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Troy Spurlock

Court Of Appeals Rules In Favor Of Veteran - New Legal Precedent

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From the ruling, and I believe this says it all (which is what veterans have been arguing all along):

Veteran's disability benefits are nondiscretionary, statutorily mandated benefits. A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations. We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.

Sometimes it takes years to win a claim, but as proven here it is well worth it to continue that fight and never give up, never surrender to the incompetence and gross misanagement of disability claims by the VA Benefits Administration.

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Sorry...forgot to add a link to the court ruling:

http://www.vawatchdog.org/09/nf09/nfaug09/...%20Decision.pdf

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We have to see how this decision is going to apply. Will courts be allowed to take serious action against the VA for denying due process? It will take some time for VA legal community to digest this. In the civil legal system when people are denied due process it is a big deal. I don't know about administrative law arena.

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We have to see how this decision is going to apply. Will courts be allowed to take serious action against the VA for denying due process? It will take some time for VA legal community to digest this. In the civil legal system when people are denied due process it is a big deal. I don't know about administrative law arena.

Administrative law concerns the power of an admnistrative agency, its process and procedures; which apparently the courts have been unwilling to address in ordering the clear necessary changes in order to better the VA claims filing process (as ruled here: http://www.twincities.com/localnews/ci_13045686); which, as I am sure you will agree, is broken and has been broken for more than 40 years.

Sooner or late, be it a court or the GAO itself, the VA will eventually be overhauled when it can no longer answer for the increasing backlog of disability claims and rising suicide rates linked to inadequate, improper or no care at all on the part of the VA of the nation's veterans.

Notwithstanding, this current case/ruling was not about the administrative law of the VA, but rather the fair and just interpretation and application of nondiscretionary statutory law (e.g. the Code of Federal Regulations and United States Code) concerning disability benefits (in part); and whether or not the misinterpretation and misapplication of those statutory laws was in fact a violation of the 'Due Process' clause. The court ruled it did, and in doing so clearly stated that veteran disability benefits and the applicaiton thereof are Constitutionally protected, and not at the discretion of the VA.

Additionally, this case showed a clear example of where the VA, through false documentation, established and facilitated a fallacious denial of the plaintiff's disability claim. This, to me, is another important part of this case that I believe will serve veterans well if used correctly.

It's no secret that the VA has general practictioners conducting the vast majority of C&P exams (except those requiring a specialist - e.g. psychiatrist for PTSD claims); moreover, they're given "read between the lines" instructions to document their findings of a 5-15 minute C&P that supports the VA's position, not the veteran's.

Case in point is the Vietnam veteran I am helping with his chloracne claim. He recently went to a C&P that was specifically for his left knee condition that the VA has been denying since 1970; but the general practitioner - i.e. not an expert in dermatology or chloracne cases as it relates to Agent Orange exposure - basically blew him off in regards to that chloracne claim.

As it was communicated to me, this 40 yr old something dr. made comments that his scaring has healed nicely and referenced his entrance examination record that referenced acne. There is a CFR that clearly stated that if a prior existing condition is made worse by military service, it can be service-connected. Clearly this too young of a doctor does not know this, otherwise he wouldn't have made such an unprofessional remark that had no relevance to the issue at hand.

Then when the veteran explained the scabs, puss, and sores caused great embarassment that he had to wear his hair long to hide it, the C&P examiner replied, "Oh, that was just the style back then." Another unprofessional remark...yet I'm sure the VA will appeal to his authority in continuing to fallaciously deny his chloracne claim (though the RO and BVA already stated on record he met the statutory requirements of presumption of exposure, admitted he was in Vietnam, etc.).

Long story short, this young gen. practioner acted no differently than a witness who was prep'd by counsel on exactly what to say and how to say it. The current case/ruling demonstrated that this is not beyond the VA since an official medical report was fallaciously altered in order to justify years of denials.

But you are right, it is too early to tell on how this case will work for other veterans. Nevertheless, this veteran finally received the justice he deserved; it's just too bad it took so long to get it. Moreover, it's terrible it takes a court to tell the VA they're wrong and get their act together.

The veteran I'm helping now, the VA has been blowing us off for the better part of 18 months; but once I sent a 156 page report to the Governor and Senator...he's now getting the C&P exams and a DRO review that she should have had more than a decade ago. Again, it takes another "higher authority" to get action...and it shouldn't have to be this way.

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Troy:

Thank you for a most excellent post.What makes it so good is the quote, the link and your narrative. I agree with you which makes it even better :D

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Troy:

Thank you for a most excellent post.What makes it so good is the quote, the link and your narrative. I agree with you which makes it even better :D

Thank you for your kind words.

Today I did a 23 min interview on a local non-profit station about trials and tribulations of veterans filing disability claims, how I am helping the veteran I spoke of; and it was a perfect oppurtunity to bring this case - just recently ruled upon - to the public eye a lot sooner than later (as I don't think we're going to hear about it on ABC, NBC, CNN or FoxNews).

It was the second time I was interviewed about the problems with the VA claims process...the first being here: http://willamettelive.com/story/Soldiers_r...with_VA121.html

When I get a copy of the televised interview on DVD, I'll have to upload it to my MySpace.com/support4veterans page.

Again, thank you...all of you and your continued service and support of veterans with your website and forum. Glad to be a part of it...hope I can do some good here.

T.S.

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