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Letters To Senators


rogus

Question

I have recently finished emailing every democrat senator with the following letter. If we as veterans want our day in a real court we need to do something about it. This is a start. If anyone would care to help me send copies of this letter(or one like it) to members of the house I woud appreciate all the help I can get.

Thank you.

(Mad as hell and not going to take it ANYMORE!)

To the Honorable ,

I am writing to you because I believe that you truly care about United States veterans and their struggles with the Department of the Veterans Affairs.

As you are probably aware according to a Knight Ridder news service story 17% of veterans die prior to having their benefit claims resolved. As veterans we have become second class citizens due to the 1933 Economy Act (H.R. 2820 – now Title 38 USC 211) which legally bars veterans from meaningful judicial review and closes all judicial branch, Article III, and U.S. District Courts to veterans.

38 USC 211

"All decisions rendered by the Administrator of Veterans' Affairs under the provisions of this title, or the regulations issued pursuant thereto, shall be final and conclusive on all questions of law and fact, and NO OTHER OFFICIAL or COURT OF THE UNITED STATES shall have jurisdiction to review by mandamus or otherwise any such decision."

Although there is a “Special” Court of Veterans Appeals read the words of former Chief Judge Frank Q. Nebeker (1994, State of the Court) :

“…the Court’s operation has demonstrated that that there is a vast gap between the theory and practice of judicial review and it is that gap which appears to be frustrating the original intent behind enactment of VJRA and the implementation of the goals of meaningful judicial review”

“Neither the Court, through the Board, the Board, nor the General Counsel has direct and meaningful control over the Agencies of Original Jurisdiction (VA Regional Offices).”

“Too many of the Court's precedent opinions must focus on law clearly stated in statutes or regulations but ignored below. Indeed, the rate of adjudication error is far too high for a healthy system. Most importantly, though, those opinions should serve to guide future adjudications of similar cases. Why permit the initial adjudicators to ignore those decisions simply because their operational head ignores them and doesn't issue directives and provide training to follow them?”

“Many ROs appear to do what they think they must when they get around to it. In fact, recent examples show that attorneys on the General Counsel's staff, too, have little leverage to require cooperation when they attempt to obtain information concerning cases, so they can meet their obligations as the Secretary's attorneys to report the status of a particular case to the Court. The attitude in at least some of the RO’s seems to be "I don't care what the Court says the law is; I care only what my boss says it is."

In fact ABC – 20/20 News (Fighting For Justice, June 2, 2000) reported Board of Veterans Appeals (BVA) members actually destroyed veterans’ files and records to deny veterans appeals in the hopes of substantial cash bonuses from the VA. And that at the time of the report the Court of Veterans Appeals had only ruled in favor of the veteran 18 times out of 14,000 cases.

Such actions continue to this day, however even if a veteran were able to have his case heard in court the scales are still weighted against him/her due to the following court case:

"Pensions, COMPENSATION ALLOWANCES, HOSPITAL, and other privileges . . . are GRATUITIES. They involve no agreement of parties; and the grant of them creates no vested right. The benefits conferred by gratuities may be redistributed or withdrawn at any time in the discretion of Congress." (See Lynch V. United States, 292 U.S. 571, 577 (1934)

It is also interesting to note that during 1934, the Supreme Court had perceived the rights of America's battle-injured defenders, in a different light, and accordingly determined that it was the INTENT of the United States Congress, that VA medical care treating war injuries, VA disability compensation concerning war injuries, and all other veterans' non-contractual "benefits", have the legal significance of nothing more than GRATUITIES (GIFTS).

As such, veterans have no recourse when we must sell our possessions and homes while awaiting a decision from a governmental agency that operates under complete autonomy and separation from true judicial review of its actions. We lack even the basic rights that are constitutionally guaranteed criminals.

Therefore I am requesting your help for all veterans throughout America to repeal or amend 38 USC 211 and to congressionally redefine veterans’ benefits as being benefits earned through service to our country.

Sincerely,

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Guest jstacy

Great Letter, I would however lay off the Acronyms for most of the Senators are attorneys and Probally would not Know the difference between CPR and a CPA.

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Guest morgan

rogus,

This is an excellent letter. I would be happy to help you send this. As far as acronyms, I must have missed them. The abbreviations you included seem to me to be those the politicians would recognize right away.

If we could rouse as many veterans and supporters as the illegal immigrants march did, we would affect a change!

A picture is worth a thousand words...I don't think I'll ever forget the images of the masses in the streets.

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morgan - Thank you for your help. I am hoping that I cant get someone from all 50 States to help out whereas certain senators won't respond to emails sent from from out of state.

I do believe that if we can keep throwing this up into their faces they are going to have to answer.

By the way if you want to send letters to newspapers there is an easy way to do it.

Both the DNC and RNC websites have a web service that will forward your letter up 5 newspapers within your state. Although these are intended for people to use to send Congresses prepared msg's there is no reason we can't use them to send out whatever message we want. I've tried it - it works.

For Democrats;

http://www.democrats.org

For Republicans

http://www.rnc.org/

Also there is a site called Congress.org Soapbox. It will send your emails automatically to congressmen and Senators accroding to whatever zip code you put in.

Here is a link: http://capwiz.com/congressorg/sbx/f/?aid=8821241&r=1

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Rogus...

I TO am corresponding to my congressional office regarding Veterans affairs. You listed something that affects all of us, and I've been banging my head trying to figure out how to scare the VA by suing them directly, and being removed from the roles! I'd rather deal with my own affairs, and deal with compitent drs, than deal with some of the quacks that the GOOBERment hires.

Additionally, I have included a ROUGH DRAFT that I just comprised today. I STILL have a lot to do to this...again, it's a ROUGH DRAFT!

Question is, ARE WE STARTING A TREND HERE? Let's hope so! We're ALL sick and tired of the crap. My letter effects ALL of us, and should make for some interesting reading. Folks, PLEASE ADD some constructive ideas...Enjoy!

Problems with the VA system

The primary problem with the Veterans Administration, is the fact that the employee has to meet a Quota. This quota, or so many claims resolved within a certain length of time, gives creedence to many issues/evidence missed or overlooked by the Adjudicators or Fact Finders.

I've witnessed this sort of missed evidence myself, when I asked for an Administrative Review and my folder remained at that particular location. An Administrative Review, is similar to a Judicial Review, which is an independent board that reviews the claim de novo, and, in it's entirety, to make sure the claim w/evidence was reviewed, and the law properly applied. In short, to see if the RO did it's job efficiently.

Another example was that I had mentioned that under NO CIRCUMSTANCES will anyone correspond to RO 318, being that we are involved with an EEOC (now District Court) matter. My file was transferred to the same RO. Whether it was MISSED or DELIBERATE, I don't know! But it's at the same RO! I will suspect that my claim will "Drag On" in Retaliation to my presentation of my case to the Federal District Court.

So, it goes to show you that people are concentrating more on the QUOTA, rather than the Veteran's

issue(s). When the quota is met, or it exceeds other RO's, the employees at these RO's are awarded a cash bonus.

When you look at that though, is the Veteran getting a fair shake, OR is the adjudicator concentrating more on his/her bonus?

The DENYING of claims that should be APPROVED, clearly displays yet another dilemma for the VA...

The Veteran appealing his claim.

The VA requires additional (New & Material) evidence so that they can resolve the issues at hand, however, if the Veteran disclosed all that he had in his original correspondance, and he has no additional evidence, he has a snowballs chance in hell to get his claim approved. He then get's caught up in a loop, of constant appeals. This involves Supplemental Statements of the Case & Statements of the Case, which to an inexperienced Veteran, can at times, be overwhelming.

Again, this has happened to me personally.

It's a well known fact that some Veterans DIE prior to their claim getting resolved.

Again, it's all due to the quota system, the lack of attention to detail, and a lack of personnel.

Another dilemma is the claims with multiple issues, requiring numerous exhibits submitted by claimant.

Most of the time, fact finders will NOT review a file of this sort, if it's to cumbersome. Reason being...

The QUOTA SYSTEM! So many claims by so much time...! In order for a fact finder to keep their job, they must meet the Quota or face disciplinary action, Demotion, or even TERMINATION (as I have).

The VA is a massive disorganized system!

Above, I had mentioned some of the reasons that a Veterans claim is denied. Those hundreds of thousands of claims throughout the US are now in an appeal mode. WHY...because a quarter to half of them were decided upon by a fact finder, when he/she didn't review it in it's entirety to begin with. This lack of attention is a GROSS WASTE OF FUNDS, and causes undue stress to the Veterans. It is ALSO considered as a GROSS MISMANAGEMENT of Veterans Claims.

This WHOLE appeals process MUST BE revamped!

I've had the Roanoke RO send me a letter asking me if I wanted a hearing. I had mentioned YES, and at their RO PROVIDING that they possess a Videoteleconference system. Winston Salem would be considered as a second choice IF Roanoke DID NOT have the facilities to accommodate. I was asked that same question on a FEW ocassions, AGAIN, supporting my claim to the Lack of Attention to Detail!

The VA QUAGMIRE is based on numerous files on appeal, in a recirculatory manner! In addition, you have NEW claims created daily, thus QUAGMIRE.

ALL, based on the QUOTA SYSTEM to meet numbers per Month, quarter, and even year!

Seeing a Doctor through the VA system.

This is a NIGHTMARE! A Veteran has to wait a MINIMUM of SIX months to see a doctor. This is an eternity for those with painful ailments. To make matters worse, the doctor OR MY "Primary Care Physician" has a GENERAL knowledge of my ailments, and I have to be referred to another doctor (six + months later)! That's a total of a YEAR!!!

MY Primary Care Physician is an Internal Medicine doctor...I have ORTHOPEDIC ailments!

I propose the following...

Eliminate the QUOTA SYSTEM, being that it distracts the fact finders from their job.

Eliminate the Bonus pay for Quota's met, and ONLY award those who present accurate results (Yea or Nay).

Eliminate the constant "Pot Lucks" organized by employees (YES, they're frequent).

Eliminate the Overtime.

HIRE more people to establish a Second Shift, to PROMPTLY & ACCURATELY resolve Veteran issues.

HIRE more Medical Interns from Local Universities that have different specialties.

START a second shift to "Catch Up" on Veterans Claims. These people can be hired on a TERM Appointment, as stipulated under 5 CFR 316.301 or TEMPORARY as per 5 CFR 316.401.

START the VA under a Paperless Office, and allow the freeing up of real estate, so that more employees can be hired.

The questions I have...

When a Veteran is discharged, is the VA OBLIGATED to assist the Veteran? If so, what LAW stipulates this?

If they FAIL to meet their Obligation, is their Legal Recoarse? If so, under what Jurisdiction?

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Hollywood

Othopedists are sort of the superstars of medicine in many regards. It is very hard to see an orthopedist at a VA hospital. The one I saw did nothing for me. He was retired from private practice. I knew him when he was a real doctor. I have orthopedic problems and the VA is the last place I would go for treatment for those problems. I use my insurance and medicare to see doctors on the outside. I don't see why I should have to do this but unless I want to wait for months that is what I do. I am doing PT on the outside now. Everything you say about the VA is true only more so.

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Hollywood - You can't sue the VA directly untill the 1933 EconomyAct is overturned. HOWEVER at the end of the month I plan to contact the ACLU (after all veterans are a minority) and see if they will challenge that law on the basis the it denies DUE PROCESS OF LAW. Which is HOW the VA gets away with screwing veterans.

Anyone who would like to support that actiion please let me know at : rogusbunny@yahoo.com

In the meantime if I have any documents you might need to help support your case I will be glad to send them.

Oh, by the way the passage of the H.R. 2528 (SECTION 222,223) MAKES IT ILLEGAL FOR THE VA TO CONTINUE DENYING SERVICE CONNECTION OR REDUCED RATINGS FOR THOSE AFFECTED BY THE PTSD WITCH HUNT THAT WAS CONDUCTED LAST YEAR.

Hollywood here are some documents by the AFGE (the union that represents VA workers) that may help your case. To summarize in their own words:

(“Individual veterans and Veterans Service Organizations as a whole should have NO CONFIDENCE IN RECIEVING … AN EQUITABLE RATING DECISION…”)

Remember - it's one thing for us as veterans to say were getting screwed but legally it's something else totally when this testimony is to congress by the VA employees.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Affiliated with the AFL-CIO

Local #2823

P.O. BOX 99511

CLEVELAND, OHIO 44199

Phone (216) 522-3530, ext 3021

Fax # (216) 522-2484

The effect of Dingess/Hartman v. Nicholson on day to day VBA operations.

A fundamental practical problem was that VA was summarily denying meritorious cases as “Not well grounded” in order to meet unrealistic production numbers.

1) VA leadership fails to understand the basic nature of due process guaranteed to every citizen or is purposefully circumventing due process requirements in the name of administrative expediency.

2) The rating board will be instructed to rate the case and then it will be incumbent on the veteran to appeal, not the secretary to cure the pre-decisional defect by doing the case right to begin with.

3) Appeals cases are referred to by VA senior leadership as a “non-entity”.

4) In essence, those veterans have had their procedural due process PURPOSEFULLY IGNORED so that the secretary could report to Congress a higher number of cases completed. So much for no one left behind or every citizen being given due process under law.

In summary, the effect of the Dingess/ Hartman decision, and more importantly the VA’s response, illustrates the fundamental way the VA fails to understand the nature of the constitution, due process and the guarantees afforded to every citizen. In short, the VA is screwing every veteran out of the rights that they have shed blood to uphold, so that they can fraudulently report that ‘claims processing is improving.’

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Affiliated with the AFL-CIO

Local #2823

P.O. BOX 99511

CLEVELAND, OHIO 44199

Phone (216) 522-3530, ext 3021

Fax # (216) 522-2484

October 31, 2005

The Honorable Lane Evans

Ranking Democratic Member

Committee on Veterans Affairs

House of Representatives

Or the more sinister method is pressure the RVSR's to rate the claim based on flawed medical evidence and let the veteran appeal the decision. This reduces the overall inventory quickly and places the affirmative burden on the veteran to appeal.

RVSR's are pressured to rate a case based solely on production or current regional office requirements. This masks cases that should have been returned as inadequate for a technically correct or affirmative statement by the medical examiner. The end result of this policy is usually detrimental to the veteran. Example 2, RVSR's have been strongly encouraged to send a case back informally first, highlighting the errors, without formal recording of the error.

Quantity produced by each regional office vastly outweighs the quality requirement in performance measurement. By the provisions of CPI, the appropriately trained employee’s are not ordering the initial VA exam. The lesser trained employee’s have little incentive to get it right because the process foists the results of a poor exam to the RVSR. This provides a condition known in economics as a "market failure" and sends the entire claims process into a downward spiral of completing claims that are fundamentally flawed and letting the veteran get frustrated, appeal the flawed decision and filing new claims.

It has been an often repeated inventory reduction tactic by VA managers and supervisors articulated to VBA employee’s as ‘just get the claim done and let the veteran appeal’, knowing full well that the decision is flawed under law, regulation and internal policy. It is an often repeated statement that less than 10% of veterans appeal their decision therefore just getting the claim done by hook or crook has little negative impact on the agency in reporting its annual performance. Instead, VA policy makers boast about the number of claims completed, regardless of due process errors.

This creates undue pressure on the RVSR to get cases done whether they are correct or not in order to maintain employment. Management purposely plays on this issue to get cases out the door and subdue employees who placed legal accuracy and quality over quantity

While the affirmative duty to develop a claim correctly is on the Department of Veterans Affairs and individual DRO’s, RVSR's and VSR's, should that not occur, the current case law reflects the veteran is out of luck if he does not appeal. Therefore, the Department of Veterans Affairs incurs no liability for faulty claims development outside of the appeal period.

Individual veterans and Veterans Service Organizations as a whole should have no confidence in receiving a technically correct, legally accurate, and an equitable rating decision when the entire system contains institutionalized, unaddressed fundamental flaws in applying Due Process under law.

Each discrete decision by every decision maker on an individual veterans claim, is pressured by the Department of Veterans Affairs, management-emphasis on quantity over quality. Without the careful step-by-step analysis of the workflow as it relates to Due Process under law, the Department of Veterans Affairs will never be able to provide fundamentally correct initial decisions to a high a majority of veterans, or reduce its pending claims inventory.

Somehow the entire copy of this letter did not copy over. Will repost.

“Individual veterans and Veterans Service Organizations as a whole should have NO CONFIDENCE IN RECIEVING … AN EQUITABLE RATING DECISION…”

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Hollywood Here is the missing text:

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Affiliated with the AFL-CIO

Local #2823

P.O. BOX 99511

CLEVELAND, OHIO 44199

Phone (216) 522-3530, ext 3021

Fax # (216) 522-2484

October 31, 2005

The Honorable Lane Evans

Ranking Democratic Member

Committee on Veterans Affairs

House of Representatives

Dear Mr. Evans:

I've recently read GAO report 06-46 which illustrates the VA's attempt to address a narrow but significant failure in the overall claims process, namely addressing the Deluca requirements in how VBA (Veterans Benefits Administration) orders medical exams from VHA facilities and VHA (Veterans Health Administration) medical exam processing. The GAO report appears to be a balanced summary of the Department of Veterans Affairs actions in response to the Court Decision in Deluca. However, the report does not address the fundamental policy failures and individual difficulties encountered to truly request and provide a good VA exam. The purpose of this letter is to address fundamental flaws in the claims decision-making process which were either unavailable to the GAO or not addressed in the GAO report.

Terminology:

Deluca v. Brown, 8 Vet. App. 202 (1995): Held that medical evidence was necessary to determine the extent of a disability to include functional loss due to pain or flair ups.

VCAA: Veterans Claims Assistance Act of 2000. Fundamentally changed the burden of developing the evidence of a claim to the VA prior to a decision to include ordering a VA exam if necessary to decide the claim. Formerly, the veteran had the burden of providing a medical opinion as to the cause and extent of his/ her disability.

CPI: Claims Process Improvement. Work flow model that divides VA Regional Office Employees in the Veterans Service Center into 5 functional teams. For the narrow purpose of this letter, the model incorporates significant work flow changes to lower graded employees to make determinations of the applicability of Deluca and VCAA to each veteran’s claim.

DRO: Decision Review Officer. A GS 13 graded employee who has denovo authority over a first level appeal on a disability claim.

RVSR: Rating Veteran’s Service Representative also known as a Rating Specialist. A GS 12 graded employee who reviews and decides a veteran’s disability claim based on the evidence of record.

VSR: Veteran’s Services Representative. Primarily a GS 10 graded employee who inputs the veterans claim, assembles the evidence of record and forwards the developed claim to the appropriate decision maker.

Specific points:

1) VA policymakers have repeatedly stated political goals of reducing the claims backlog. Yet per GAO 05-47, they have been unable to articulate and justify staffing levels or articulate projections based on workload and claims complexity. If the VA cannot justify to Congress its budget, based on workload and claims complexity, it cannot reasonably make policy decisions and expect the down stream end result to be an accurate decision on a disability claim.

2) Since 2002 CPI has been fully implemented. In large part, CPI calls for VSR's to review the claim and determine a) whether the veteran is entitled to exam and B) which examine to order. (Some authority to deviate from this has been recently extended to the Regional Offices.)

3) This plan is inherently faulty on multiple levels. It assumes VSR’s have an in-depth understanding of medical terminology and body systems. It assumes VSR’s are trained in and understand the Rating Schedule and 38 CFR part Three to determine the presupposing medical question to be presented on an exam if one is called for in either a claim for service connection or a claim for increased evaluation of the condition. Example 1) Veteran has a single incident of an acute back injury in-service. Ten years later he files an original claim for this condition with possible intervening post service injuries, examine or not? Example 2) If the veteran had intervening injuries post service, what exam question or questions do you ask of the examiner? Especially for example number two, only the RVSR is properly trained and can formulate a theory of the case and theory of entitlement to properly ask the question of the VA examiner based on the assembled evidence By assigning the exam ordering role to VSR’s, CPI fails to have the appropriate focus on quality at the initial stages of a claim and can send the claim down a completely inappropriate theory of entitlement path and frequently causes substantial rework of the claim.

4) Training at VA Regional Offices is haphazard at best. Satellite broadcasts and training presented by Central Office is not mandatory for all decision-makers. Further, different categories of workers will receive different types of training on the same issue and training that is inconsistent with training previously provided. Example, RVSR's may be provided one set of rules or guidelines during internal training, VSR’s who order exams will be given another set of guidelines or rules on the same issue by Central Office satellite broadcast. Both groups are not on the same page and an exam may have to be sent back as inadequate adding unnecessary delay based on the disparity of training. I have read the notarized press briefing of Secretary Nicholson, Mr. Griffin, VAIG, and DUSB Cooper. I'm particularly troubled by the statements beginning on page 21 line 2 and on page 49 line 22 by DUSB Cooper: “ We have, and will continue, to emphasize oversight and training – two things are absolutely paramount in order to take care of problems like this." And " But again, even my raters are people. And so we try to train them and train them and train them. We try to get experience, keep that experience, and move on.", respectively. The alleged training that DUSB Cooper relates, is in no way reflective of what actually happens in the majority of regional offices which I have knowledge about.

5) VSR’s have a tremendously import function in appropriately assembling and developing the evidence of record prior to a decision. In general, placing the additional function of crafting an exam request is beyond reasonable with the other duties they are expected to perform. Based on their already important and heavy work load, the majority of VSR's tend to rely on exam templates by rote and fail to understand the critical importance of identifying the exact medical condition in order to formulate the legal/medical question necessary to make a determination on the claim or condition. Further, in order to pose the necessary question to the examiner, at least one theory of entitlement must be presupposed in order to correctly articulate the exam question. Failure to presuppose an appropriate theory of entitlement inherently leads to a flawed Rating Decision or necessitates a new exam asking the correct question, which delays the claim and increases the overall workload. Or the more sinister method is pressure the RVSR's to rate the claim based on flawed medical evidence and let the veteran appeal the decision. This reduces the overall inventory quickly and places the affirmative burden on the veteran to appeal.

6) VHA's "fully successful" exam performance of 64% for 2005, still means that more than one third of all exams are inadequate for rating purposes. This number was reportedly met in third-quarter 2005. However, the overall result is far worse than reflected even by this low and poor performance goal. Example 1, RVSR's are pressured to rate a case based solely on production or current regional office requirements. This masks cases that should have been returned as inadequate for a technically correct or affirmative statement by the medical examiner. The end result of this policy is usually detrimental to the veteran. Example 2, RVSR's have been strongly encouraged to send a case back informally first, highlighting the errors, without formal recording of the error.

7) VHA has failed to take affirmative action on exam providers who make repeated errors so that the vast majority of all exams that they provide are inadequate for rating purposes. This leads to either a) RVSR's to "give up" in trying to fix the case and creating a rating decision based on inadequate evidence provided by the examiner or B) the RVSR sending back an unusually high number of inadequate exams to where he gets his supervisor's attention and the attention of the medical center for making them look bad.

8) Deficiency in regional office exam requests stems from one primary issue. Quantity produced by each regional office vastly outweighs the quality requirement in performance measurement. By the provisions of CPI, the appropriately trained employee’s are not ordering the initial VA exam. The lesser trained employee’s have little incentive to get it right because the process foists the results of a poor exam to the RVSR. This provides a condition known in economics as a "market failure" and sends the entire claims process into a downward spiral of completing claims that are fundamentally flawed and letting the veteran get frustrated, appeal the flawed decision and filing new claims. It has been an often repeated inventory reduction tactic by VA managers and supervisors articulated to VBA employee’s as ‘just get the claim done and let the veteran appeal’, knowing full well that the decision is flawed under law, regulation and internal policy. It is an often repeated statement that less than 10% of veterans appeal their decision therefore just getting the claim done by hook or crook has little negative impact on the agency in reporting its annual performance. Instead, VA policy makers boast about the number of claims completed, regardless of due process errors.

9) For decision-makers, DRO’s and RVSR's, the difficulty in the work lies in reviewing the evidence, presupposing a theory or several theories of entitlement, determining if a medical opinion or evaluation is necessary, applying the aforementioned to the appropriate statutes and regulations and writing a decision that is technically correct and understandable to the lay veteran. RVSR's only receive "production points" based on the number of decisions they write. No points are earned for review of the case and return the case to others for additional directed development. Or, reviewing the case and determining that an exam is still necessary when one was previously completed or determining that the exam completed is inadequate. While the rating specialist does not receive work credit for this, he or she is responsible for the quality and technical correctness of the entire decision. Should one link in the chain break, the entire resulting decision on the veteran’s disability decision is likely flawed. This creates undue pressure on the RVSR to get cases done whether they are correct or not in order to maintain employment. Management purposely plays on this issue to get cases out the door and subdue employees who placed legal accuracy and quality over quantity. This is reflected in that the electronic system used to record an individual employee’s production, currently ASPEN and formerly PROSTAR as they have no provision for recording and weighing additional actions other than an actual rating decision. Essentially, those actions are considered too minimal to report and have a weight assigned, according to VA policymakers. This further obscures the substantial rework necessary to provide full Due Process rights to our veteran’s and their claims.

10) The Veterans Claims Assistance Act of 2000, also known as VCAA was codified under 38 USC 5103A and implemented under 38 CFR 3.159 (2001). This act placed the affirmative duty on the Department of Veterans Affairs to fully develop each claim, unless the claim meets certain very minimal procedural requirements, such as the veteran failing to provide the certain minimal information or if the claim is inherently incredible such as; if the veteran claimed a service connected disability due to interstellar travel. While the affirmative duty to develop a claim correctly is on the Department of Veterans Affairs and individual DRO’s, RVSR's and VSR's, should that not occur, the current case law reflects the veteran is out of luck if he does not appeal. Therefore, the Department of Veterans Affairs incurs no liability for faulty claims development outside of the appeal period.

11) Individual veterans and Veterans Service Organizations as a whole should have no confidence in receiving a technically correct, legally accurate, and an equitable rating decision when the entire system contains institutionalized, unaddressed fundamental flaws in applying Due Process under law. The main recourse of VA policy makers is to place the affirmative duty on the veteran to appeal his or her individual claim. While VA policy makers lament a veterans seemingly inexhaustible appeal rights, they fail to address how their policies and decisions do nothing but further the veterans reason and likelihood to appeal. Namely, some component of the decision is very likely fundamentally flawed and the flaw will not be corrected without the veterans appeal or multiple appeals.

12) Unfortunately, the end result is that the individual VBA employee is held accountable by supervisors for quality of work and local supervisors are held accountable by VBA policy makers for quantity produced as the entire claims process is geared to getting cases completed by hook or crook. This leads to great employee dissatisfaction, adverse employment actions and a general disgust by Regional Office employees and supervisors in the method of operation of the VBA in providing a quality decision on veteran’s benefits.

Conclusion:

The veteran’s claims decision-making process is fundamentally flawed without correct VA exams. The current system of ordering exams and measuring quality is a slight improvement, but fails to address the fundamental underlying problems such as the inverse relationship between quantity and quality, training, workflow and which employees or category of employees are capable of, or should do the assigned work. Each discrete decision by every decision maker on an individual veterans claim, is pressured by the Department of Veterans Affairs, management-emphasis on quantity over quality. Without the careful step-by-step analysis of the workflow as it relates to Due Process under law, the Department of Veterans Affairs will never be able to provide fundamentally correct initial decisions to a high a majority of veterans, or reduce its pending claims inventory.

Suggestions for improvement:

1) Eliminate VBA's quantity above all else mantra.

2) Realign VBA's top priority to: a) individual decision quality (adherence to law) & B) individual decision timeliness.

3) Complete a longitudinal detailed workload analysis of the entire decision-making process by policy makers who understand the implementation of due process under law, not widgets on an assembly line.

4) Use the workload analysis to design an equitable performance standard for all VBA employee’s so that each discrete mandatory act necessary to produce an environment where legally and equitably correct claims decision are fostered.

Again, I offer this letter as informative of what I see going on behind the scenes and urge you to take the necessary actions in Congress to properly serve both the veteran in gaining all benefits entitled to under law and the taxpayer so that his or her tax dollars are well spent.

If you need additional information, please contact AFGE Local 2823, we will be glad to assist you.

Respectfully,

Joel Waldman, President

AFGE Local 2823

VA Regional Office, Cleveland

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Hollywood - Here's the rest of it:

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

Affiliated with the AFL-CIO

Local #2823

P.O. BOX 99511

CLEVELAND, OHIO 44199

Phone (216) 522-3530, ext 3021

Fax # (216) 522-2484

The effect of Dingess/Hartman v. Nicholson on day to day VBA operations.

We have put this brief together quickly so that AFGE can understand the issues and difficulties presented by the Dingess/ Hartman v. Nicholson, decision on VBA employee’s.

On March 3, 2006 the United States Court of Appeals for Veterans Claims (CAVC) issued a decision based on a remand from the US Court of Appeals for the Federal Circuit. In Dingess/ Hartman v. Nicholson, No. 01-1917 CAVC held that: 1) 38 USC § 5103(a) requires predecisional notice to a claimant of how a claim for a service-connected injury he be substantiated. 2) The predecisional notice must contain information on how the five elements of the claim may be substantiated. (Formerly three elements of the claim) The court also provided dicta as to the rule of prejudicial error

Rules:

Veterans Claims Assistance Act of 2000 (VCAA) P.L. 106 -- 475 November 9, 2000.: This Law fundamentally changed the burden of developing a claim for service-connected disability to the VA instead of the veteran. This law was passed by Congress to specifically void the opinion in Morton v. West.

Morton V. West: Held that the VA had no duty to assist a claimant in pursuing a case that was "not well grounded". A fundamental practical problem was that VA was summarily denying meritorious cases as “Not well grounded” in order to meet unrealistic production numbers.

38 USC 5103A: Is the statute associated with VCAA. Inferior to the PL but superior to the CFR in legal authority.

38 CFR 3.159 (2001): Is the Code of Federal Regulations governing VA’s Duty to Assist claimants pursuant to VCAA. This is broken into four distinct parts: a) Definitions. B) Duty to Notify. C) Duty to Assist. D) Duty to refrain from assisting. The CAVC’s decision primarily deals with the Duty to Notify requirement.

Due Process: 1) a course of formal proceedings carried out regularly, fairly, and in accordance with established rules and principles, 2) “Freedom from arbitrary adjudicative procedures is a substantive element of ones liberty”

The overall schema of the VA's Duty to Assist veterans.

In accordance with VCAA and the subordinate USC and CFR, the Department of Veterans Affairs has the duty to assist a veteran in any claim under any law administered by the Secretary.

Upon receiving a substantially complete claim, the VA is obligated to notify the veteran of the elements required to substantiate his/her claim. Further, the VA has the affirmative Duty to Assist the veteran in gathering all evidence in possession of the federal government that the veteran identifies is necessary to his claim. The Duty to Notify and the Duty to Assist are distinct and separate and are best considered as links in a chain. Once the veteran is properly notified of all the elements required to substantiate his claim and given an opportunity respond, the VA proceeds with its Duty to Assist in substantiating the claim based on the information provided by the veteran.

Prior to the Hartman decision, the three elements considered necessary to substantiate claims were: 1) Whether an injury or an event incurred in service. 2) Whether a present disability exists. 3) Is there a nexus between the injury or in event that occurred in service and the present disability. These elements are required to be communicated to the veteran upon receipt of his initial claim, in the VA’s Duty to Notify requirement, prior to any assistance being rendered or any decision on the claim being made.

The Dingess/Hartman decision held that existing case law consists of the five following elements: 1) veteran status 2) existence of the disability 3) a connection between the veterans service and the disability. Additionally 4) degree of disability and 5) effective date of the disability. The VA has the duty to notify the veteran of all five elements prior to any assistance being rendered. The thinking is; The veteran must identify what evidence/ records he believes is pertinent to his claim in order to trigger the VA’s Duty to Assist. But unless he is notified of the types of evidence that may be pertinent to his claim he cannot knowingly and intelligently identify what evidence needs to be obtained. Failure of the VA to properly notify the veteran in advance of these requirements can be prejudicial error.

In addition to thinking of each discrete element as a link in a chain, it is also helpful for individuals without formal legal training to think of the Miranda rights associated with criminal law. Based on the courts decision in Miranda, a person charged with a crime, must be notified by the government that any statements made to the government can and will be used against him in a court of law. Here, just like Miranda the government has a mandatory obligation of the Duty to Notify the veteran prior to any subsequent action. If that Duty to Notify fails, just like in Miranda, any subsequent action will fail. Further, any citizen expects that if the government wished to search the citizens home that the government is obligated to get a search warrant. The purpose of the warrant is to identify the information sought and insure the government has at least a reasonable suspicion it its actions. In essence, notifying the citizen of the elements of the charges against him, so that the citizen may intelligently respond.

In sum, the Dingess/Hartman case is about the VA’s failure to correctly notify the veteran of the elements required to substantiate his or her claim. Essentially, identifying a pre-decisional notification failure. As that element of the case or chain of events fails, so does any subsequent decision.

The secretary's response to the holding in this case fails to understand the very nature of pre-decisional notification to the veteran. The secretary's response is to do the following: 1) continue making procedurally flawed decisions. 2) attempt to fix the pre-decisional notification failure with a post decisional cure letter. 3) certain cases will not get any post-decisional cure letters and the VA will not make any attempts to fix those cases unless the Veteran Appeals or submits new evidence. In short, the Secretary’s decision fails to provide the veteran/citizen minimal procedural due process at every stage.

What this means for AFGE:

1) VA leadership fails to understand the basic nature of due process guaranteed to every citizen or is purposefully circumventing due process requirements in the name of administrative expediency.

2) The decisions made by VA leadership in an attempt to cure the pre-decisional notification defect fails to meet the notification requirement under VCAA, 38 USC 5103A and 38 CFR 3.159 (2001) as such is setting itself up for another major defeat in the court.

3) Veterans in general, will not understand the post decisional cure letter, which the VA will likely do poorly. Hence more angry/frustrated veterans and more appeals.

4) More angry veterans means more difficult public contact when the vet calls in. Given the reported 3 minute constraint that VSR’s have on phone calls the vet, will likely go away more angry.

5) More angry vets = a VA employee who feels “beaten up” when they get on the phones.

6) The more beaten up an employee feels by both the Vet and the supervisor the less likely it will be that the employee is motivated to do good work- as the system is set up to fail.

7) Claims referred to the rating board under the Secretary’s plan will all be procedurally deficient. The rating board will be instructed to rate the case and then it will be incumbent on the veteran to appeal, not the secretary to cure the pre-decisional defect by doing the case right to begin with.

8) The increase in appeals cases will be used to hide the overall pending “Rating Inventory” as appeal cases are not reported in “Rating Inventory”. Appeals cases are referred to by VA senior leadership as a “non-entity”.

9) The effects of the Secretary’s action will very likely lead to another category of exceptional cases. Which leads to an overall increase in the level of difficulty to complete EVERY CASE. Because now the employee must consider yet another exception and the particulars of that exception to the particular case. Which of course leads to the down stream difficulties of training and doing any case right to begin with.

10) Under the secretary’s plan, several hundred cases from each office will not have any cure letter or have any attempt made to cure the procedural deficiency. These are cases done between the date of the Dingess/ Hartman decision and the date that VBA determined its course of action. In essence, those veterans have had their procedural due process PURPOSEFULLY IGNORED so that the secretary could report to Congress a higher number of cases completed. So much for no one left behind or every citizen being given due process under law.

As to the rule of prejudicial error; The court held that when a veteran alleges with specificity, that a deficiency in either the VA’s duty to Notify or the Duty to Assist caused him/her harm, the burden shifts to the VA to respond to that allegation. Presently, it is uncertain as to whether the initial decision as to prejudicial error must be addressed at the Regional office- which would create another class of claims, furthering the difficulty of processing any single claim.

In summary, the effect of the Dingess/ Hartman decision, and more importantly the VA’s response, illustrates the fundamental way the VA fails to understand the nature of the constitution, due process and the guarantees afforded to every citizen. In short, the VA is screwing every veteran out of the rights that they have shed blood to uphold, so that they can fraudulently report that ‘claims processing is improving.’

The idiots are running the asylum.

Joel Waldman

President

AFGE Local 2823

VARO Cleveland

216 522 3530 x 3021

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I have to make a corection to a previous post:

Hollywood - You can't sue the VA directly untill the 1933 EconomyAct is overturned. HOWEVER at the end of the month I plan to contact the ACLU (after all veterans are a minority) and see if they will challenge that law on the basis the it denies DUE PROCESS OF LAW. Which is HOW the VA gets away with screwing veterans.

CORRECTION SHOULD READ:

Anyone who would like to support that actiion please let me know at : rogusbunny@hotmail.com

Sorry if anyone tried to email me at the other address - Was very tired when I wrote the original msg.

Thanks

Robert

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To Hollywood and Morgan - Please let me know what kind of responses your letters are getting. If we could coordinate our efforts that might help.

thanks

Robert

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