Cushman V Shenseki

[Berta]

http://www.vawatchdog.org/09/nf09/nfaug09/nf081409-1.htm

A thought on this important case (which Larry Scott suggested every single VA claimant read over)

When the VA fills out a I-8 and authorizes a claim to go to the BVA-I feel the I-8s could be instrumental in an argument over lack of due process that hinder a proper award.

The I-8 form asks the raters specific questions like-

did the veteran receive a VCAA letter?

did the RO consider all evidence of record?

Stuff like that-

and obviously the VA will mark the I-8 check boxes in the most favorable way- regardless of whether they handled the VCAA letter or evidence right in the first place.

Although this is not the same situation as Cushman was in-whereby the VA altered something in his med recs-and he proved it-

isnt a deliberate documented indication that the RO followed the specific steps as outlined in M21-1 for appeal certificate-but they didnt-

a violation of due process as well as violation of established VA case law and regs?

[broncovet]

Berta, I agree that this is a very, important case and should be read by each claimant.

I am very perplexed, tho, as to how this important issue of the VA fraudulently altering the Veterans claim file seems to pass over everyones head.

There is no doubt that the Veterans claim file was modified, fraudulently, but I cant figure out for the life of me why those responsible for altering the claims file were not punished.

The VAOIG investiged the fraud, then dropped the fraud investigation just days after they heard the BVA's response.

IMHO this makes the VAOIG look very, very bad, especially when the 9th court stated that the Veterans file was "fraudulently altered" while the VAOIG investigation concluded there was no fraud.

It sure looks like a coverup by the VAOIG to me..what do you think?

[Berta]

I think the VA OIG is paid by the VA- and that says it all-

The OIG and the OGC blew me off on something I have questioned regarding a mandate that the VA has to uphold regarding FTCA claims.

I put it all on the backburner because I have to deal with the GC or the regional attorney when my award is finally fixed.

Then I will continue the pursuit and maybe this case in some way will help me.

It isnt a claim but something the VA is mandated to do and doesn't do-to the detriment-in my opinion-of all veterans in the VA health care system.

Long story-

Cushman was a relentless fighter over his claim and he was right-

the proper EED for his TDIU was lost when someone altered his VA med recs.

I think I need to shape my complaint about the VA mandate into a FTCA claim but the complaint has no monetary value to me-yet that would get me a denial from OGC that I could appeal in the Federal District Court-

Or I could ask that this situation be submitted into testimony before the H VAC-even the GAO is aware of it- yet nothing has been done about it-

I dont mind being a squeaky wheel-

I just hate getting Greased! :D

[Pete53]

In reality the VA OIG for the most part is just another cog to give the appearance that a Veteran has something to fall back on instead of Congress. Its another way to slow down Congressional Inquiries. Its another way to take the heat off the VA.

[john999]

When the VA ignores important evidence to a claim that is surely a violation of due process. This is what my lawyer in my CUE said. I wonder if this decision could affect my claim since the decision was not in effect when the error was made in my claim? I wonder if this decision could be the basis of a class action lawsuit against the VA? Undue delays, lost evidence, distortions of evidence all seem to be violations of due process. I hope this decision is more than just a whack at claims that were fraudulently alterd. That is a more narrow group of victims. What about a claim where you have three IMO's that the VA just ignores or dismisses out of hand? My gut tells me this is a violation of due process, but the technicalities I am not certain about. VA has proven they can't be trusted without a whip hand to make them behave.

[Hoppy]

I have been pondering a due process issue and how to deal with it lately. The RO has made a determination that directly defies Circuit Court decisions that directed the VA on how to adjudicate claims. I cannot believe that the RO are so stupid. My guess is that the RO’s ignore the circuit court decision and only when it gets appealed to the point that it will go back to the circuit court does the VA get it right. In the mean time the veteran is stuck with years of delays. The problem is then buried in the VA system and nobody knows the RO’s are blowing off the circuit court decisions. I am thinking about ripping off a letter to the clerk of the court and to a Senator.

The Federal Circuit reversed and remanded the CAVC decision. The Court reviewed the legislative history of 38 U.S.C. § 7104(:D, that a claim based upon the same “factual basis”may not be considered unless new and material evidence is submitted. The Court held that a claim’s “factual basis” is the veteran’s disease or injury rather than the symptoms,

[john999]

Individuals inside the VA need to be punished when they violate the vet's due process. There needs to be a legal sanction with teeth to make these people behave. People need to lose their jobs and there need to be fines that individuals have to pay, otherwise they will just laugh at this. How can you punish the VA? By taking money away from the institution? That will hurt veterans.