Us Supreme Court

[broncovet]

Post deleted by author

Edited November 10, 2009 by broncovet

[Testvet]

According to 2 Attorneys at the BVA, as reported by VA watchdog at: http://www.vawatchdog.org/09/nf09/nfnov09/nf110909-3.htm

Veterans have certain rights given to them by the US Supreme Court, that will be nearly impossible to be taken away (it would require an act of Congress).. these rights are, as follows:

The Supreme Court observed that claimants had numerous

rights while pursuing a claim, including the right to a hearing, 30 ex parte

proceedings, with no opposition by a government official,31 assistance

25 38 U.S.C. § 211(a) (1982); see also Walters, 473 U.S. at 307 (the Court, citing to Johnson

v. Robison, 415 U.S. 361 (1974), acknowledged that an exception to the general preclusion

of judicial review was a constitutional challenge).

26 Nat’l Ass’n of Radiation Survivors, 589 F. Supp. at 1305.

27 38 U.S.C. § 3405 (1982).

28 See, e.g., Walters, 473 U.S. at 309; see also The Avalon Project at Yale Law School,

http://www.yale.edu/lawweb/avalon/presiden...ug/lincoln2.htm (last visited Sept. 1, 2008).

29 Walters, 473 U.S. at 309.

30 38 C.F.R. § 3.103© (1984).

31 Id. § 3.103(a).

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by the rating board in developing facts pertinent to the claim,32 and

consideration of all evidence offered by the claimant.33 Further, the

Supreme Court pointed out that all reasonable doubts had to be resolved

in favor of the claimant.34 Finally, the Supreme Court observed that BVA

hearings were subject to the same rules as local agency hearings and

were likewise ex parte, with no formal questioning or cross examination,

and no formal rules of evidence applying.35

The Supreme Court concluded that the process was designed to

function throughout with a high degree of informality and solicitude for

the claimant. In this regard, the Court noted that there was no statute

of limitations, denials had no res judicata effect, and claimants had a

“quite liberal” time period of up to a year to challenge determinations.36

The Supreme Court added, “[p]erhaps more importantly for present

purposes, however, various veterans’ organizations across the country

make available trained service agents, free of charge, to assist claimants

in developing and presenting their claims.”37 Indeed, the Supreme Court

commented that veterans’ service organizations were recognized as an

important part of the administrative scheme.38

The Supreme Court noted the district court’s finding that, absent

expert legal counsel, claimants “ran a significant risk” of forfeiting

their rights because of the highly complex issues involved in some

cases.39 The Supreme Court also cited the district court’s conclusion

that claimants were simply not equipped to engage in the factual or legal

development necessary in some cases.40 The Supreme Court questioned,

32 Id.

33 Id. § 3.103(:).

34 Id. § 3.102.

35 Id. § 19.157.

36 Walters, 473 U.S. at 311.

37 Id.; see also 38 U.S.C. § 3402 (1982).

38 Walters, 473 U.S. at 311-12 (citing VA statistics showing that, at the time, 86 percent of

claimants before VA were represented by service representatives, 12 percent proceeded pro

se, and 2 percent were represented by attorneys).

39 Id. at 313.

40 Id. at 314 (suggesting these might include cases were the disability was slow to develop

and “therefore difficult to find service connected, such as the claims associated with

exposure to radiation or harmful chemicals as well as other cases…involving difficult

matters of medical judgment.”).

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40 Id. at 314 (suggesting these might include cases were the disability was slow to develop

and “therefore difficult to find service connected, such as the claims associated with

exposure to radiation or harmful chemicals as well as other cases…involving difficult

matters of medical judgment.”).

The problem with these type of cases is to get the VARO to even address the facts of exposure, they usually stonewall the claims and even the attornies do not want to get into these type of claims due to the difficulty of dealing with classified government projects such as the nuclear tests, the chemical weapons and drug testing, and biological experiments and then due to "feres" the courts won't even address the claims stating that any harm caused during military service cannot be addressed in lawsuits to the government, I do beleive that is one of the reasons that the attorney for the Edgewood veterans is explicitly not asking for any monetary damages rather just to force the military to comply with the promises made to the soldiers the court so far has been far from friendly to veterans when it comes to dealing with the government....just my 2 cents

[sixthscents]

OK Broncovet, you have hammered this topic into other topics again and again citing the same point. We get it, it just dosen't get followed by the VA very much, and when you point it out to them you can expect a series of appeals. Now thats fine vets should appeal decision where the benefit of the doubt was not granted to them...

Here's the problem though. I am getting kind of tired of you harping this same point again and again through countless other topics. Sure "benefit of doubt", sure we've all read the pertinent reg, since you seem insistent upon posting it again and again ...

Now, stop... if there is no DIRECT connection between the question being asked and this issue quit posting it into these other topics, further you have started 2 topics today with this as the theme. Thats enough. I'll leave these open, but dont open any more any time soon. Give it a rest guy, we all get the point.

Bob Smith