But VA Hqtrs apparently has no control over the actions of 57 Regional Offices
In a letter supposedly written December 8, but received by fax December 12, the office of Veterans Affairs for Benefits tells The Honorable Kirsten Gillibrand, member of the House Armed Services Committee, that they released a policy statement to all Regional offices in September clearly explaining the procedure for dealing with Non-Hodgkin's Lymphoma (NHL) compensation claims, which are being illegally held by the ROs under the Haas Stay.
BWNVVA then provided Congresswoman Gillibrand's office a letter written by the Waco Regional Office, dated November 17, informing a veteran that they have not "received any instruction yet on the out come of the case Haas v Nicholson, ... and as soon as clarification is disseminated..." they will process his NHL claim. We are wondering if perhaps the policy release was shredded... or maybe mishandled by the mailroom?
ANY VETERAN WITH A VALID NHL CLAIM:
Print this letter, take it with you or include it in a mailing to your Regional Office with a demand for immediate release and adjudication of your claim. We've shaken the tree and if this doesn't free things up, I don't know what will.
If this affects you, please let us know. Also, please let us know if you have any trouble with compliance by your RO. We'd like to start collecting some data on how widespread the affect of this is.
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From: Paul E. Travis [mailto:poppy0200@hotmail.com]
Sent: Saturday, December 13, 2008 9:18 AM
Subject: VA CLARIFIES RULE ON SERVICE CONNECTION FOR NON-HODGKIN'S LYMPHOMA
http://www.vawatchdog.org/08/nf08/nfdec08/nf121308-4.htm
It seems that the VA has been turning down claims for non-Hodgkin's lymphoma (NHL) that have been submitted by "Blue Water Navy" veterans.
It appears the confusion lies in the fact that NHL is included in the list of presumptives for "boots on the ground" Vietnam veterans. That list here... http://www.vba.va.gov/bln/21/benefits/herbicide/
But, "Blue Water Navy" vets, at this time, do not qualify for those presumptives because their claims are being held up as the VA argues the Haas case in Court. More on Haas here...
http://www.yourvabenefits.org/sessearch.php?q=haas&op=and
Now, we have a clarification on the rules for NHL that allows the claims of "Blue Water Navy" vets to move forward.
Thanks to John Paul Rossie and the good folks at BlueWaterNavy.org for providing this information. Website is here...
http://www.bluewaternavy.org/
From the CFR we find:
Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation
Ratings and Evaluations; Service Connection
Browse Previous | Browse Next
§ 3.313 Claims based on service in Vietnam.
(a) Service in Vietnam. Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.
(b) Service connection based on service in Vietnam. Service in Vietnam during the Vietnam Era together with the development of non-Hodgkin's lymphoma manifested subsequent to such service is sufficient to establish service connection for that disease.
(Authority: 38 U.S.C. 501)
[55 FR 43124, Oct. 26, 1990]
And, Rossie supplies this letter of explanation from Adm. Dunne, head of the Veterans' Benefits Administration. Letter here...
Rossie also gives advice to those who have a valid NHL claim on this page... http://bluewaternavy.org/NHL/lettersonNHL.htm
-------------------------
posted by Larry Scott
Founder and Editor
VA Watchdog dot Org
Saturday, December 13, 2008
From Colonel Dan and VA Watchdog
VA violates law and take entitled benefits from widows of deceased Vets
Pass this on to widows
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From: VVA Government Affairs
Sent: Friday, December 12, 2008 4:03 PM
To: Dan Cedusky
Subject: VA violates law and take entitled benefits from widows of deceased Vets
VA violates law and take entitled benefits from widows of deceased Vets
CQ TODAY ONLINE NEWS – VETERANS’ AFFAIRS
Dec. 12, 2008 – 1:19 p.m.
Veterans Affairs Slammed for Recovering Benefits From Widows
By Josh Rogin, CQ Staff\
The Veterans Affairs Department has been wrongfully recovering money from widows of deceased veterans over the last 12 years by demanding reimbursement for final benefits checks in violation of federal law.
Sen. Daniel K. Akaka, D-Hawaii, the chairman of the Senate Veterans’ Affairs Committee, confronted the department last week about the problem, which has resulted in hundreds of thousands of senior citizens losing pension and disability money received during the month of their spouse’s death.
“This flawed practice has caused serious hardship for many widows,” Akaka said. “I suspect that the improper procedures have harmed thousands of widows and widowers over the last 12 years.”
Congress granted veterans’ spouses the right to keep their partner’s last month’s worth of benefits when it passed the Veterans’ Benefits Improvements Act of 1996 (PL 104-275). The law instructed the department to treat disability and pension checks issued during the month of a veteran’s death “as being payable to a surviving spouse.”
But the department never adjusted its systems to follow the law. As a result, the department has routinely either refused to send checks or taken active measures to retrieve money already sent, including collection actions.
Akaka brought up the issue in a Dec. 5 letter to Secretary James B. Peake, asking him to immediately take steps to identify all the spouses affected, pay them their missing benefits, and fix the system.
Akaka’s press secretary, Jesse Broder Van Dyke, said there was no evidence officials intentionally withheld any money. “It was something that slipped through the cracks,” he said. “They’re using an automated system, so they needed to go and change the program, but they never did.”
Peake responded Thursday with a tentative action plan to fix the benefits problem over the coming months, saying “I agree that this problem must be fixed.”
A department spokesman did not immediately respond to requests for comment, but a committee aide said solving the problem likely would take some time, partly because the department does not keep track of all spouses.
The aide estimated that up to 50,000 spouses could have been affected each year since the law was passed. Each spouse could be entitled to anywhere from a few hundred to a few thousand dollars, depending on their situation.
Repayments could cost the government hundreds of millions dollars, the aide said. The department should have enough money in its budget to cover the costs, but “they might have to come back to Congress for some additional money,” the staffer said.
Akaka became aware of the problem last month when contacted by Ruby Maile Sasaoka, a Hawaii resident whose veteran husband died in 2007.
After using her husband’s final benefit check for funeral expenses, the Treasury department took an equal amount of money directly from her bank account without her knowledge. As a result, she unwittingly bounced checks and now faces credit issues.
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Just when you think you can't possibly hear anything new about how low the VA can go, we hear something like this, my question is why has it taken 12 years for the public to know about this, does everyone just ignore the widows of veterans? Who complained loud enough to get this into the public realm, my hat is tipped to them in gratitude.
VVA November 2008 Selp Help Guide for Agent Orange
Vietnam Veterans Guide to Agent Orange Service-Connected Disability Compensation For Exposure To Agent Orange for Veterans and Their Families
This is part of the reason I belong to VVA and the American Legion, it is for the overall good they do for the veterans community. I do not always agree with every position they take on all matters, but overall they help the veterans and their families.
I have the same attiitude towards them that I did the Letters Carrier Union when I worked at the Post Office and I paid my union dues, they advocate on Capitol Hill for all of us, and as a group we benefit from their advocacy, and bottom line it means more money and benefits to all of us, so I encourage all veterans to support the national groups that present to Congress on all of our behalfs, advocacy is not cheap and it needs our support.
Friday, December 12, 2008
Honor Flight honored in the Oval office
Honor Flight honored in the Oval office
Earl Morse receives medal in D.C.
Last Edited: Friday, 12 Dec 2008, 12:06 PM EST
Created On: Friday, 12 Dec 2008, 12:06 PM EST
DAYTON, Ohio (WDTN) - The Springfield man who started the program that takes veterans to war memorials in our nation's capitol was honored by President Bush.
Earl Morse received the 2008 Presidential Citizen's Medal Tuesday in the Oval office.
Morse started Honor Flight with just six small planes and a few volunteers. Now the program has spread to 31 states and is taking up to 800 veterans a week to the war memorials in Washington D.C.
And Morse says he's not done yet.
"That memorial is not yours, not mine, it's theirs. They earned the right to see it," said Morse. "In another five to seven years it will be a moot point. These World War II veterans will be gone."
The Presidential Citizen's Medal was established in 1969 to honor those who have performed exceptional service for our country.
Only 100 people have received the award.
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Earl Morse is on hell of a man, I know it means everything to these WW2 veterans to be able to see the monument in person that was built to honor them and without this man and the groups he inspired and the trips he created, most of these veterans would have never seen it in person, just pictures of it.
My step father is a WW2 era Army Air Corp member he served in the 8th Air Force, one of the bomber groups that bombed Germany in 1943 and 1944, he was in the same air group as the famous Memphis Belle, he was a radio operator who was awarded the DFC for landing the B-29 in England after the pilot and co-pilot had been killed by flak on one of the missions.He died before the monument was completed, but I know her would have made the trip to see it, if he hadn't.
I SALUTE all of the people who make the Honor Flight program work and a special SALUTE to Earl Morse
Naval Base Point Loma Sailors build for vets
Naval Base Point Loma Sailors build for vets
Written by MCC (AW/SW) Yan M. Kennon, Naval Base Point Loma Public Affairs
Friday, 12 December 2008
Sailors from Naval Base Point Loma assisted Veterans Village of San Diego (VVSD) in erecting its annual Winter Shelter for homeless Veterans.
More than 60 Sailors from Naval Base Point Loma (NBPL) Public Works Department and the Space and Naval Warfare Systems Command (SPAWAR) chief petty officers, volunteered to set up the homeless shelter located on a NBPL storage lot in the San Diego area by NBPL’s Old Town compound. The annual event consists of the break out and set up of materials used to operate a 150 all-male shelter which includes bunks, tables, and support equipment.
“It is heartwarming to see so many Sailors come together and enthusiastically assist in this noteworthy effort that provides such vital care to our veterans who find themselves on hard times,” said Capt. Paul Marconi, Commanding Officer, Naval Base Point Loma.
The Navy’s five-year partnership with VVSD and the City of San Diego, to provide the lot for the seasonal shelter, enables VVSD to focus on raising contributions to operate the shelter and not search each year for a site to place the shelter.
The winter veteran shelter is not just a place for homeless veterans to sleep and eat, but a place to acquire the necessary tools in order to change their lives. Careful attention is given to each client to determine their specific needs and other related issues. Once the needs are identified, clients are assigned a staff coordinator for their particular case management. Many of the program’s past successes are on hand to assist this year at the shelter.
The shelter is committed to offering every veteran, regardless of service, an opportunity to become self sufficient as well as drug and alcohol free. According to the San Diego Regional Task Force on the Homeless, San Diego is home to an estimated 2,000 homeless veterans.
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SALUTE to all involved THANK YOU as a 100% disabled veteran but whom thru the grace of God I am not one of the homeless
Iraq Veteran Ordered to Stay Away from Tom Cruise
Iraq Veteran Ordered to Stay Away from Tom Cruise
Kat AngusPublished: Friday, December 12, 2008 In news that could serve as a sequel to Born on the Fourth of July, an Iraq war veteran has been ordered stay away from megastar Tom Cruise after two failed attempts to deliver a letter to the actor.
A restraining order was filed against Edward Van Tassel, a 29-year-old former soldier who allegedly showed up at the movie star's Los Angeles home twice this month to deliver his letter, reports Reuters. At the time, Van Tassel was being treated at a nearby veterans' hospital following a November arrest for brandishing a gun on a freeway overpass, but reportedly left the facility in an attempt to convince Cruise to support veterans' rights.
Santa Barbara Superior Court Judge barred Van Tassel from contacting Cruise or approaching any of the actor's residential properties. The veteran has returned to the hospital and cannot leave until his psychiatric counseling is completed.
Bert Fields, an attorney for Cruise, said the actor had nothing to do with enacting the restraining order and was not aware of Van Tassel's attempts to contact him until yesterday.
"Tom didn't even know about it, and the judge did the right thing - you've got to respect the judge for it. But it was not something Tom applied for," said Fields, adding that Cruise "feels very strongly about veterans of not only the Iraq war, but any veterans of war, and that they should be taken care of."
Hey, veterans, you know what that means: free e-meters for everyone!
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I am a 100% diabled Army veteran, and it disturbs me that any veteran would approach a star at their home and demand to see them, for any reason. To deliver a letter, or to even attempt to meet them. As veterans we served to protect this nations freedoms, and to be able to feel free at one's hom from harassment is one of those freedoms. Yes Tom Cruise played one of this nations best known Vietnam war protestors, Ron Kovic, and he was excellent in the role.
But Tom Cruise does not OWE veterans anything, like Gary Sinese (LT Dan from Forrest Gump) people get involved and help groups like the USO and DAV and other groups because they want to. If veterans get tagged as people that harass famous people feeling like they owe us more, then that is wrong. Now if Tom Cruise does help in the future will it be because he wants to or feels compelled to due to this veterans intrusion into Tom's home, where his wife and kids live, why should he help if he is going to be harassed. I have visions of creating a farm, ponds and a place of solace for PTSD veterans, but I would never force my way into a famous persons home or office in an attempt to meet them to discuss it. Mail the letter to his office or his managers office, do it like normal people do.
Thursday, December 11, 2008
Canteen returned to WWII vet after 63 years
Canteen returned to WWII vet after 63 years
BRADDOCK HEIGHTS, Md. — After serving overseas in World War II, Art Cerminara of Braddock Heights arrived home with nothing.
His knapsack and duffel bag were swiped when his ship docked stateside. Now, he finally has recovered one of his cherished possessions — a canteen etched with the names of battle sites in the Philippines.
Cerminara’s daughter Maggie recently listed the canteen as missing on a Web site, and she soon heard from Thomas Rockey in Minnesota. He had purchased the canteen at an Army surplus store in 1946 when he was a teenager. He only recently realized the significance of the island names on the canteen and worked through his local VFW to trace the service number inscribed on the bottom.
When Art Cerminara was surprised with the canteen Tuesday, he noticed there was no whiskey in it.
Murtha pushes retroactive stop-loss payments
Murtha pushes retroactive stop-loss payments
By Rick Maze - Staff writer
Posted : Thursday Dec 11, 2008 13:15:33 EST
Retroactive stop-loss allowances of up to $500 a month could be included in the next supplemental war funding bill, providing back payments for anyone whose military service was involuntarily extended since the 2001 terrorist attacks, a key lawmaker said Wednesday.
Rep. John Murtha, D-Pa., chairman of the House defense appropriations subcommittee, said about 185,000 people would be eligible for one month of retroactive payment for any month during which their separation or retirement was delayed by as little as one day.
Congress created the stop-loss allowance earlier this year, but restricted the payments only to people affected by involuntary extensions in fiscal 2009, which began on Oct. 1 and ends on Sept. 30. Those payments have not yet begun because the Army — the only service that has had people under stop-loss orders since Oct. 1 — is still working out details, including whether to pay the full $500-per-month maximum authorized under the law, or a lesser level of payment.
Retroactive payments were part of the initial proposal before Murtha’s committee, with an allowance that originally was to be up to $1,500 a month. As a compromise to get the new benefit improved, the allowance limit was reduced to $500 and targeted only at people affected by stop-loss in the future, not in the past.
The chief sponsors of the stop-loss allowance, Sen. Frank Lautenberg, D-N.J., and Rep. Betty Sutton, D-Ohio, vowed to work in 2009 to provide backdated payments because they said it is unfair to provide extra pay to some people whose lives are disrupted by stop-loss but do nothing for others.
Murtha’s pledge on including stop-loss allowances in the next war supplemental was made during an appearance before the Center for American Progress, where he talked about defense-related issues before Congress.
“I’m not going to predict how much of a change we’ll see in the coming years, but I do know that defense spending is going to be under severe pressure,” he said. “Our job will be to manage the current and future threats under a constrained defense budget.”
RELATED READING: Murtha says defense spending will dip
Ex-Guard commander: Chemical caused cancer
Ex-Guard commander: Chemical caused cancer
Posted : Thursday Dec 11, 2008 6:29:53 EST
WILLIAMS, Ind. — A former Indiana National Guard commander diagnosed with terminal cancer believes his illness was caused by exposure to toxic chemicals at a water pumping plant in Iraq.
Retired Lt. Col. James Gentry, 51, is under hospice care and has been told he has only weeks to live, The Times-Mail of Bedford reported Wednesday in its online edition. But his concern isn’t just for himself.
“I’m very concerned about the ... other soldiers,” said Gentry, who requires assistance to move from a living room chair to the dining room table in his home about 70 miles southwest of Indianapolis.
Gentry was commander of the 1st Battalion, 152nd Infantry, which was assigned to guard the Qarmat Ali water pumping plant in Basrah, Iraq, shortly after the U.S. invasion in 2003. Sixteen soldiers from the unit filed a federal lawsuit last week against defense contractor KBR Inc., saying its employees knowingly allowed them to be exposed to sodium dichromate, a known carcinogen, while guarding the water plant.
Gentry is not a party to the suit, but he believes he was exposed to the chemical.
The chemical, used to remove pipe corrosion, is especially dangerous because it contains hexavalent chromium, which is known to cause birth defects and cancer, particularly lung cancer, according to the suit. The cancer can take years to develop.
The Guard began notifying Gentry and other soldiers in the unit in July that they might have been exposed to the chemical.
Gentry had begun having breathing problems before he returned to Iraq for a second tour of duty. He was diagnosed with cancer in 2006, the newspaper said, and has spent time in and out of Veterans Administration hospitals in Louisville, Ky., and Indianapolis.
“I guess our concern ... is that these soldiers get checked out in a timely fashion,” said his wife, Lou Ann.
For troops and the military system trying to help them, traumatic brain injury is new territory
For troops and the military system trying to help them, traumatic brain injury is new territory
By Jeff Schogol, Stars and Stripes
Mideast edition, Wednesday, December 10, 2008
Photo by Jeff Schogol/S&S
Mike McMichael and son Hunter, 7.
Courtesy of Jackie McMichael
Former National Guard 1st Lt. Mike McMichael walked away from a roadside bomb in November 2004. It took three years for him to be diagnosed with traumatic brain injury.
Photo by Jeff Schogol/S&S
Iraq war veteran Mike McMichael — with his wife, Jackie, and sons Hunter, 7, and Alex, 5 — has struggled since surviving a roadside bomb blast in Iraq in November 2004. The McMichaels have dealt with his traumatic brain injury symptoms and a health care system that at the time had little experience with such injuries. FRANKLINTON, N.C. — The first thing that 1st Lt. Mike McMichael felt when he regained consciousness was a stinging sensation.
It was the hot coffee he had been carrying in a thermos, which split when the roadside bomb went off on his side, flipping his vehicle.
Even though he had been unconscious for a couple of minutes, Mike appeared to have escaped the blast uninjured.
By the time he was diagnosed with traumatic brain injury nearly three years later, he had lost his job, faced financial ruin and nearly wrecked his marriage. His story shows all the pain that can result when TBI is not detected early.
"At least two, three years of all the pain that we’ve suffered, that our marriage has suffered, that our cute little boys here had go through, could have been avoided through proactive measures," said his wife, Jackie.
Battlefield trauma
As the Iraq war has progressed, experts have learned more about TBI and implemented measures to combat it.
In 2006, the Defense Department began efforts to screen wounded troops for TBI, said Kathy Helmick, of the Defense and Veterans Brain Injury Center.
Now troops are screened in theater, in Germany, back home and by the Department of Veterans Affairs, Helmick said.
But this all occurred after Mike was injured in November 2004, toward the end of his deployment to Iraq with the North Carolina National Guard.
Everyone in the vehicle walked away from the blast. Although he started suffering migraines, Mike pushed on, anxious to get his unit home.
Mike came back from Iraq diagnosed with post-traumatic stress disorder, but instead of getting treatment, he was given a long list of phone numbers to call, he and his wife told Stars and Stripes.
"At the time, as far as theater went, they didn’t know anything about traumatic brain injuries. … So if you were able to walk away from something, you just walked away and that was it," Mike said.
Downward spiral
At first, Jackie thought the hard part was over: Her husband was home, he looked great and he had all his limbs.
But within a few weeks, it was clear something was wrong.
Mike was suffering from nightmares and crippling headaches.
Later, when his company sent him to Texas, Mike felt panicked that he would not have enough supplies for the trip and spent about $1,100 in four days, Jackie said.
In December 2005, Mike had a hallucination that King Kong was in his home. Mike started smashing things, punching between 40 and 50 holes in the walls and asking for a weapon, she said.
Afterwards, Mike went to a civilian psychiatric hospital, but his doctors ignored Jackie’s repeated attempts to tell them that Mike’s problem was much worse than he was telling them, she said.
"It just got increasingly frustrating because he was not talking to them; he wasn’t really telling them the full story about what was happening at home, and they weren’t talking to me about warning signs," Jackie said.
Mike’s doctors also did not talk to Jackie about the possible side effects of the medications they prescribed for him — and they constantly changed what he was taking, so the McMichaels were paying $200 each week in co-pays, she said.
"This time is mostly a blur to me because they had me almost to the point of walking around drooling," Mike said.
Mark Lerner, a clinical psychologist, said doctors need more training to deal with PTSD and TBI.
Far too often, doctors treat each individual symptom with a different medication instead of focusing on the traumatic stress itself, said Lerner, president of the Institute for Traumatic Stress in Long Island, N.Y.
"We really just need to increase awareness about traumatic stress and what we could potentially do to prevent post-traumatic stress disorder in the first place," he said.
Battling bureaucracy
Before Mike began treatment for TBI, he spun out of control when he lost his job in spring 2007.
Soon after, he abruptly left Jackie after an argument with her, and cashed out his 401(k) to start a business that ultimately ended in bankruptcy.
As Mike ran up debt, Jackie waited for their disability claim to work its way through the VA, which repeatedly lost Mike’s records, forcing her to resubmit paperwork, she said.
In one incident, Jackie was talking to a woman with the VA, who noted that Mike had been released from the hospital.
"She said, ‘If he was released, then he should be cured’ " Jackie said.
That is an atypical response from a VA employee, said Thomas Pamperin, deputy director of the compensation and pension service at the VA.
The VA makes the treatment of terror war veterans its highest priority, Pamperin said.
"It’s unfortunate if papers had to have been submitted more than once," Pamperin said. "We have recently made some stringent controls to make sure that all documentation that is pertinent to a claim is secured properly, and we do apologize if someone did have to submit paperwork more than once."
He also said that TBI evaluations can take longer if a patient is suffering from other mental disorders.
"It may have been that the clinicians were in the process of ruling out other disabilities," he said.
For the McMichaels, it took the help of Congress to resolve their financial problems, when Jackie testified before the Senate Veterans Affairs Committee in March about all that she and her family had been through.
Within 72 hours, all of the disability pay the VA owed her husband was in their bank account, she said. More compensation came later.
It was the end of a long battle, but for Mike, it was upsetting to see his case resolved so quickly when so many other veterans were struggling to get their disability benefits.
"It made me nauseated," Mike said.
Finally getting help
Initially, Mike did not want to seek help with the Department of Veterans Affairs because he felt guilty about asking for help when so many other veterans seemed worse off, Jackie said.
"I can remember when I was having my first panic attacks, or anxiety attacks, or whatever; I’m thinking, ‘man … I’ve got buddies of mine; I have two of my men that both lost legs, and I was feeling so guilty because, I mean, those guys were out there still working, doing great, thriving, you know, and yet I’m sitting here [and] can’t even leave the house,’ " Mike said.
But when Mike’s doctors suggested he undergo electroshock therapy, Jackie had enough and finally forced Mike to go to the VA in spring 2006.
Mike began to stabilize when his psychiatrist began treating him for TBI and he attended a six-week program in Salem, Va., for his PTSD.
"Part of it is literally reliving that trauma, but then answering all those internal questions you have about it and kind of addressing all those fears and everything, and when you come through it on the other side, you’ve kind of released that trauma and got it off your back, because you’re carrying it inside," Mike said.
Defense health officials are now working with the VA and civilian health care providers to identify the signs of TBI for veterans yet to be diagnosed, said Dr. Michael Jaffee, an Air Force colonel and director of the Defense and Veterans Brain Injury Center.
And in summer 2009, officials plan to kick off an education program for the families of troops who have suffered brain injuries, Helmick said.
Helmick could not say how many veterans like Mike came home with an undetected case of TBI before recent measures were put in place.
"I think it’s impossible to know that," she said.
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The sad fact is many military people are going to becaught in this same scenario, between TBI and PTSD the unseen wounds can leave the veterans and their families totally devastated, and total ruin. Been there done that and have the T Shirt
Nonprofit Formed to Help Veterans Wasted Large Sum, Senate Report Says
Nonprofit Formed to Help Veterans Wasted Large Sum, Senate Report Says
http://www.veteranscorp.org/
By Ann Scott Tyson, Washington Post Staff Writer, Thursday, December 11,
2008; A06
http://www.washingtonpost.com/wp-dyn/content/article/2008/12/10/AR2008121003
984_pf.html
A nonprofit veterans group has "squandered" hundreds of thousands of dollars
of the $17 million in federal funds it has received since 2001 and
essentially abandoned its mission of helping veterans start small
businesses, according to the results of a Senate investigation to be
released today.
The National Veterans Business Development Corp., also known as the Veterans
Corp. (TVC), grossly mismanaged taxpayer dollars -- including lavish
spending on costly dinners and luxury hotels, first-class travel, and
compensation for its top two executives that amounted to nearly a quarter of
the charity's federal funds, according to a report obtained by The
Washington Post.
Created in 1999 to set up a national network of veterans centers and help
veterans start small businesses, TVC has spent only 15 percent of its
funding on the centers since it was formed, including only 9 percent last
year, the investigation found. As a result, centers in Massachusetts,
Michigan and Missouri are in danger of closing, it said.
"It's appalling that an organization created to aid our nation's heroes
would instead squander taxpayer dollars, wining and dining their executives
instead of helping veterans," Sen. John F. Kerry (D-Mass.), chairman of the
Senate Committee on Small Business and Entrepreneurship, said in a
statement. Kerry launched the investigation with the committee's ranking
Republican, Sen. Olympia J. Snowe (Maine).
Kerry and Snowe recommended that TVC receive no more federal funds and that
instead the funding go to the Small Business Administration's Office of
Veterans Business Development.
"It is deeply regrettable that The Veterans Corporation squandered the
well-intentioned efforts of so many to create a national veteran
entrepreneurship network," Snowe said in a statement. "I am confident that,
with sufficient funding, the Small Business Administration can more
efficiently and effectively oversee valuable veteran entrepreneurship
programs and centers."
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SHAME on all of those involved veterans need real help and assistance in opening small businesses and these frauds are wasting federal funds on trips and food bills BS, jail them for fraud.
Veterans still waiting on disability appeals
Veterans still waiting on disability appeals
FORT BRAGG, N.C. - There was nothing dramatic about how Specialist Cristapher Zuetlau's career in the Army came to an end: He stepped in a hole. But the damage to the tank crewman's wrenched back was so brutal that he can barely walk.
Discuss
COMMENTS (2)
The Army agreed he was no longer fit to serve, but in doing so determined his that disability was not severe enough to warrant long-term care by the military. That turned his healthcare over to the Department of Veterans Affairs, which left him with no retirement benefits and cut off his family from government healthcare.
Thousands of similar stories caused veterans advocates to protest that the military was manipulating disability ratings to save money. In response, Congress last year ordered the Pentagon to accept appeals from wounded and injured troops.
So far, officials have yet to examine a single case.
"Congress finally took action to give those troops a fair hearing, and now the Department of Defense is dragging its feet," said Vanessa Williamson, the policy director at New York-based Iraq and Afghanistan Veterans of America, a veterans' advocacy group. "Establishing the review board was clearly not the Department of Defense's priority. And that's a real shame."
In the Army alone, thousands of soldiers injured since the Sept. 11 terrorist attacks - including many hurt in combat in Iraq and Afghanistan - are eligible for a review of the numerical disability rating issued by the Army's Physical Evaluation Board.
That rating is critical.
A number is assigned to the disability based on its severity and long-term impact. Those rated below 30 percent disabled receive a severance payment that is taxed instead of a monthly retirement check. The veteran continues to get healthcare, but from the VA rather than from the military. But his family, once covered by military health insurance, no longer receives government provided healthcare.
A rating above 30 percent means that a service member gets a monthly retirement check, and that his family is eligible for care at military hospitals.
"I feel like the Army has ripped me off," said Zuetlau's wife, Breana. "When he joined the service he was a fully functioning man. When he left the service, he is like my child. I have to take care of his needs. He should have been retired instead of just being kicked out."
Investigations by the Defense Department and The Washington Post found inconsistencies in how the military assigns disability ratings. Veterans advocates claim injuries rated below 30 percent by the Defense Department were being rated much higher by the Department of Veterans Affairs, while the government's Veterans Disability Benefits Commission has found the Army consistently assigns the lowest ratings.
The VA, for example, rated Zuetlau 100 percent disabled, and the Social Security Administration found him eligible for disability benefits for the back injury and several other ailments, including mental health issues, right shoulder tendonitis, and injuries to a wrist and knee.
The three-member Physical Disability Board of Review, created by Congress last December, is charged with reviewing appeals from members and former members of the armed forces who received disability ratings of less than 30 percent.
Before Congress ordered this streamlined review process, veterans were subjected to a lengthy review by a military panel that rarely changed the ratings.
The board was supposed to be in place 90 days after the bill was signed, according to the congressional mandate. But its formation wasn't formally announced until June, and officials have said they hope to take the first application for review this month.
"They move slow on those things they don't like to do," said retired Army Lieutenant Colonel Mike Parker, an advocate for wounded soldiers.
Eileen M. Lainez, a spokeswoman in the Defense Press Office at the Pentagon, said in an e-mail the panel's creation was delayed because the Defense Department had to develop the application process, Internet information sites, and training programs for newly hired staff.
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DR Chu needs to get out of the way and let the reviews begin, remember the pottery barn rule, you "broke it you bought it" remember the "PROMISE" made when the service members enlisted, if they were hurt on active duty the government would care for them and their families. Not kick them to the curb.
Fraud in Service-Disabled Veteran-Owned Small Businesses (SDVOSBs).
An order signed by President George W. Bush on October 20, 2004, directs all federal agencies to implement Executive Order 13360. The U.S. General Services Administration (GSA) created the 21 Gun Salute initiative to help provide more opportunities in federal contracting for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs).
The law providing for SDVOSBC set-asides is permissive, not mandatory, and does not require an agency to set aside contracts for SDVOSBCs.
The Small Business Act defines an SDVOSB as a business that is (1) at least 51% owned directly and unconditionally by a service-disabled veteran and (2) managed and controlled by a service-disabled veteran, or spouse or permanent caregiver of a service-disabled veteran with a permanent and severe disability. (See 13 C.F.R. 125.8-125.10).
All questions about a firm's service-disabled veteran-owned size status must be referred to the U.S. Small Business Administration (SBA) for resolution (see Federal Acquisition Regulation (FAR) §19.307(h). Size protests are decided by the SBA's Government Contracting Area Office serving the geographical area where the protested firm is located (See 13 C.F.R. 121.1002 and FAR 19.302(c) (1). SDVOSB status protests are decided by the SBA Director for Government Contracting, (See 13 C.F.R. 125.24(e) and FAR 19.307(c). Any questions concerning an apparent successful offeror's representation that it qualifies as an SDVOSB, including a challenge from a Contracting Officer, must be forwarded to the SBA. (See 13 C.F.R. 125.8).
I know of no State or federal agency that met it's goals in awarding contracts to Service-Disabled Veteran-Owned Small Businesses (SDVOSBs).
More info on SBA's veteran programs at: http://www.sba.gov/aboutsba/sbaprograms/ovbd/index.html
Injured Veterans Denied Promised Reviews
Injured Veterans Denied Promised Reviews
There was nothing dramatic about how Spc. Cristapher Zuetlau's career in the Army came to an end: he stepped in a hole. But the damage to the tank crewman's wrenched back was so brutal he can barely walk.
The Army agreed he was no longer fit to serve, but in doing so determined his disability was not severe enough to warrant long-term care by the military. That turned his health care over to the Department of Veterans Affairs, which left him with no retirement benefits and cut off his family from government health care.
Thousands of similar stories caused veterans advocates to protest that the military was manipulating disability ratings to save money, and Congress last year ordered the Pentagon to accept appeals from wounded and injured troops.
So far, officials have yet to examine a single case.
"Congress finally took action to give those troops a fair hearing, and now the Department of Defense is dragging its feet," said Vanessa Williamson, the policy director at New York-based Iraq and Afghanistan Veterans of America, a veterans' advocacy group. "Establishing the review board was clearly not the Department of Defense's priority. And that's a real shame."
In the Army alone, thousands of soldiers injured since the Sept. 11 terrorist attacks - including many hurt in combat in Iraq and Afghanistan - are eligible for a review of the numerical disability rating issued by the Army's Physical Evaluation Board.
That rating is critical.
A number is assigned to the disability based on its severity and long-term impact. Those rated below 30 percent disabled receive a severance payment that is taxed instead of a monthly retirement check. The veteran continues to get health care, but from the VA rather than the military. But his family, once covered by military health insurance, no longer receives government provided health care.
A rating above 30 percent means a service member gets a monthly retirement check and his family is eligible for care at military hospitals.
"I feel like the Army has ripped me off," said Zuetlau's wife, Breana. "When he joined the service he was a fully functioning man. When he left the service, he is like my child. I have to take care of his needs. He should have been retired instead of just being kicked out."
Investigations by the Defense Department and The Washington Post found inconsistencies in how the military assigns disability ratings. Veterans advocates claim injuries rated below 30 percent by the Defense Department were being rated much higher by the Department of Veterans Affairs, while the government's Veterans Disability Benefits Commission has found the Army consistently assigns the lowest ratings.
The VA, for example, rated Zuetlau 100 percent disabled, and the Social Security Administration found him eligible for disability benefits for the back injury and several other ailments, including mental health issues, right shoulder tendinitis, and injuries to a wrist and knee.
The three-member Physical Disability Board of Review, created by Congress last December and managed by the Air Force, is charged with reviewing appeals from members and former members of the armed forces who received disability ratings of less than 30 percent.
I feel like the Army has ripped me off. When he joined the service he was a fully functioning man. When he left the service, he is like my child. ... He should have been retired instead of just being kicked out.
Breana Zuetlau, wife of injured veteranBefore Congress ordered this streamlined review process, veterans were subjected to a lengthy review by a military panel that rarely changed the ratings.
The board was supposed to be in place 90 days after the bill was signed, according to the Congressional mandate. But its formation wasn't formally announced until June, and officials have said they hope to take the first application for review this month.
"They move slow on those things they don't like to do," said retired Army Lt. Col. Mike Parker, an advocate for wounded soldiers. "If the Senate or House had approved a major acquisition program in their version of the (budget) that DOD had proposed, DOD would be ready to hit the ground running when the (budget) finally passed."
Eileen M. Lainez, a spokeswoman in the Defense Press Office at the Pentagon, said in an e-mail the panel's creation was delayed because the Defense Department had to create the application process, Internet information sites and develop training programs for newly hired staff.
Loren Dealy, a spokeswoman from the House Armed Services Committee, said lawmakers are not concerned about the delay, but are "keeping an eye on the progress of the board."
But veterans advocates said the delays reinforce a belief the Defense Department is trying to move wounded veterans off its financial books so that the service, already strapped for resources as it fights two wars, doesn't have to pay for long-term disability care. It is a claim the Defense Department strongly denies.
"I can assure you that budgetary constraints do not factor into adjudications at any point," Lainez said. "This has never been a factor and it will not be in the future."
Not all advocates are upset with the slow pace. Jim Lorraine, who heads the care coalition at the military's Special Operations Command, said his organization is spreading the word, telling veterans to keep track of records and to be prepared to submit applications.
"I'd like to be the first one to flood them with records when they are ready to go," he said.
Wednesday, December 10, 2008
Gates Replacing Bush's DoD Appointees
Gates Replacing Bush's DoD Appointees
December 09, 2008
Associated Press
WASHINGTON - Defense Secretary Robert Gates is moving to replace virtually all of the top political appointees at the Pentagon, and a number of centrist Democrats are expected to take their places.
Officials familiar with Gates' thinking say he is planning to keep on only a few of his closest personal aides - no more than a dozen or so. But the Defense Department's plum jobs - secretaries of the Army, Navy and Air Force, along with dozens of deputy and undersecretary positions, will be up for grabs.
Those slots will be filled by Democratic stalwarts, with some announcements expected as early as this week. Among the names circulating as top defense officials are Obama transition team co-chairwoman Michele Flournoy - possibly for policy undersecretary; Raytheon executive Bill Lynn, and former Clinton administration Navy Secretary Richard Danzig.
Other prospects being mentioned for the service secretary positions include former Air Force Secretary Whit Peters; retired Marine Corps Gen. Arnold L. Punaro, who recently chaired a commission on the National Guard and Reserves, and Kurt Campbell, a former senior policy adviser at the Pentagon.
A link between several of the potential appointees is their involvement in the Washington-based Center for a New American Security, which advocates a centrist national security strategy. Flournoy and Campbell founded the organization.
It is expected that Army Secretary Pete Geren, Navy Secretary Donald Winter and Air Force Secretary Michael Donley will leave. But since the deputy secretary in all three services has either moved on or is preparing to leave, those three top officials could be asked to stay on for a brief time until their replacements are on board.
Gates signaled their departures last week, telling reporters that while a few political appointees may hold over a bit to ease transitions, most will not stay on.
"Virtually every political appointee in the Department of Defense before yesterday assumed he or she would be replaced on Jan. 20 or soon thereafter," Gates said. "That assumption remains as valid today as it was before."
Four of the most coveted slots are the three service secretaries and the deputy secretary of defense. The civilian heads of the Army, Navy and Air Force are the public faces of the services and help set policy and priorities.
But while they occupy a prime seat at the table, they often can be overshadowed within the defense community by the four-star military chiefs of the Army, Navy, Air Force and Marines.
As Obama looks to fill those key spots, as well as the deputy secretary of defense - the Pentagon's second in command - he also may look at executives from the aerospace community.
Ray DuBois, a former acting undersecretary of the Army and manpower adviser under former Defense Secretary Donald H. Rumsfeld, said it would be wise to keep the current service secretaries until replacements are named. Because there will be no deputies in place by then, he said, the military service chiefs would take on the roles of acting secretary.
Doing that would give control of the services to the military, bypassing civilian control.
DuBois also took aim at earlier chatter that Danzig would come on as deputy secretary on a temporary basis, until Gates leaves and Danzig can take over the top job.
"That is absolutely the wrong thing to do," DuBois said. "Those are two completely different jobs."
Historically the deputy has handled the day-to-day operations of the vast department, concentrating on acquisition programs, the budget and other business, while the secretary focuses on broader policy.
Overall, a very tiny percentage of the roughly 17,000 Pentagon employees are subject to the shifting political winds - as Obama's democratic administration takes over and replaces the Republican appointees with those from his own party.
There are a little more than 200 political appointees, ranging from the top secretaries and their deputies to senior staff positions such as speech writers and personal assistants. Those 200, however, include top advisers on everything from the Pentagon's half-trillion-dollar budget to policy gurus on critical issues involving the Middle East, Russia, China, Korea, missile defense and cyber-warfare.
And while Obama's views on the war in Iraq differ sharply from the current Bush administration, he will continue to get guidance from the same cadre of military advisers. Sitting around the table in the Pentagon's vaunted Tank - the secure room where the Joint Chiefs of Staff gather - will be the same four-star generals and admirals who are there now.
Obama already has reached out to Adm. Mike Mullen, joint chiefs chairman, and he has professed respect for Gen. David Petraeus, commander of U.S. Central Command, who is in charge of military matters in the Middle East.
www.angelfire.com/ca2/arresteddecaymusic/jerrelcook.html
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Just wake me up when DR David Chu's departure is announced that will be a victory in itself for retirees and disabled veterans he is the living proof PHD stands for "piled higher and deeper"
Vietnam vet with PTSD goes to Iraq: 'It made me worse'
Vietnam vet with PTSD goes to Iraq: 'It made me worse'
By Wayne Drash
CNN.com Senior Producer
DAVENPORT, Iowa (CNN) -- Bob Konrardy carried the guilt with him for more than 40 years. A platoon commander in Vietnam, Konrardy was wounded when shrapnel tore through his body. Four comrades carried him to safety in a poncho for more than an hour while the firefight raged.
Bob Konrardy says the fallen soldier monument outside his home honors soldiers killed in Iraq like Dave Behrle.
1 of 4 "These four guys went back to help the platoon because they were still fighting, and all four of those guys got killed," Konrardy says. "I felt guilty for 40-something years."
Two years ago, Konrardy got to thinking: He'd be a Santa of sorts for soldiers in Iraq.
He would collect autographed college and pro footballs, letters from local kids and other mementoes from home to help inspire the troops in Iraq. Then, he would have the goods delivered to his old platoon serving in Iraq, the First Cavalry Division.
He initially thought he'd have the material shipped. But his plan changed when the military signed off for Konrardy to deliver the goods in person and work as an embedded journalist for a local paper.
The 65-year-old grandpa was about to head to one of the world's most dangerous places. Watch "I could have been killed" »
"I wanted to maybe bury some Vietnam demons and just make a difference with this platoon and maybe make up for what I didn't do with my old platoon," he says. "I thought it was going to go one way. It went the other. It made me worse."
He adds, "I couldn't sleep before, but now it's worse. I hate to see it get dark. I get extremely nervous. I get uptight. I just don't like to see it get dark. And once it is dark, I'm on edge until it gets dawn."
Konrardy's story is one of patriotism, heroism and torment -- a war veteran unable to escape what happened in 1965, when he was just 23.
"Here's a guy who is a true American hero in his own right. He was wounded in action in the Iadrang Valley, and he comes into a combat zone 40 years later," says Maj. Chris Rogers, the operations officer of the 1st Battalion, 5th Cavalry, when Konrardy embedded with them.
"In my opinion, he's a guy who has done it all -- bled for his own country -- and he's more interested in telling the story of today's generation of young heroes than trumpeting his own horn."
Konrardy was diagnosed with post-traumatic stress disorder shortly after he retired from John Deere in 2002, when he says his disorder really kicked in. He once sleep-drove to a Wal-Mart about 20 minutes from his home at 3 a.m. He doesn't recall how he got there or how he got home. He only remembers a guy mopping the floor asking if he could be helped.
Other times, he'd patrol the neighborhood in the wee hours of the night with his loaded 9-mm pistol on his hip. His counselor with the Department of Veterans Affairs once asked what he would do if the police ever stopped him.
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"I said, 'I'll just shoot out his windows and escape and evade back to the house. I think it'd be fun.' She didn't like that answer," he says with a laugh. "So I'm lucky because that's probably what I would've tried to do."
Konrardy checked himself into a VA facility in Des Moines, Iowa, to get help for his PTSD. He chuckles more when he recounts trying to escape from the place and police approached him. "I rolled down a hill and started running so they couldn't catch me. They said that was the wrong thing to do." Learn about PTSD and how to get help »
He says he was then put in an isolation ward for 11 days and nights, and eventually released. It was August 2005.
Fast forward to the fall of 2006. That's when Konrardy spoke to his grandson's eighth-grade class about his war experience. They thanked him for serving his country. "Nobody had ever done that before, for serving in Vietnam," he says.
He started e-mailing members of the Army's First Cavalry Division as part of his grandson's "adopt a platoon" project. He got autographed footballs from the Green Bay Packers and Indianapolis Colts, as well as from the University of Tennessee and University of Georgia.
Even the players at local St. Ambrose University chipped in with a football of their own: the game ball from their championship game. "I just wanted to do something and make up for what I didn't do for my guys," Konrardy says.
His family gathered for Christmas that year and he told of his plans to travel to Iraq. "Everybody cried," he says. "I said, 'Hey, this is a chance of a lifetime. I have to go.' "
Quizzed about why a man who was held in a VA facility a couple years earlier was cleared to travel to Iraq, Konrardy laughs. He says CNN is the first to ask that question.
But he adds the original plan was for him to not go into combat. "On the way over, I didn't think I'd be going out."
By March 2007, the old warrior's boots were on the ground in Baghdad. His plan was to hand out the 95 pounds of goods and kick back with the soldiers at base camp, collecting their stories and gathering video to give to their families back home. Konrardy handed the St. Ambrose football to a soldier named David W. Behrle, a 20-year-old from Tipton, Iowa. He scooped it up and cherished it.
Konrardy was officially in Iraq as an embedded journalist to file blog posts for "The Quad-City Times." He had not intended to go into combat, but that quickly changed. He says the commander said if he wanted to get to know the troops "you've gotta be proactive."
Konrardy says he hopped into a Humvee and began patrolling the tight streets of Baghdad with the unit. He was assigned the back right seat for four days.
His Humvee once struck a dud of a roadside bomb that blew the tire out underneath where he was sitting. Gunfire erupted. "Looking back, I'm thinking, 'Wow, I could have been killed,' " he says.
He's still haunted by another time in Iraq -- not because of what happened, but because of what he didn't do.
"I'm going to the bathroom and I hear somebody crying. My first instinct was to be a grandpa: I'm going to go in and I'm going to hold this young kid whoever it is and just say, 'I know where you're coming from. I've been there. Let's just talk.' "
He adds, "But I chickened out. I didn't do that. Now, I wish I would have."
A few weeks after he left Iraq, soldiers he befriended were riding in a Bradley Fighting Vehicle on patrol around Baghdad. He says the soldiers had recently saved a young Iraqi girl who had been shot in the head from insurgent crossfire. But on this day, May 19, 2007, a roadside bomb went off, killing all six soldiers inside.
One of those killed was Spc. David Behrle, the soldier who loved the football hand-delivered by Konrardy.
"I took that hard. It still bothers me," Konrardy says.
Outside his Iowa home, a flagpole stands on Konrardy's lawn. A fallen soldier monument sits at its base with a pair of boots, rifle facing down and helmet with the name "Behrle" on it.
Behrle's family was so moved by Konrardy they had it built for him. Kneeling next to the monument, Konrardy says, "It reminds me of Dave. But it also reminds me of the Behrle family and how close we've gotten with them and how great they've been in my grieving for Dave and helping me ... try to readjust to the things I went through in Iraq."
"They say I helped them; I say they helped me."
The lifelong Republican recently did something he thought he'd never do: He says he voted for a Democrat for the president of the United States. Thousands of American troops will soon be returning home in need of help just like him.
Konrardy, who is still getting PTSD treatment, wishes the rest of the nation could better understand what that's like.
"I just want them to realize the life of a soldier is not what you think," he says. "It changes you for the rest of your life."
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I don't know who thought it would be a great idea to send a PTSD veteran to Iraq an a humanitary mission, they need to be checked out by a shrink. I understand why Konrardy went, I have to question the judgement of the people who allowed him to go and what in the hell were they thinking? I know I have no business anywhere near a war zone, heck I can't stand Wal Mart on Saturday afternoon, I go on week nights about 2 am fewer people to bother me. I don't do crowds, let alone bombs and bullets.
Health workers on mission for brain injured
Health workers on mission for brain injured
Ritter orders officials to streamline services, care
December 8, 2008 - 10:21 PM
BRIAN NEWSOME
THE GAZETTE
People suffering from traumatic brain injuries can expect to find almost every aspect of their lives - from relationships to work to mundane, day-to-day tasks - upended.
Although services are out there to help them, the services exist as islands, unconnected to what one another is doing.
Now that's about to change.
Gov. Bill Ritter signed an executive order Monday telling the Colorado Department of Human Services to head an effort to coordinate TBI treatment and services. The department will set out to catalog the multitude of programs and agencies available statewide for people with TBI, and figure out a system for them to coordinate their efforts.
Liz McDonough, spokeswoman for Colorado DHS, said her agency will set out to ask: "Who does what? Who are the contact people? Where is there duplication? How can we be more efficient?"
Traumatic brain injuries are nothing new, but their profile has shot up since the wars in Iraq and Afghanistan began. Bomb blasts have led to a sharp increase in such injuries in the military.
"It's called the signature injury of both those conflicts," McDonough said.
Traumatic brain injuries occur when a sudden head trauma causes damage to the brain, according to the National Institute of Neurological Disorders and Stroke, a part of the National Institutes of Health.
Such injuries can produce an array of symptoms that might include memory loss, the inability to concentrate, a loss of coordination, emotional changes, and problems with language or sensation.
About 5,000 people a year are hospitalized with traumatic brain injuries, the state said in a news release, and an estimated 96,000 Coloradans suffer from them.
The effort to coordinate and streamline TBI treatment is expected to take at least a few months, McDonough said.
Sue Kirton, office manager for the Brain Injury Association of Colorado, said the executive order targeting TBI augments one that went into effect in 2000.
"With the number of cases growing, there is a new focus," she said. "This one helps solidify the need for coordination."
It wasn't that major problems were arising because there was no coordination, she said.
"This will just help the different agencies involved have a closer relationship and will hopefully make the system for people with a brain injury easier to navigate."
Army says Fort Bragg soldiers exposed to asbestos
Army says Fort Bragg soldiers exposed to asbestos
Posted: Today at 8:02 a.m.
Updated: Today at 9:55 a.m.
FORT BRAGG, N.C. — The Army says Fort Bragg paratroopers assigned to clean a barracks storage room were exposed unknowingly to asbestos, but a soldier's father said officials should have known about the material.
The Fayetteville Observer reported Wednesday that medical tests showed that up to 10 soldiers in the 82nd Airborne Division were not exposed to dangerous levels.
The exposure occurred when the soldiers in the 1st Brigade Combat Team scraped floor tiles and carried out debris during the past three weeks.
the Division surgeon, Dr. Bryan Sleigh, said the Army will monitor the health of the soldiers. Air testing showed no hazardous asbestos levels in the room.
Evon Colchiski is the father of Pvt. Jason Colchiski and said he's skeptical of the claim that nobody knew of possible danger.
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All old building materials have to be suspect of having asbestos in them, the military was using asbestos based materials for decades until the late 70s and the dangers of it were discovered.
USMA readies archive of soldiers’ combat experiences
History From It's Source
USMA readies archive of soldiers’ combat experiences
Contact
James Bourne
212-262-7470
jimbournenyc@aol.com
Allan Ripp
212-262-7477
arippnyc@aol.com
extensive News release at:
http://www.westpointcoh.org/press/coh_press_release.pdf
The U.S. Military Academy at West Point has launched an ambitious oral history project to build an online archive of soldiers’ experiences at war.
The Center for Oral History promises to capture a variety of voices, from the oldest living veterans to troops returning from Afghanistan and Iraq, from grunts to former secretaries of the Defense and State departments.
Early projects will include a comprehensive history of the war in Iraq, as well as a profile of West Point’s Class of 1967, whose graduates deployed almost immediately to Vietnam.
“Eventually, when we get this archived with enough interviews, you’ll be able to immerse yourself in the entire story of Vietnam from the people who were there,” said the center ’s director, Todd Brewster, a longtime journalist who has worked for Time magazine and ABC News. “It’s not filtered. It’s history by the people who actually witnessed it.” The idea is to create an easily accessible video, audio and text record of military life for cadets, scholars and the general public, Brewster said.
The Web site, which will officially launch in late 2009, currently features a dramatic 12-minute trailer of what’s to come.
Advisory board members include Academy Awardwinning documentary filmmaker Ken Burns and Pulitzer Prize-winning journalist Rick Atkinson, among others.
The center is the result of a $1.5 million gift to the college. But Brewster said another $25 million must be raised to create a state-of-the-art, searchable site with a deep well of audio and video files.
For more information, visit the center ’s Web site at www.westpointcoh.org .
Judge awards $8.6M in Scott malpractice case
Judge awards $8.6M in Scott malpractice case
The Associated Press
Posted : Tuesday Dec 9, 2008 20:51:59 EST
http://www.airforcetimes.com/news/2008/12/ap_scott_ruling_120908/
EAST ST. LOUIS, Ill. — A judge says the U.S. government must pay $8.6 million in damages over a Scott Air Force Base doctor’s misdiagnosis of flesh-eating bacteria.
Jean Phillips is the former wife of an Air Force captain. She filed suit in 2005.
In 2002, she went to the base emergency room for pain and swelling in her right arm.
Court documents say Dr. Daniel MacAlpine believed the woman was an addict looking for prescription drugs and told her to go home and take Motrin.
Weeks later, Phillips was diagnosed with necrotizing fasciitis, or flesh-eating bacteria. http://www.nnff.org/
A bench trial was held in August. In a decision late last month, Federal Magistrate Judge Philip Frazier faulted MacAlpine and wrote Phillips suffers “continuous, debilitating pain.”
Messages left Tuesday for Phillips and MacAlpine’s attorneys weren’t immediately returned.
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I get the feeling the govt will appeal the size of the award, or invoke the "Feres Decision" this will more than likely make it to the Supreme Court
Clinton: Veterans wait too long on claims
Clinton: Veterans wait too long on claims
By Julie Sherwood, staff writer
Daily Messenger
Posted Dec 09, 2008 @ 04:21 PM
--------------------------------------------------------------------------------
Canandaigua, N.Y. — Many veterans are waiting six months or longer for the government to process their benefit claims, U.S. Sen. Hillary Clinton, D-N.Y. said Monday.
More than one million disabled veterans nationwide expect to face a backlog at the Department of Veterans Affairs in the next year, the senator said.
“Too often, our veterans must navigate an outdated claims system and a maze of rules that can defy common sense,” she said.
The people waiting the longest are typically older veterans, according to Colleen Baumann, director of the Ontario County Veterans Service Agency.
The VA has hired coordinators to focus specifically on helping veterans returning from Iraq and Afghanistan apply for benefits, she explained, adding that new veterans “are getting more assistance.”
Korean War veteran Ralph Calabrese said he has experienced first-hand the long wait and bureaucratic maze of getting a claim through the system. About six months ago he applied for increased benefits pertaining to headaches and other troubles from a blow he received to his head during military service. A letter he received Oct. 28 from the Department of Veterans Affairs stated, “We are still processing your application ... we apologize for the delay.”
Army veteran Alan Merklinger of Hopewell, who was hit by a land mine 50 years ago during military training at Fort Dix, N.J., said he is in a similar situation with a months-long wait for processing of a benefit-claim due to hearing loss.
“I am still waiting,” said Merklinger, a former commander of the Canandaigua chapter of Disabled American Veterans.
Clinton blamed delays on corruption at a VA office in New York City.
In a letter to Veterans Affairs Secretary James Peake, she said an internal investigation revealed mishandling and falsification of information on hundreds of claims at the New York regional office.
The allegations resulted in the firing of a director and five top managers.
Upper-management staff allegedly changed intake dates and prematurely shredded documents, Clinton said.
“Investigators have seen first-hand a startling number of claims” containing doctored dates, neglected mail at processing centers and improper placement of claims, Clinton wrote. “It is my understanding that several employees confessed that they were instructed by their supervisors to enter incorrect dates on the claims in an attempt to manipulate processing times. These allegations, if proven, must be corrected as quickly and responsibly as possible.”
Baumann said veterans processing claims through her office won’t be affected by the troubles at the New York City processing center since claims from her office go to through Buffalo.
Tuesday, December 9, 2008
SECRETARY OF VETERANS AFFAIRS, Petitioner WOODROW F. SANDERS.No. 07-1209
SECRETARY OF VETERANS AFFAIRS, Petitioner WOODROW F. SANDERS.No. 07-1209
-------------------------
Official - Subject to Final Review
IN THE SUPREME COURT OF THE UNITED STATES
JAMES B. PEAKE, SECRETARY OF VETERANS AFFAIRS, Petitioner
: ::
v.
:
No. 07-1209
WOODROW F. SANDERS.
:
- - - - - - - - - - - - - - - - - x Washington, D.C. Monday, December 8, 2008
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:04 a.m. APPEARANCES: ERIC D. MILLER, ESQ., Assistant to the Solicitor
General, Department of Justice, Washington, D.C.; on behalf of the Petitioner. CHRISTOPHER J. MEADE, ESQ., New York, N.Y.; on behalf of
the Respondent Simmons. MARK R. LIPPMAN, ESQ., La Jolla, Cal; on behalf of the Respondent Sanders.
C O N T E N T S
ORAL ARGUMENT OF PAGE ERIC D. MILLER, ESQ.
On behalf of the Petitioner 3
CHRISTOPHER J. MEADE, ESQ.
On behalf of the Respondent Simmons 24
MARK R. LIPPMAN, ESQ.
On behalf of the Respondent Sanders 35
REBUTTAL ARGUMENT OF
ERIC D. MILLER, ESQ.
On behalf of the Petitioner 47
P R O C E E D I N G S
(10:04 a.m.)
CHIEF JUSTICE ROBERTS: We will hear argument first this morning in Case 07-1209, Peake v. Sanders et al.
Mr. Miller. ORAL ARGUMENT OF ERIC D. MILLER ON BEHALF OF THE PETITIONER MR. MILLER: Mr. Chief Justice, and may it please the Court.
Congress has directed the Veterans Court to take due account of the rule of prejudicial error in reviewing administrative determinations of veterans benefits. For four reasons, the court of appeals erred in holding that the Veterans Court should presume the existence of prejudice whenever it finds that the VA has erred in providing notice to the claimant.
First, section 7261, the Veterans Court prejudicial errors statute, is in language that is essentially identical to that of the APA's prejudicial error provision. And when Congress adopted that language in 1988, it was understood to place upon the party challenging an agency's action the burden of showing that any error was prejudicial.
Second, a notice error of the kind at issue
here does not --
JUSTICE SCALIA: Why do you say that? That it was understood so? Because of the Attorney General's commentary on that?
MR. MILLER: The principal reason that it was understood is because the uniform practice in the courts of appeals as of 1988 was to place upon challengers to agency action the burden of showing prejudice from the error. And the Congress was well aware of that, and in particular the Senate Veterans Affairs Committee was cited in the Ninth Circuit's decision in Seine & Line Fishermen's Union.
CHIEF JUSTICE ROBERTS: You basically have four cases in the courts of appeals to support that proposition, right?
MR. MILLER: Well, Your Honor, it's considerably more than that. And the only cases that could even suggest any support to the contrary rule are in the very different context of notice and comment rulemaking under section 553.
And the reason that that's different is really for two reasons. That is that the -- the interest that section 553 is intended to protect is not the interest of any particular commenter or particular outcome of the rulemaking. It's the interest of the
public in having the agency's decisionmaking fully informed by all of the relevant comments.
CHIEF JUSTICE ROBERTS: Well, but this is --I mean, it's kind of the -- it's the first notice. It gets the ball rolling. I think it's like, you know, two teams and you don't tell one of the teams when the game starts and then you say, well, it doesn't matter because they would have lost anyway, there is no prejudice.
MR. MILLER: The reason that in a great many cases there is not going to be prejudicial error of the kind at issue here is that the VA has an informal non-adversarial system and many opportunities to correct the effect of any official notice error. That is illustrated by the history of the cases. To take the Ms. Simmons's case, for example --
JUSTICE GINSBURG: Can we go back to the question that was just posed? We have never held that every agency -- agencies come in many sizes and shapes, but in all cases, the APA places the burden on the -- on the petitioner. But this Court has never held that across the board, no matter what agency we are talking about, that's the rule.
MR. MILLER: That's correct. This Court has not held that. But Congress was aware that the uniform practice, certainly in agency adjudications in the
courts of appeals, was to place the burden on the challenger, and Congress --
JUSTICE STEVENS: Was Congress aware of this when the Administrative Procedure Act was passed, you mean?
MR. MILLER: No, the statute at issue here is the Veterans Judicial Review Act of 1988. So the relevant time we are looking at what the practice was is as of 1988 when Congress incorporated the language from the APA and placed it into section 7261. And as of 1988, it was clear that the burden was on the challengers.
JUSTICE ALITO: Can I ask you to clarify exactly what you mean by the "burden" of showing prejudice? Is it correct that neither of the following -- to borrow the terminology that you would use in formal litigation, and I understand this is not formal litigation before an agency, but to borrow that terminology, is it correct that the issue here doesn't concern either the burden of production or the risk of nonpersuasion before the administrative agency? Before the regional office? In other words, if there's -- if there is evidence that the veteran as opposed to the VA has to produce, that doesn't change, and whatever the standard is that has to be met to show an entitlement to
benefits, that doesn't change either, so that all that's involved here is whether -- whatever showing needs to be made is to be made on appeal or on remand?
MR. MILLER: That's correct. If we are talking about what showing needs to be made on appeal. And as this Court suggested in O'Neal, you know, the burden language is perhaps more appropriate for the context where there's people presenting competing evidentiary submissions to a factfinder and that's not what we have here.
JUSTICE BREYER: That's in O'Neal. It says that, but most of the court joined and the reason it says it is it just confuses everybody, at least me, to talk about "burden" in this context. I think if O'Neal is right, it says what this is, is not involving a jury, not involving -- it's just what Justice Alito says, and following that, what you have, you say to the judge, "Judge, your job is to decide this. Decide. Decide whether you think that the one side -- whether there is error or whether the error is harmless or whether it isn't. Decide it."
Now, it could be in a rare instance the judge just can't decide. He's in grave doubt. And so what we are talking about is what to do in that -- what should be a very, very rare instance.
Now, when I read this case, I thought the Veterans Affairs is absolutely common sense on this. It says, well, when you really don't know what to do, Judge, if the veteran got no notice at all, then probably the error was harmful. But if he got the basic notice, and all that's at issue is who should produce what or whether he thinks that he didn't know that he's supposed to produce a lot of information, well, there, it would be pretty rare that it was harmful. So then you'd better say to him, veteran, why did this hurt you?
That's all common sense, and it seemed to me that that's what the Veterans Court was saying and then the Federal Circuit unfortunately, like I might have done, too, got it all mixed up with this burden of proof language. Now, you tell me, legally is that result which I am talking about sensible, and if so, how do I get there legally?
MR. MILLER: Justice Breyer, the reason that we have used the language of "burden" --
JUSTICE BREYER: I'm not criticizing you for that. I'm not -- it's not a criticism. I'm just really trying to figure out to get to what I see as common sense legally.
MR. MILLER: The point that we are trying to emphasize is that, in the ordinary course the Veterans
Court, like any court, is going to act on the basis of arguments that are presented to it by the parties. So when you speak of the "burden," you mean the challenger has the obligation, if it wants the Veterans Court to find prejudice -- to articulate some theory of how there was prejudice. And that --
JUSTICE BREYER: The theory is he didn't know anything about this, got no notice whatsoever, so he didn't know that he's supposed to produce more information or he'll lose. That's the theory.
MR. MILLER: But in order to -- in order to connect that error -- I mean, that's an identification of an error under the Veterans Claims Assistance Act. But if you connect error --
JUSTICE BREYER: But if you connect it by saying normally a veteran who isn't that knowledgeable -- not everybody is a genius in law -- when he doesn't get a notice that tells him you got to produce something more or you lose, he might forget to produce something more. That's the theory.
MR. MILLER: If he has something more. And what we are saying is that in order to get a remand, the claimant, by the time they get to the Veterans Court, has already identified the error, has made an argument to explain to the court that there was in fact an error,
at that point they ought to explain how the error affected them. If it prevented them from put in a piece of evidence, they ought to tell the court, "Here's the piece of evidence that I want to put in."
CHIEF JUSTICE ROBERTS: Well, usually, when you have an appellate court, with a hard question, is easily divided, the case is resolved on the basis of the standard of review. What is the presumption, if it's a close case? And why isn't that all sort of what we are talking about here? It's a close case, and the judge --the panel says, well, this side has the burden of persuasion, so we're going to come out the other way.
MR. MILLER: Because I think in a case where the -- like these, where plaintiff has not identified anything that they would have done differently, it isn't a close case with respect to the question.
Now, we have to be clear: If a claimant can articulate something they would have done differently, we are not saying they have the obligation of showing that the outcome definitely would have been different or more likely than not, it would have been different. It would be sufficient to identify what they would have done differently.
CHIEF JUSTICE ROBERTS: Well, what if what they would have done differently is get different
medical tests, or done something like that, or have the doctor in the prior testing who prepared the diagnosis look at something that they didn't have them look at before? In other words, it's not simply the absence of documents that they know they can submit or could have submitted. It's that type of question where nobody knows. I mean, you don't know what would have happened if they had the doctor look at the issue that now turns out to be critical, but if they had gotten the right notice they might have had time to do that.
MR. MILLER: Well, depending on the state of the record in a particular case, that might be sufficient to show a reasonable probability that the outcome would have been different. But in a lot of cases it won't be, and I think Simmons's case is a good example of that.
JUSTICE GINSBURG: But if the government has the obligation at the very first to tell the veteran what the veteran must produce to substantiate the claim and the government doesn't do that, why shouldn't it be the responsibility of the government to say to the court, "this is what, if we had done what we were supposed to do, this is what we would have included in our notice." And looking at that, the court can tell whether there's anything the veteran might have done.
But why shouldn't the government at least have the obligation to say what it would have done had it complied with the statute, what it would have said specifically in this case?
MR. MILLER: Well, I mean, how does the government comply, to take Simmons's case as an example, when the VA sent her the notice letter, her claim was for an increased rating. She had a hearing loss that had already been determined to be service-connected, but was not sufficiently severe to be compensable, and she said: My hearing has gotten worse and it now is severely worse to be a compensable disability. The notice letter that was sent to her, which is on page 43 of the joint appendix, was incorrect and simply described the general requirements for establishing a service connection. It didn't specifically say to make out an increased rating claim you have to show that your hearing has become worse.
But as soon as she got a decision from the regional office, which is the first decisionmaker in the VA system, she was told that the reason her claim had been denied was because her hearing loss was not sufficiently severe. And there's a mechanical application of the certain number of decibels in each ear yields a certain disability rating, and the notice
that she got from the regional office explained all of that and cited the regulation that we produced in the tables.
So at that point she was aware of why her claim had been denied and what was missing, namely, evidence that her hearing had become worse. And she had been given at that point a series of hearing examinations -- examinations for hearing by VA doctors and the results of those were all reproduced in the decision that she got. And yet, the Veterans Court found that the government had failed to carry its burden of showing a lack of prejudice, because we couldn't show as a matter of law that there was no way she could obtain --
JUSTICE BREYER: Which is fine. If I get that record and if it is the way you describe, I'm not in grave doubt. No problem. The record's the way you described it, she knew everything she was supposed to know, so there's no harmful error, okay? We are only talking about cases where there is real doubt in the judge's mind about whether this failure of the agency did or did not hurt the woman or man. Now, when in doubt, we have the Veterans Court telling us the best way to administer this stuff is when they get no notice at all, and you are really in doubt, judge, you don't
know if it was harmful or not, here's what you do: Assume it was harmful. They're the ones who know. I don't know.
MR. MILLER: With respect, Your Honor, I don't think that's a fair description of the effect of the rule adopted by the court below.
JUSTICE BREYER: Suppose then we look at our rule, we read the first paragraph, what this court said, and we all held it, and therefore, we say, those are the cases we're talking about, where you are in doubt, and when you are in doubt, go proceed as the Veterans Court told you in terms of who has to show what.
MR. MILLER: I think this case is a good illustration about why that sort of grave doubt you are describing doesn't arise in a case like this, where at no state in the proceedings has the claimant offered anything that they would have done any differently. If they can't say, you know, here's what would have happened differently, than there really isn't any doubt what will happen on the remand, because if on the remand if they don't do anything different then the result is not going to be any different.
JUSTICE STEVENS: Maybe I am not following this as I should, but it seems to me you are suggesting that there is no error.
MR. MILLER: No, certainly there was an error. There was an error.
JUSTICE STEVENS: What was the error?
MR. MILLER: The error was that the initial letter that was sent to her describing what the evidence needed to -- that she needed to submit in order to establish her claim, misidentified that evidence; that it described the elements of general claim for service connectiveness, didn't specifically explain what was needed just an increased rating claim.
JUSTICE STEVENS: Are you saying that error was not prejudicial because the earlier information she received gave her what she needed?
MR. MILLER: The principal reason why that error was not prejudicial is because the only way she could have received benefits for an increased rating claim was evidence that her hearing had become worse. And she had a VA hearing test that said her hearing did not meet the schedule A criteria for being compensable damages.
JUSTICE STEVENS: Why wasn't that statement you just made sufficient to discharge the burden of showing no prejudice?
MR. MILLER: The fact -- I -- we believe it shouldn't, then. But under the rule as imposed by the
courts below, it clearly wasn't.
Under the decision of the Federal Circuit, the VA has the burden of showing that there was no way that benefits could have been awarded as a matter of law. And that had been in effect prior to the VA proving negative by demonstrating the non-existence of any evidence anywhere that might have been material to the claim.
CHIEF JUSTICE ROBERTS: You know -- it's easy to look back and view this in the abstract legal terms, but we are dealing with lay people who are trying to get something from the government, which is always a difficult thing. And you have one notice saying you have got to show that this was during the service, then they get another notice or decision saying it wasn't severe enough. Why is it so difficult, when the government made a mistake in dealing with this layperson who is just trying to get benefits to which they are entitled, to say that the government has to show that it didn't make any difference, rather than requiring the layperson to do that?
MR. MILLER: Well, because there are two responses. The first is that it's important to keep in mind the stage of the proceedings which this inquiry involved. The prejudicial inquiry is only at issue once
the claimant has reached the Veterans Court, which is an adversary proceeding in which claimants do have counsel, and they identified an error and they have explained to the court: Here's what the error was. So that's the stage in which it would be incumbent upon them to articulate how the error might have affected them.
The other point to be made is under the rule of the court of appeals it's going to be very, very difficult in many cases for the government to discharge the burden of showing there is no evidence that could have possibly been produced. And the result is a large number of remands.
JUSTICE KENNEDY: And as between the two courts, the court of appeals, the Veterans Court and the Court of Appeals for the Federal Circuit, do we owe either of them, maybe not deference in the Chevron sense, but some deference because of their expertise in dealing with these claims, and if that is so then do we owe more deference to the court of appeals or the Veterans Court?
THE WITNESS: I'm not aware that this Court has ever --
JUSTICE KENNEDY: I mean it's an issue of law, so I take it it's de novo.
MR. MILLER: It's certainly that.
JUSTICE KENNEDY: But in the exercise of that review, don't we have to give some weight to the determination of the Court of Appeals for Veterans Claims that sees these claims all the time? I actually thought that that's where you were going to start out because you cited 7261, which says that the Court of Appeals for the Federal Claims shall, what, give due effect to -- take due account of the rule of prejudicial error. And I think you could get from that that they have a certain amount of latitude in determining what the best rule is. But you're not going to -- you don't tell us that?
MR. MILLER: No, and I think that by adopting language from the APA using the same language that applies to all kinds of judicial review of agency actions, Congress strongly suggested that it didn't want a unique rule for judicial review of VA determinations. And so I think there is no reason to defer to either the Veterans Court or the Federal Circuit on this general question of the standard of prejudicial review.
JUSTICE STEVENS: May I ask a factual question. You said most of these people were represented by counsel. There used to be a rule that they could only be paid ten dollars a case. Is that still in effect?
MR. MILLER: When I said they were represented by counsel, I meant in the Court of appeals for Veterans Claims, not at the administrative --
JUSTICE STEVENS: But not during the nisi prius proceeding.
MR. MILLER: In the administrative proceeding the restrictions on payment of counsel have now been relaxed at the Court of Veterans Appeals stage. So there generally -- there is not counsel at the regional office, but once the case reaches the board there can be counsel.
JUSTICE STEVENS: There can be counsel. But is it really typical?
MR. MILLER: I don't know the statistics on that, because --
JUSTICE STEVENS: There would be a dramatic change, because years ago I remember a case in which the Court upheld a ten-dollar fee limit on the notion that these people didn't need lawyers at all, which struck me as a little strange.
MR. MILLER: In any event, that is no longer the case at the board level, and even those claimants who do not have counsel, the great majority of them, I think about three-quarters at the regional office level and 98 percent at the board level are represented by
some sort of non-attorney representative, either service organizations like the American Legion, or many States have organizations that assist claimants. Like Ms. Simmons, for example, was represented by a North Carolina State agency before the VA. So there is some assistance to claimants there.
JUSTICE SOUTER: Mr. Miller, could you help me out on how the system works in practice in a different way? One of your answers a few moments ago was that when -- I think it was Ms. Simmons was told why she lost, she in effect got as much notice as she would have needed to have to in effect do better on a remand. My first question is: Is there an automatic right to a remand?
MR. MILLER: If you are talking about after the initial decision from the regional office, there is not an automatic right to a remand, but there is an automatic right to a de novo review by a more senior official at the regional office.
JUSTICE SOUTER: With new evidence?
MR. MILLER: Yes. You can get a hearing. You can present new evidence. It's a decision review officer. And then if you are still dissatisfied with the resolution after that, you can go to the board, and you can get a hearing before the board. The board's
review is de novo.
JUSTICE SOUTER: Okay. But even on the --on the functioning of the system as you have explained it, at the -- at the very least the person says -- let's assume Simmons says: Oh, now I understand and I will get the following piece of evidence, which I didn't realize was my responsibility.
Even on that explanation, it means that the claimant is going to have to go through another stage in the administrative litigation process.
So I assume that ought to count as some sort of prejudice, and I assume it's something that, as it were, the burden of championing the VA ought to bear rather than the claimant.
MR. MILLER: Well, I guess to the extent that the delay in adjudicating the claim is a kind of prejudice, it's not a prejudice that would in any sense be cured by a remand for further proceedings, which will just result in further delay.
JUSTICE ALITO: If the -- I'm sorry. I didn't mean to interrupt.
MR. MILLER: I would just add that the --the effective date of the claim, which is the date as of which benefits are awarded, is the date the claim was filed, so you wouldn't be losing money when you --
except for the --
JUSTICE SOUTER: No, but you are going to have to go through another stage of litigation. One of the functions of the burden rule, and it might be too subtle a function to worry much about, but one of the functions is to puts the party with the burden on -- on notice that if you fail in your obligation, you're the one who is going to have to pay, unless you can convince everybody that there was in fact no harm done by this. And this induces the party with the burden to do what the primary obligation says the party ought to do.
And on your -- and on your analysis, since the government would not have that obligation, the government has less of an inducement to follow the statutory obligation.
MR. MILLER: But the government has a very strong inducement to follow the statutory obligation. Like every agency -- -
JUSTICE SOUTER: Well, it may have a strong inducement, but I'm talking about a stronger one. If the government knows that it is going to bear the burden of any doubt about the significance of its failure, to some extent I suppose that is going to induce the government to be on its toes.
MR. MILLER: Well, I suppose that is right,
but I think in a lot of cases -- the VA in all cases strives conscientiously to comply with its statutory obligations. The notice requirements as described in section 5103 are fairly vague. They -- the notice has to be tailored, at least to some extent, to the nature of the claim that's presented. And every time that the Veterans Court or the Federal Circuit elaborates on exactly what kind of notice is required, to the extent that the VA wasn't aware of that elaboration before, there are going to have to be remands in all those pending cases.
JUSTICE SOUTER: Well, I mean that's the essential problem with common law adjudication. And there is not much we can do about that.
MR. MILLER: But it's a problem that is particularly acute here, given the volume of claims that the VA has.
JUSTICE GINSBURG: What is the experience? When the case is remanded, it goes back to the -- does it go back to the regional? Suppose the -- the veteran is now given an opportunity to present whatever additional substantiation.
MR. MILLER: The claim, when remanded from the Court of appeals for Veterans Claims, goes back to the board. In most instances the board would then send
it back to the regional office for further development.
If I could reserve the remainder of my time.
CHIEF JUSTICE ROBERTS: Thank you, Mr. Miller.
Mr. Meade.
ORAL ARGUMENT OF CHRISTOPHER J. MEADE
ON BEHALF OF RESPONDENT SIMMONS MR. MEADE: Mr. Chief Justice, and may it please the Court:
I would like to make three points. First, because notice is integral to the system that Congress designed, the VA's failure to provide notice is likely to prejudice the veteran.
Second, it would be difficult for the veteran and comparatively easy for the government to carry a burden. It would be difficult for the veteran because under the government's rule the veteran would need to engage in a speculative exercise, identifying what evidence would have been developed had the veteran been notified and had he received the full assistance of the agency.
JUSTICE ALITO: Why is it a speculative enterprise? If you are correct, and the proper resolution in a case like this is a remand, let's say all the way back to the regional office, and if before
the regional office it's the veteran who will need to come forward with some evidence supporting the claim, why does it make sense to remand the case to the regional office if there is no possibility that when the case gets back there the veteran can come forward with medical evidence that's needed?
MR. MEADE: Two reasons, Justice Alito: First, it's not clear even in the Veterans Court that the veteran will have notice of what's required, a point I would like to address.
But, second, if it's remanded, the process will develop as it should have in the first place, because under the statutory scheme there is both the VA and the veteran, the informed veteran, who have joint duties and together during an interactive process they develop the evidence together. And during this interactive process, to answer to Justice Stevens's question, the veteran is prohibited from hiring a lawyer. Without having the most basic notice of what's required, the veteran cannot participate in this process. And the only way we can know how the process would really work would be to give the veteran the notice that he was entitled to in the first place and then allow the process to unfold as it should have.
JUSTICE ALITO: What if you have the
situation -- and I think actually your co-Respondent's case illustrates this better than yours. But you have a situation where the record as it has developed contains some evidence that supports the veteran's position and some evidence that supports the position in favor of denial of benefits. The Veterans Administration all the way up through the process finds that the evidence contrary to the veteran's position is much stronger and denies the claim on that basis. The veteran says: I didn't get notice of what exactly I needed to prove.
Now, if on remand to the regional office it's still going to be up to the veteran to come forward with medical evidence showing hearing loss or vision --connecting the vision loss to something that happened in the service, why does it make sense to send it back if there's no possibility that the veteran is going to be able to do that when the case gets back?
MR. MEADE: Well, the answer is, first of all, that we don't know how the process would unfold once the veteran has notice. Even if there is evidence in the record, we don't know what evidence would have been developed had the veteran had proper notice.
In addition, veterans often are not --
JUSTICE SCALIA: Excuse me. Why is that? I'm not sure I follow you on that point. Once he's got
up to the next level and finds what the notice should have told him, why can't he come up with it then?
MR. MEADE: Well, for a few reasons. First of all --
JUSTICE SCALIA: You say it's a de novo, right, at this next level?
MR. MEADE: First of all, it's unclear whether the veteran would even have notice even at that point. None of the other requirements that the agency's is required to give are the same as the notice requirement. However, if in appropriate cases they have given the actual notice by the time it reaches the Veterans Court, they can use that to rebut the prejudice. And that's what the Veterans Court said in Vasquez-Flores.
JUSTICE KENNEDY: In your case did your client attend the initial hearing?
MR. MEADE: There was a medical examination that she didn't attend. There was a question of where the notice was sent, and this is at 70a of the Petitioner's appendix. There was confusion. Apparently, notice was sent to the wrong address by the agency.
JUSTICE KENNEDY: Well, what's the first time that your client knew that this claim was going to
be processed at a particular time or the first time your client knew it had been denied? I just was never clear on the fact of what happened. If the notice was lost in the mail, so how did she know there was a hearing at all, or did she?
MR. MEADE: She later informed the agency that she had changed her address. But even it appears that further notices were sent to the wrong address.
JUSTICE KENNEDY: I'm just trying to -- it seems to me at the first hearing, if she in fact is there, they say, well, now you have to give us some notice. And then at that point -- or some documentation, and at that point, at the initial hearing, everybody knows who has to produce what.
MR. MEADE: But there is not necessarily a hearing. It was a medical examination that was supposed to be scheduled that she didn't attend, partly because of confusion of where the notice was sent.
JUSTICE KENNEDY: Is there usually an initial hearing?
MR. MEADE: No. There's only a hearing if the veteran requests it.
JUSTICE KENNEDY: Okay.
MR. MEADE: There is no hearing unless the veteran requests it. So here we have a situation where
the veteran did not know what she needed to provide. She has two sets of claims, one for her left ear and one for her right ear. Neither claim was intuitive. And she couldn't figure out what she needed to do without he notice --
JUSTICE BREYER: And so, why not just say that? What's the big problem of saying, judge, and then you say just what you said? And then the judge again won't be in doubt any more. So there's no need for this case because, either -- either -- either the veteran's agency will say, look, I walked that veteran through the process, I walked him through the process, walking him through the process he was told everything he needed to know, and there is no real problem here. It's just a formality that he didn't get the notice. And if that's true, I'm not in any doubt, unless the veteran tells me that that's wrong, and here was something, okay?
On the other hand, we have your case. Your case, she didn't go to the doctor. If she went to the doctor, maybe she would have found something out.
Again, I have no doubt, there is harmful error. So this case is a theoretical law professor's case that is never going to come up, because there is never any doubt. Either the VA did walk him through it and it's no deal -- big deal, because she can't come up
with anything, or she can come up with something.
MR. MEADE: I agree that burdens only matter in a handful of cases, but it makes sense to put the burden on the government for a number of reasons.
JUSTICE BREYER: It certainly does because it makes sense to tell the government: Government, you have to come up with every possible conceivable factual scenario and prove there wasn't a man from Mars who came in, and -- you know, that doesn't make sense.
MR. MEADE: But that's not what we ask for here. First of all, if the veteran actually received notice during this dialogue that the government describes, then the government can point to that as a way to disprove prejudice.
Second of all, veterans are often vulnerable. They are often unrepresented in the Veterans Court. Under the latest statistics, 64 percent are unrepresented at the beginning of the Veterans Court, 24 percent at the conclusion of the Veterans Court. Many have psychological and mental disabilities like post-traumatic stress disorder. Twelve percent of those who currently receive disabilities receive benefits for PTSD.
And it's not clear -- this is not lawyers; this is not doctors trying to receive benefits. This is
not just lay people. They are veterans who served the country --
JUSTICE BREYER: I know all this and why don't you just tell the judge that and say: Look at my client, judge, look at my client. My client obviously isn't going to understand what to do unless the client is told. And here my client wasn't told.
I'm the judge, I'm not in any doubt, you're going to win, okay?
So what I can't figure out is how to deal with this case, which as I said strikes me as a law professor's case that shouldn't make any difference in any real situation.
MR. MEADE: The reason is that it's helpful to have presumptions to deal with the typical case where we have in our case a first element notice error. The question where the veteran does not even know what evidence he needs to put forward, in that case it makes sense because of the high likelihood of prejudice to have a general rule that the burden should be on the government and not on the veteran.
CHIEF JUSTICE ROBERTS: No court is going to accept as a showing of prejudice the idea that, here, look at my client as a layperson who didn't know what to do. That's not going to be adequate, is it?
MR. MEADE: I don't think it would be.
That's why it makes sense to have a general presumption. In cases where the government can either show that the process worked as it should have or that the veteran actually received notice during the process, it can rebut that prejudice.
In fact, in 2008 alone, the government has been able to do so. And it has done so at least a dozen times in a number of cases, rebutting the burden of prejudice that was established by the Veterans Court.
CHIEF JUSTICE ROBERTS: What's wrong with Mr. Miller's response that at the very first level of review, you can start all over; and at that point you know precisely why your claim was denied?
MR. MEADE: Well, again, there are various levels of review. But the notice to start that first level of appellate review does not necessarily give the veteran the notice that she is entitled to.
CHIEF JUSTICE ROBERTS: That was my question. Is it -- is it -- I take it it's more than just a stamp saying "denied," right? There is some explanation in every case?
MR. MEADE: Exactly. There is a statutory requirement that a statement of reasons needs to be provided, but the statement of reasons don't necessarily
correlate with the detailed requirements under the notice statute. Under Vasquez-Flores what the Veterans Court said was that the notice needs to be quite detailed and the denial letter in a particular case might not map on to those particular requirements.
In October of this year, Congress went farther and said: We want these notice letters to be even more detailed. We want to give the veterans more notice, which shows that the Congress is concerned about these notice letters and wants to make it clear to the veteran what is required.
Let me answer a point that Justice Alito raised before. We are not asking here for a presumption of benefits. All we are asking for is a remand so that the veteran can get notice and have the process proceed as it was meant to in the original circumstance.
JUSTICE GINSBURG: Does the -- the notice can be given -- skipped entirely, as it was in Simmons case, or notice could be given but it's defective. It can be defective in a major way, it can leave out -- you said Congress recently required a more detailed notice. Do we treat all those like, as long as the notice doesn't measure up fully to their statutory requirement, then the veteran goes back to square one? And so, you wouldn't make any distinction between whether the notice
was not given at all, and the case where the notice was given, but it was incomplete?
MR. MEADE: The question of whether the notice is okay or not, is a question for the Veterans Court, a factual finding.
Generally, though, I would agree with you that either no notice or incomplete notice are the same and would trigger a first notice error. There would be cases, I suspect, where the notice was erroneous, but only on a technical ground, that the Veterans Court would not think of as being a first level notice error.
One final point I would like to make, Your Honor, is that in passing the statute Congress made it clear that it wanted to assist all veterans, including those whose claims did not appear meritorious on their face, and it did so by overruling the decision in Morton
v. West in the Veterans Court.
That case has said that a veteran needs to meet a certain minimal threshold before receiving VA's assistance, that first the veteran needs to show that the claim is well grounded. Congress rejected that in passing the statute and said: Congress wants to help all veterans, including those whose claims don't seem meritorious on the face and including those who can't make a threshold requirement. And Congress specifically
rejected the policy rationale of the Veterans Court and said that they want -- Congress wants to use resources to help all veterans, including those whose claims are not meritorious on its face.
Thank you, Your Honor. CHIEF JUSTICE ROBERTS: Thank you, Mr. Meade. Mr. Lippman. ORAL ARGUMENT OF MARK R. LIPPMAN ON BEHALF OF THE RESPONDENT SANDERS MR. LIPPMAN: Thank you. Mr. Chief Justice, and may it please the Court:
Justice Br eyer, I would like to address one of the observations you made applying O'Neal and Kotteakos and the "grave doubt" standard.
The problem here is that those standards assume a fully developed record. That's why it's not a perfect fit here because the very notice failure, the defective notice, prevents a fully developed record.
JUSTICE BREYER: Well, it seems -- what I was trying to get to, which I don't see how to quite get there -- it seems to me that if something really went wrong, if there -- there's no notice, that "veteran, you have to put in some material, or you are going to lose," if there is no notice of that, and he really
didn't get any notice during all this cooperative process, then I think the Veteran's Court is right. At that point I think it's fair to assume that he's hurt.
But if he got the notice -- and there'll be a few cases where he had nothing to produce, but a lot of them he would have had something to produce. They know it, we don't know. The Veteran's Court knows. Now the other three matters -- who is supposed to produce what, and do you have general knowledge, can you produce whatever you want -- I would think it would be very rare that a veteran was hurt, if he knows the first, by not knowing the second, third and fourth.
And therefore, I think he better come forth to explain in the brief, in the brief, why this matters. Now, that's what it seemed to me the Veterans Court set up. They know about it. They set that up. It's common sense. So, how do I get to a legal result that says just that? Or can I or should I?
MR. LIPPMAN: I don't think you should, and if my case could be used as an example --
JUSTICE GINSBURG: Your case is one where the veteran did get what they call the first level notice.
MR. LIPPMAN: Correct.
JUSTICE GINSBURG: So Justice -- the
implication of Justice Breyer's question is that your client would lose, because your client did get the first level notice and you say that that's not good enough.
MR. LIPPMAN: That's correct. He did not get the second or third level of notices; that is, what the government said it will get and what he was required to get.
This is the letter or part of the letter, critical part of the letter he got. It says: "We are making reasonable efforts to help you get private records or evidence necessary to support your claim." So he had every reason to assume that the -- that the VA would get the evidence that was necessary.
JUSTICE ALITO: Why doesn't this make sense in your case? I think this illustrates what is troubling to me about the Federal Circuit's decision, but maybe I am missing the point.
Your client was denied benefits for failure to show a causal connection, to show that his vision loss is service-related. He provided evidence from two private ophthalmologists or optometrists providing very weak causes of -- evidence of causation. One said it was not inconceivable that this was the cause of it. He was examined by two VA doctors, who said it was more likely that this was caused by post-service infection
rather than by an explosion while he was in the service.
Now if the case -- if the notice was defective, why does it not make sense to say to your client, show us that you can come up with some medical evidence that shows that this is service-related, something more than a doctor who says it's not inconceivable?
Then it makes sense to remand it. But if you can't do it on appeal, what sense does it make to remand it, where the same failure to provide evidence is going to doom his claim?
MR. LIPPMAN: Two answers to that, Your Honor.
The first is, the government makes the proposition that all we need to do is offer an explanation. But in legal terms, that is a proffer on appeal, and that is every bit as evidential as the actual evidence itself. Now, if we -- if we are to have a whole practice of proffers, it opens up a Pandora's box. I mean, where -- where do you stop if you make an exception for extra-record evidence, when the statutes make it clear that the evidence or whatever you are using has to be before the agency.
JUSTICE BREYER: Why is that such a tough thing to do? It sounds like it's sort of -- is there
some law out there that stops you from saying in the brief in a paragraph that, we would just like you to know, Judge, that we had some evidence here, or we have some now that we want to present to them. That's all.
And then if I see that, I would say, my goodness -- and you describe it in three sentences. Now what is -- the Constitution doesn't stop you from doing that, does it? What stops you from doing that?
MR. LIPPMAN: The statutes stop you from doing that.
JUSTICE BREYER: They stop you, but the Veterans Court said to do it. So -- and they are the one who know this area and they said you should have to do it.
MR. LIPPMAN: But with all due respect, I think the Veterans Court got it wrong. I mean --
JUSTICE BREYER: Between me and the Veterans Court, as to who knows best how to work this system, it's ten to one it's not me.
MR. LIPPMAN: Okay. Let's look at it this way. Let's take it outside the VCAA context. A veteran has a right to a hearing, an evidentiary hearing, upon request. Let's say he requests the hearing, and for whatever reason the VA doesn't schedule one. He loses that right even though he requests it. Are we then now
to have proffers on the court of appeals saying, well, I would have said this, I would have said this, I would have said --
JUSTICE BREYER: What they decided there is if there's no notice at all, no, you don't have to have a proffer, because it's up to the agency to do just what you want. But if it's one of these other three, far more technical things, which occur far more rarely, on that one, you better tell the judge in the brief how it makes a difference.
That's their conclusion. What's wrong with that?
MR. LIPPMAN: Well, there -- there is certainly no analysis to it. I mean, it's sort of an intuitive distinction and in my case, it doesn't work.
And I think --
JUSTICE KENNEDY: Well, the -- the statute says, and this is consistent with Justice Breyer's line of questioning, that the Veterans Court, the Court of Appeals, the Veterans Court of Appeals, shall give due account to the notice -- to the rule of prejudicial error. That seems to me to indicate that it has some discretion in how to decide the harmless error rules that it will apply, and that it knows more about it, in Justice Breyer's term, than either we or the Court of
Appeals for the Federal Circuit. Why can't I get that out of this statute?
MR. LIPPMAN: Well, I guess you would have to reconcile the more specific statute that deals with only able to submit evidence or any other material at the time -- at the of the agency's adjudication. In other words, I don't see that statute allowing post-agency adjudication proffers or even submitting evidence. I mean, just by the very line of your questioning, it seems to me that you find it interchangeable whether you assert it in your brief that this is what I would have done or whether you would have submitted the evidence itself. They are both evidential. And another problem, which is really --
JUSTICE ALITO: Your position seems to be not that the government should have to show prejudice, but as applied to a case like yours, that there is an irrebuttal presumption of prejudice. What could the government show? They would have to show that there is not a single ophthalmologist in the country who, if he or she examined Mr. Sanders, would find that the vision loss was attributable to a bazooka explosion in World War II?
MR. LIPPMAN: No, Your Honor. The -- what the government must show is well set forth in the
Federal Circuit's opinion. It must show that the claimant had either actual knowledge of what he needed to submit; second, that he had some constructive knowledge, in other words a reasonable claimant would have had notice; or three, that the claim couldn't entitled to benefits as a matter of law.
So that's the beauty --
JUSTICE BREYER: -- but I don't understand that. I mean, let's suppose, contrary to your wishes, that the client was not hurt. He was hurt by some other thing, nothing to do with the bazooka. That's not your client -- that's the imaginary client -- but everything else is the same.
Well, does that mean because they forgot to tell the client that the client has to go and produce some evidence, and she thought the Veterans Administration would produce all the evidence? Because they forgot that, your client wins and gets the money?
MR. LIPPMAN: Well --
JUSTICE BREYER: That doesn't seem --
MR. LIPPMAN: -- he wouldn't get the money, okay? Because all -- we are talking about a remand, not a --
JUSTICE BREYER: I know. Now you are going to be back in the remand and you now have to produce
some evidence, don't you, or you lose?
MR. LIPPMAN: Correct.
JUSTICE BREYER: So then why is it a big deal that you summarize what you're going to produce in the brief? We're back where we started.
MR. LIPPMAN: Let me answer it this way. Let's assume we do make proffers, as you suggest, at the Veterans --
JUSTICE BREYER: I might have called them a proffer. I just want to say it's a description in the brief of how you're hurt.
MR. LIPPMAN: Well, in the legal sense I consider it the same thing. Maybe Your Honors don't, but I do. And -- let -- let's say he proffers or describes in his brief what medical evidence he needs to submit.
How could he in good faith make a proffer and speculate on what the doctor -- let's say he is seeing a treating doctor. And on page 49 in the footnote, there is a discussion of what I'm going to explain to you now. But let's say he alleges, well, if I had gotten notice, I would have gone to my treating doctor, and I would have submitted questions and I would have submitted the claims file, but I can't know in good faith what the doctor would say. It's inherently
speculative. And that's one good policy reason, apart from the clear categorical language of the statute.
CHIEF JUSTICE ROBERTS: You started earlier, at one point, to say how this actually worked out in your case. Could you just spend a minute to explain that?
MR. LIPPMAN: How --
CHIEF JUSTICE ROBERTS: How it makes a difference in your case.
MR. LIPPMAN: Sure. It was a little unclear until a case -- if I may answer it this way, Your Honor.
My -- the Board of Veterans Appeals decided there was only one medical evidence it would follow, and that was the 2000 VA exam. And that exam really denied the veteran because there was no corroborating medical evidence contemporary with his injury and the symptomology thereafter. If I could have it go back down, what I would do is try to find what we call "buddy statements," lay statements, that would corroborate that he had symptoms from time of service and well on, which under a case called Buchanan is sufficient evidence to base a finding of service connection.
CHIEF JUSTICE ROBERTS: So why wasn't that enough for you to establish prejudice, regardless of who had the burden?
MR. LIPPMAN: To make that allegation at the court of appeal that I would have gotten this?
CHIEF JUSTICE ROBERTS: Uh-hmm.
MR. LIPPMAN: Quite frankly, I don't know if I would have gotten it. I mean, I would try.
CHIEF JUSTICE ROBERTS: Well, you would phrase the prejudice in terms of what you would have done and what you weren't able to do, and which you can now go back and do if it's remanded. You don't have to have the evidence that three people would say he was complaining about the vision loss at the time. It just seems a reasonable thing to -- you know, maybe it is reasonable, maybe it's not; but the Veterans Administration has more knowledge about that.
MR. LIPPMAN: Your Honor, in a way, the third prong of the Federal Circuit's analysis does that. It tells the government: Look, if the veteran could not prove his claim, no matter what the facts -- evidentiary development was, then the veteran loses.
So really it's all contained in the third prong. And that's why the Federal Circuit's analysis in my opinion is so good. It's because it doesn't make you go outside of the record to reach these issues, and it allows the government a lot of room to prove that it's not worthwhile, this claim's not worthwhile to, remand.
I ask the Court to really carefully look at that because I know the Federal Circuit spent -- must have spent a lot of time in coming up with that analysis.
JUSTICE GINSBURG: Do you know where this first level, second level -- I'm looking at the statute on page 98a of the petition. And it seems to me all part of one. It is one notice? It doesn't seem to specify a second and a third. It's describing the contents.
MR. LIPPMAN: Well --
JUSTICE GINSBURG: "As part of that notice, the Secretary shall indicate which portion of the information and evidence is to be provided by the claimant and which portion by the Secretary." The statute seems to be talking about one notice, not "first level," "second level."
MR. LIPPMAN: Well, they haven't enumerated it, Your Honor, as such. But analytically it breaks down to that. But the fourth element, because it says, look, you'll have to tell the claimant what the contents, what you need. Then it says, well, what we are going to get for you, and then that's the second. And third one is what you have to get.
The fourth one was engrafted upon it because
in the regs 3.159 has a more generalized advisement, in addition to this --
JUSTICE GINSBURG: I thought that was taken out, the fourth one. No?
MR. LIPPMAN: Not to my knowledge, Your Honor.
JUSTICE GINSBURG: And tell me what that is. It's not in the statute?
MR. LIPPMAN: No, it's in 3.159. I don't recall the exact -- it's 38 C.F.R. 3.159. I don't recall offhand the exact subdivision, Your Honor.
JUSTICE KENNEDY: Well, it just tells that the Secretary requests the claimant provide any evidence in the claimant's possession that pertains to the claim.
MR. LIPPMAN: Right.
JUSTICE KENNEDY: That's fairly straightforward.
MR. LIPPMAN: It's not as important as the first, second, and third elements of the statute, for sure, Your Honor.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
MR. LIPPMAN: Thank you.
CHIEF JUSTICE ROBERTS: Mr. Miller, you have four minutes remaining. REBUTTAL ARGUMENT OF ERIC D. MILLER
ON BEHALF OF THE PETITIONER
MR. MILLER: Thank you, Mr. Chief Justice.
I would like to make just three points. First, on the question of what is provided to the claimant after the denial in the regional office. Before they get to the Board of Veterans Appeals, the regional office issued them a statement of the case, and that's described at 38 C.F.R. 19.29, and that regulation has fairly detailed requirements about what has to be in there in terms of a description of the evidence, the description of the applicable laws and regulations and analysis of the board's conclusions, or the regional office's conclusions and its application of the law to the evidence.
The second point --
CHIEF JUSTICE ROBERTS: So you think it's perfectly clear from that what gaps need to be filled in?
MR. MILLER: In many cases, it would be. But perhaps there would be some where it wouldn't, and of course in those cases if there can be some articulation of why it wasn't then we would agree --
JUSTICE SOUTER: At that point is the claimant disentitled to have a lawyer?
MR. MILLER: No. Once they file the notice
of disagreement in the regional office and receive the statement of the case, they could then have a lawyer in the board.
JUSTICE SOUTER: But at the point they get the notice and they are trying to evaluate the significance of the notice, they are not entitled to a lawyer?
MR. MILLER: If you are referring to the statement of the case, by the time they receive the statement of the case they are at the stage of the proceedings where they could get a lawyer.
JUSTICE SOUTER: Well --
JUSTICE KENNEDY: But what about the notice, the original notice? They don't have a lawyer at that point? That was Justice Souter's question. I didn't --
MR. MILLER: Oh, if you meant the original notice required by the statute. No.
JUSTICE SOUTER: No -- at the point where the statute requires original notice, they are not entitled to a lawyer.
MR. MILLER: Correct.
JUSTICE SOUTER: We agree on that. Now, they have gone through stage one of the litigation and they have lost. And they are getting a statement of reasons. At that point, are they entitled to have a
lawyer?
MR. MILLER: Yes.
JUSTICE SOUTER: But whether -- I guess the situation that I am concerned with is, the person up to that moment not only does not have, but is not entitled to have a lawyer. The person then gets a piece of paper in the mail that says, "You lost. These are the reasons." If the person -- if the claimant then says, "I don't know what they are talking about. I will go get a lawyer," then I can understand at that point a relatively sophisticated mind is going to come in to understand it. But if the client simply reads it and says, "I really don't know what they are talking about here or at least I think I know what they are talking about, and I guess it's hopeless," the person is not likely to have legal advice.
And what I'm getting at is that the person at that stage, at the moment the notice arrives, is in a position, I would think, of extreme relative disadvantage.
MR. MILLER: I think --
JUSTICE SOUTER: You can see where I am going with the argument.
MR. MILLER: Yes. The important point is that the only way the prejudicial error becomes an issue
and really the paradigmatic case that we are talking about is where the veteran does get counsel and has reached the Veterans Court and has identified the error in a way that's persuasive to the Veterans Court, but nonetheless identifies no additional evidence that they would have --
JUSTICE SOUTER: No, but it seems to me that there are two points at which the veteran is at a disadvantage. And you are talking about the second of the two. I am talking about the first of the two. And the first of the two is the point at which the -- I mean, following the hearing, the veteran gets the notice and the veteran is not in a very sophisticated position to evaluate what the veteran is being told.
MR. MILLER: Yes, and a claimant who in the Veterans Court can say, you know, "I didn't understand and as a result I failed to present the -- because of the defective notice and my lack of understanding of the statement of the case, I didn't present this important piece of evidence, and here's how it would have been material," in that case, they would be entitled to a remand. But a remand --
CHIEF JUSTICE ROBERTS: When you have been saying "entitled to a lawyer," do you mean entitled to a lawyer or allowed to have a lawyer?
MR. MILLER: Allowed to retain counsel.
CHIEF JUSTICE ROBERTS: You can finish your --
MR. MILLER: I was just going to say that, given the volume of cases that the VA confronts, there is a serious harm to the system in unnecessary remands that have to be given priority over other cases and that divert resources from the adjudication of meritorious claims.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
The case is submitted.
(Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)
52
Justices heavily involved as attorneys argue veterans' claim case before High Court.
An attorney who practices veterans' law was in the Court for the arguments. He said: "I was at the argument and was not convinced that the Court 'got it'."
Background on the case:
http://www.vawatchdog.org/08/nf08/nfdec08/nf120908-6.htm
U.S. SUPREME COURT HEARS ORAL ARGUMENTS IN VA
BENEFITS CLAIM CASE -- Peake v. Sanders will decide
whether VA bears burden of proof that it informed
vet of information needed to process claim.
The case primarily comes down to what is the VA's responsibility when it comes to informing the veteran what they need to satisfy the claim and to perfect it, in order to prevail in the compensation process., the process is supposed to be non-adversarial not all out warfare against the natios veterans. They are required by law to help veterans win their claims.Sphere: Related Content
