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Third Class Petty Officers
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About sox

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    E-3 Seaman

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    "Live Free or Die"

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  • Service Connected Disability
  1. OK Found A good read regarding Jurisdiction.... http://forums.military.com/eve/forums/a/tpc/f/163198221/m/1870011862001 The Application Of Precedential Decisions Of The CAVC And The Federal Circuit Rakkwarrior posted Mon 21 February 2011 07:52 PM In preparing a case to be submitted to the Board of Veterans' Appeals (BVA or Board), one must consider the application and discussion of standing Court precedents. Specifically, pursuant to Title 38 U.S.C. §7104© "The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department." The Board's mission, as set forth in 38 U.S.C. § 7101(a), is "to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner." The Board's goal is to issue quality decisions in compliance with the requirements of the law, including the precedential decisions of the United States Court of Appeals for Veterans Claims (CAVC) and other federal courts. Some links have been provided by mil.com regarding VA Fast Letters (FL's) and Training Letters (TL's), however, I did not notice an index of Decision Assessment Documents (DAD's) and other internal circulars which describe how the VA Regional Office's adjudicators may apply Court Precedent. The Board, however, is comprised of Veterans Law Judges and Staff Attorneys who are not necessarily bound to the confines of such legal guidance. However, they may use the quasi-legal material to inform their decision. The the United States Court of Appeals for Veterans Claims (CAVC) is an Article I Court codified under Chapter 72, Title 38 U.S.C. to decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary; hold unlawful and set aside decisions, findings which are found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C ) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or( D) without observance of procedure required by law, pursuant to Title 38 U.S.C. § 7261. This Federal Circuit Court has limited jurisdiction in reviewing the decisions of the CAVC. Their authority is limited to deciding all relevant questions of law, including matters of statutory interpretation.   See 38 U.S.C. § 7292(d)(1).   We can set aside a regulation or interpretation of a regulation relied upon by the CAVC that we find to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;  (B) contrary to constitutional right, privilege, or immunity;  © in excess of statutory jurisdiction, authority, or limitation, or in violation of a statutory right;  or (D) without observance of procedure required by law."  Id. In general, however, this court may not review factual determinations or the application of a specific set of facts to a law or regulation.   See 38 U.S.C. § 7292(d)(2);  Anglin v. West, 203 F.3d 1343, 1345 (Fed.Cir.2000). The Federal Circuit Court also has authority to review decisions of the Veterans Court regarding the "validity of any statute or regulation or any interpretation thereof" and to "interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292©; see Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed. Cir. 2007). [They] review the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed. Cir. 2002); Howard v. Gober, 220 F.3d 1341, 2007-7306 4 1343 (Fed. Cir. 2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran's claim, we treat the application of law to undisputed fact as a question of law." Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008). In regard to the aforementioned, BVA decisions may not be cited as precedent setting in any instance, and incorporation of specific BVA decisions in individual claims often detracts from the probative value of the claim, namely because the BVA ruled on specific findings of fact to that veteran's case, and while the legal precepts which provided the reasons and basis for the Board's decision offer significant insight into the application of the law, it does not alleviate those citations to have specific bearing on your case. In a recent February 2009 hearing before the U.S. Senate Committee on Veterans' Affairs Richard Cohen of the NATIONAL ORGANIZATION OF VETERANS' ADVOCATES properly assessed, "In the vast majority of cases, a BVA staff attorney is the first person to review a veteran's claim with even a basic understanding of relevant CAVC case law and its potential application to that claim. RO adjudicators are almost completely untrained in and unaware of CAVC jurisprudence, and the low quality of their decisions reflects this ignorance." I cannot agree more, in most cases, however as noted before, VA Regional Office adjudicators are guided by internal guidance or DAD's. A precedent decision is a court decision that is cited as an example or analogy to resolve similar questions of law in later cases. Precedent decisions are made by en banc (full bench), or a panel of three or more judges. It is the similarity of the Court's precedent to the individuals case which will compel the Board's persuation on the issue at hand. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute. As a National Service Officer (NSO) of the Disabled American Veterans (DAV), I am accredited to practice VA law as an attorney-in-fact up to the Board of Veterans' Appeals, and currently we are the only organization to have a non-attorney practitioner allowed to practice before the Court. NSO's are internally trained in VA law, we do not require yearly cerification by VA's ridiculous and often inadequate testing, or seek outside assistance from other sources. This is achieved through a 16 month OJT program, and a three year Structured and Continuing Training program which covers not only regulation, and U.S. Code, but also precedent decisions of the CAVC, Federal Circuit, and as it pertains to VA law, Supreme Court Decisions such as that found in Shinseki v. Sanders (2009). The latter training is ongoing and continuous throughout an NSO's career. We use this independent knowledge and precepts of law to prepare briefs in lieu of VA form 646's and supplemental appellate briefs pending before the Board. Here are some references in assisting the readers in locating Court Precedent: U.S. CAVC: http://www.uscourts....ns/Opinions.cfm The U.S. Court of the Federal Circuit; http://www.cafc.usco...vc/all/p/p.html The U.S. Supreme Court: (search "Court of Veterans Appeals") http://www.supremeco...ket/docket.aspx It is the Court's review and discussion of relevant case law which will guide successful argument before higher appellate bodies, although I have been known to write briefs to the VARO, I usually constrict these to the confines of the internal Manual provisions, FL's, TL's, and DAD's. I had learned that aggressive posturing only confused the VARO and compelled furtherance of certain cases to BVA. One thing a claimant must understand is that not all issues will be won at the Regional Office level, some claims are too complxes, or are outside their legal authority to grant. In these cases it is better to prepare for VLJ review than to continue the case going in circles at the VARO, with redundant Statements and Supplemental Statements of the Case (SOC/SSOC's). It is wise to understand when the case can reasonably granted at the RO level, and when it cannot. *Other VSO's have training programs that I am not completely privy to, but most include training from the NVLSP, NOVA or other attorney groups. I do not disparage other VSO's but do routinely analyze whether or not their methods and prosecution has been effective. I also do not intimate that all DAV NSO's which members of this forum may have encountered are always and infallibly right, or that they correctly demonstrated the organizational values, and mission to the veterans' community. For a bit of candidness, I will tell you it is difficult to recruit for an NSO position, and because we are all disabled, some do not make it, or cannot achieve the level of concentration to maintain the pace at which we are required to initiate, develop, and prosecute claims.*
  2. Chuck75 I actually requested an audit early on of my account due to some changes in payment for medical offset. After receiving the audit I received a statement fro the regional office stating “Based on our audit, We found that the amount you were paid equals the amount you were due. This means we paid you correctly.” Then about a week later a statement saying I owed $6,500. My disability compensation was garnished the same month 100%. I then asked for a waiver for the debt and also requested a second audit request. It took 4 months to get the results of the audit which came back as stating “We reviewed your claims folder. We determined that your overpayment is correct. Enclosed is the detailed analysis that explains why you were overpaid.” Then a week later a denied debt waiver. Keep in mind I was appealing their decision in an attempt to validate what was going on and they took 4 long months without disability compensation to do the audit. The first audit only took about a month and a half so it looks like they were dragging their feet on purpose. The debt ended up getting paid in full due to an increase in compensation with the retro. I have been fighting this as I don't feel it is reasonable to state that you were paid correctly and then owe $6,500 a week later. Not only that but they referred the debt to the treasury offset program before the proper timeframe while waiting for the results of the audit and waiver results. I ended up writing a statement to the TOP program about the debt being under dispute and they rejected the claim and kicked it back to the VA for garnishment. I can't understand how any of these actions gives a person due process rights and honestly they are very deceptive to the debtor. PWRSLM I did a little research on TORT FTCA under 38 USC and it looks like the tort claims are primarily focused on individuals working for an agency that violate law. I'm not sure if the individuals are going really fix the issues with the agency but it could make money for a lawyer etc. I also looked into the Debt Collection Improvement Act of 1996 which states "(5) To ensure that debtors have all appropriate due process rights, including the ability to verify, challenge, and compromise claims, and access to administrative appeals procedures which are both reasonable and protect the interests of the United States." The more research I do the more I see the Due process clause being protected or cited. Under the Fair Debt Collection Act 15 U.S. Code § 1692n - Relation to State laws it states "This subchapter does not annul, alter, or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter." And the State of New Hampshire under RSA 358-C Unfair, Deceptive or Unreasonable Collection Practices“XI. Threatens that nonpayment of a debt will result in the arrest of any person or the seizure, garnishment, attachment or sale of any property or wages without indicating, when a court order is a legal prerequisite to any such action; that (a) There must be a court order in effect permitting such action; and, where applicable, (b) That the debtor will have an opportunity to appear in court to contest such action prior to any such court order being effective;” These laws were cited on my Form 9 and mentioned at the BVA hearing and I asked under the FOIA for a copy of a NH court order for garnished benefits. Of course it was unanswered as they never got one.... Again thank you for your ideas and thoughts concerning this appeal. Best, Sox
  3. Okay, I have been doing a lot of research from 19 and 20 CFR ant title 5 USC. Honestly I cant find anything that will punch a hole through my constitutional concerns under 15 USC 1692 fair debt collections act. From what I have read not only is this USC applicable but the intent of the law is binding. So best case scenario the title 38 CFR is changed by the BVA worst case is my case makes it to the supreme court and they are force feed the decision. This could declare the debt collection activities of all federal government agencies declared unconstitutional if the additional state rights are not abided by, and the according CFR's are struck from the record and refreshed. I am hopeful this will help fellow veterans by preventing the abuses of immediate garnishment of all benefits until repayment by offering a little flexibility giving you enough to survive. I also find it strange that a government agency would completely ignore state law when the states originally gave the federal government its power under the constitutional convention and the subsequent bill of rights. It looks like Federal agencies have a lot to loose if this makes it to the top....
  4. I know it is a very broad question My appeal shows that the Veterans Administration did not abide under title 15 usc 1692n under the Fair Debt collections act concerning a clerical overpayment when reactivated under OIF OEF. I feel the debt collection practices do not follow the intent of fair debt collection practices act and they failed to afford state sovereign protections even after notification of the law. I am trying to understand the BVA Jurisdiction to determine what ability they would have to redress my concerns. I am hopeful that no other veteran will have to go through the agencies policy of immediate offset/ garnishment without some protections prior to said offset / garnishment. I do not see government agencies as above the law and not required to follow the very same intent congress set forth under the fair debt collections practices act. Thanks for your thoughts, Sox
  5. Jurisdiction simply gives the court the ability to make a decision on the case. For example: if you are pursuing a case concerning the 14th amendment you would have to take the case up with the state judicial system. If you pursue a case concerning the 5th amendment only a federal court would have jurisdiction. What confuses me is whether or not the BVA is an actual court or not. If it is a board what authority do they have to redress constitutional rights and are they bound by all of united states code or just specific portions of united states code. I'm not seeing a clear division on what they can or cannot make a decision on. That is the issue at large...
  6. I know about the USC trumping CFR but unfortunately just had a hearing with the BVA and brought up and read the usc statute showing the Department of veteran affairs violated my due process rights. I'm unsure how or if the BVA can address this if they have jurisdiction or if it will have to be appealed to he cva instead....
  7. Okay I have some questions Regarding the differences of the BVA CAVC and Supreme court Appeals.... Does the BVA determine or review the constitutionality of appeals based on due process? In non veteran courts they review Constitutional appeals in a strict manor, does this hold true for the BVA? If not how does the BVA respond regarding jurisdiction and appeals concerning due process? Does the CAVC review decisions regarding the BVA before they become final? If title 38 CFR doesn't coincide with United States Code how does the BVA address this? What other recourse does a veteran have at their disposal if their due process rights have been violated? Thanks for your help and consideration, Sox
  8. That is awesome! A bigger and brighter future should be offered to all of our children.... Congrats!
  9. Looking Up!

    Well sorry for the late response. We lost power untill last friday from Sandy and things are starting to go back to normal. I picked up my bin laden killed paper and it wasn't signed. Idk they said it was left in someones car etc., but I did recieve a poster personaly signed by the president with my name thanking me for my service and signed. So I am very happy with that and I will get it framed. As far as the Fight is concerned anyone that has gone through it is right about never being able to forget it. I can say that was some of my darkest times, and it came very close to breaking me as a person. But like many say to never give up and that is the honest truth. A big thanks to hait.com and their patrons, without you guys i would still be in the abyss. Many thanks, Sox
  10. Looking Up!

    Wow WOW! Went to the presidential event with the fiance. We were 10' from the president about 3 standing rows back watched the speach and both of us were able to shake the presidents hand. I thanked him for helping disabled veterans, He asked are you a veteran? I said yes and he shook my hand a second time with a gift. I put the gift in my pocket and as we were leaving i took a look. It was a presidential Challenge coin!! Havent heard about the paper but I think this is the best grand slam out there! I have been walking on air for a few days now and have a renewed spirit of possibilities. Thanks everyone things are now really looking up!!!
  11. Looking Up!

    Thanks Everyone! UMM... well I have one more to add to the list. When Bin Laden was killed I bought a newspaper and have had it displayed @ work. A reminder of 10 years of my life. So when I heard the President was going to be in the area for a speach I called his campaign headquarters in my state and explained being a disabled veteran and being in the military during Sept. 11th. Well I asked if they could ask the president to sign my newspaper (Which is a huge deal for me). They said that they will give the paper to him to be signed and also gave me VIP tickets to his event. So I am walking on clouds right now and so is my fiance. Thank you everyone, and if you are ever in nh stop by Benson Park and view the 911 memorial. My Fiance and I bring the red and white roses every year (one for each year since 911)and put them next to the beam. It is very moving with a very large piece of steel from the world trade center. (I think there is a fb page hudson, nh 911 memorial)
  12. Looking Up!

    To put things into perspective... the previous 2 years before things turned around, I was on the verge of loosing my home, going to soup kitchens for meals, lost my job, Lost a long term relationship, left the military, & disacociated myself from most family and friends. Lessons learned: You are your best advocate for disability claims. Don't give up and focus on a plan to pull everything together. I know it isn't easy by any means but if you have a good plan that attacks multiple problems at the same you will reduce the length of time dealing with pain and frustration. I focused on housing, disability, employment and tsgli all at the same time. I bought some books to try and figure out the VA claims system from Amazon, and Tons of research on Hadit.com. Once a week I would do something (send a letter, evidence,statement, resume,progress check etc.) for one issue and then move on to another the next week. This was would help me focus on each task and help me feel like i was moving forward out of the black hole I was stuck in. Good things can happen but there was a lot of work to make them happen. Never take no for an answer and never compromise/settle. Many thanks for your thoughts, help and support!
  13. Looking Up!

    Hi everyone, In the last year and a half I consider myself very blessed... Approved for 70% disability, Approved for Voc Rehab (Haven't started yet), Approved for TSGLI, Started a steady job and was promoted (VA Call Center), Refinanced the house yesterday, and got engaged. I would like to thank Hadit for helping me get back on my feet and having this great resource available for all vets! My hat is off to all of you!!
  14. Dro Review Works!

    Thank you so much! I know when things seemed bleak reading the success stories was always uplifting for me and I am sure the same for other Vets. Now that I have the decision from the DRO I have to put my VA Form 9 together for the conditions that were not approved. So the clock has started ticking and I have to put something together before the 60 days is up (June 29th). I keep a note with the date at work to remind me every day when I have to get this submitted by. Thank You Everyone and know that this community has so much more meaning than most realize. God Bless, Sox