anyway to enforce its orders at higher levels of decision making within the agency it is supposed to oversee. I suspect there is a good reason for this; I just am not sure why it is structured like that.
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