MOD HAT OFF - Disabled Vet Hat On

There is a class action lawsuit in California. Two Veterans groups have sued the VA over their mental health care of veterans. These groups are not the well known organizations like DAV, American Legion, VFW and AMVETS. They are two I had never heard of Veterans United for Truth and Veterans For Common Sense.

Although the issue at hand is care, there is a much bigger issue that is being fought. It is whether the US Court system has an jurisdiction in how the VA conducts its business.

Congress has created a review system with the Board of Veterans Appeals and the Court of Veterans Appeals Court of Veterans Appeals. These Administrative Law Judges and Special Court Judges have jurisdiction over all claims within the VA system. They deal with individuals try to get care and benefits. Unlike US District Court, Appeals Courts and Supreme Court Judges, these appointments are not lifetime.

One problem with this system is time. It takes forever to get to the court. You first must go through the entire VA RO and BVA process and have a final decision before you can appeal to the court. As many here will share, that can seem like a lifetime. With the US District courts, emergency matters can be heard fairly quickly. This case was first filed in July 2007, and is going to trial this week. If the VA could move that quickly in resolving claims and allocating resources for care, this case would not be before the court.

This suit is really against an agency, the VA and the White House and Congress that has not funded it to the level needed during a war. The VA has always been short of money. We have had two commission tell 'THEM' that they need to have more money and change how they do things. Congress has budgeted extra money beyond what the administration has asked. Yet it is a small pittance versus the amount that is spent prosecuting the two wars.

The VA needs to be properly funded, disabled VETS need to be properly compensated and the system needs to be VET friendly.

Putting on my disabled vet hat too:

I think I've heard of Veterans United For Truth. Very grass roots. They organize meetings all the time over here in Chicago. I think it's the same group.

I don't recall the law or precedent, but under Title 38 the VA can establish services at their will. That is to say, vets can't sue over the type of care the VA provides. I'm not taking about malpractice. I'm taking about the manner whereby the VA issues care. Just so long as it conforms to generally accepted medical practices. Whereby VA care is granted by "congressional activity".

Yet there's a famous exception. I don't recall the exact case. It's the one where WWII vets sued the DOD in federal court, because at enlistment, they were guaranteed in writing a "lifetime of free medical care". And they won. Even though the DOD argued the vets could get care from the VA. However, the vets successfully argued that the VA didn't provide a "guaranteed lifetime of free medical care".

The case went back and forth in the federal system. And I think it was eventually overturned. Where the Supreme Court found the DOD had no authority to bind the government to provide vets with medical care.

RO and BVA claims are strictly administrative in scope. Under control of the VA. While the CAVC is an actual court. Under the control of the federal judiciary. After that it's the Supreme Court.

The establishment of the CAVC, back in the 80's I think it occured, was the best thing to happen since Title 38 was enacted. Whereas before that time, after exhausting administrative remedy under Title 38, veterans had to seek redress with the Supreme Court; a most expensive proposition.

And I've looked at hundreds if not thousnads of CAVC decisions. And they're rarely if ever wrong. Actually since the CAVC came into existence, most of the Supreme Court activity at Title 38; is the result of the VA bringing suit, in order to overturn precedent established by the CAVC. The case of Brown v. Gardner being a classic example. And I can't recall that the Court has ever overturned a CAVC decision.

But I think the alleged problems with the RO and BVA actually lies with claim's management on the part of advocates. It's very poor in my opinion. For example, when I first filed with AMVETS, I was literally out of my mind. The rep who helped me with my claim had no legal background. She told me to just "put down all that's wrong with you." There was never any discussion as to the hows and whens and whys.

So of course my claim was denied. Then AMVETS bailed on me. Their area chief advocate wrote me saying as much. And I called him to ask why. To which he simply said my case had no merit. With no proper explanation. He cited nothing at law or precedence.

So I went at it alone and won. And in the process read and digested thousands of BVA and CAVC decisions. And running through many of these denied claims was a common thread. Poorly prepared claims. Which is easy to see in a decision.

I've since spoken with many reps at my VA hospital. And none of them impressed me in the least. I'd say that they were simply pushing paper. With no sense of authority or justice. It doesn't seem they even follow a predetermined legal logarithm. I'd say they were just winging it.

So how can the VA cope when it recieves a mountain of ill prepared claims? All the money in the world isn't going to help the situation. The solution is for service organizations to establish higher standards. That's my opinion.

And those with no service-connected issues should be thrilled the VA even talks to them. Where Title 38 says nothing for them, other then that provided for by "congressional larghesse".

I'm curious so I'll look for a link to this story. See if I can find out the exact legal basis for the suit. However, on the face of it from what has been said, I'd say it has no chance. The federal judiciary simply has no authority to tell the VA its business. Nor would we want it as such. We've got a seperation of powers in our America republic.

Best wishes!

I wanted to add. I know a lot of folks want the VA to be more "user friendly". I hear it all the time.

So here's what we have in this. We've got a Title 38 claims process that is "liberally construed in favor of the veteran". Where claims in equipoise (50/50) are in favor of the veteran; where no such standard of proof exists anywhere else in the nation, let alone the world.

We have a Title 38 that grants no guarantee of care to those without service connected issues. Yet the VA does so all the time. As the result of "congressional larghesse".

Title 38 has been amended numerous times at matters regarding presumptive illness. Where then service organizations should mount ever increasing efforts to increase the scope of such presumptions.

The fight doesn't end when we leave the service. And for many it just begins. The VA claims process is adversarial. It reflects the legal procedure of our country. Other nations, like France, have a non-adversarial process. But none of it is ever "friendly". Nor should it be. For we are a republic. So we can't allow the whims of the nation to destroy us. And I believe in the system. To the victor goes the spoils.

Best wishes!