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Harvey V Shinseki


Berta
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Question

In part:

"Moreover, the fact that the Secretary ultimately exercised the

degree of diligence and effort necessary to calculate the petitioner's award, after the Court

intervened by way of this proceeding, does not excuse his gross mishandling of the petitioner's claim

or his eleventh-hour response. In light of this evidence, the Court finds that there is clear and"....

"1 Not only has the Secretary's lack of diligence resulted in an unnecessary expenditure of judicial and

administrative resources in this proceeding, it is now equally apparent that the information was readily available during

the petitioner's 2006 appeal. See generally Abbs v. Principi, 237 F.3d 1342, 1351 (Fed. Cir. 2001) (ordering that

sanctions be imposed on counsel for making arguments that resulted in an abuse of the judicial process and waste of

taxpayer funds). It is astounding that the petitioner's appeal for an earlier effective date for compensation benefits in lieu

of retirement pay could consume over ten years of the parties' resources without the discovery of this crucial document

in the claims file."

6

convincing proof that the Secretary failed to process the Court's June 2008 remand order in an

expeditious manner as required by the Court’s order and 38 U.S.C. §§ 5109B and 7112. See

Pousson, supra.

C. Lack of Reasonable Diligence

The" etc etc

http://www.vawatchdogtoday.org/uploads/court_case.pdf

This is one of the strongest worded CAVC orders I have ever seen.I am so Angry about this vet's situation and the BS from the VA he received that I didnt copy it well here.

Best to use the link to the CAVC case

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Finally! Thanks Berta for informing us of this important case, which basically states when the VA jacks around the Veteran, like they did here, the VA has to pay court costs.

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The following blew me away - slammed them good !

"Unfortunately for the petitioner, what followed was a parade of administrative miseries that unnecessarily delayed the execution of the specific award and easily accomplished Court order and ultimately resulted in the petitioner not receiving a final answer on his remand until two years after the issuance of this Court's decision.

These miseries included a failure by VA to recognize that the petitioner had withdrawn his power of attorney from the Texas Veterans Commission; an unexplained four-month delay between mandate and the Board's request

for the petitioner's claims file; multiple transfers of the petitioner's claims file; direction of the petitioner's claims file to the San Diego, California, regional office instead of to the Los Angeles,California, regional office (LARO) that had proper jurisdiction; erroneous entries into VA's software for tracking claims (VACOLS); requests for duplicate information; failure on the part of multiple

VA personnel to note a critical August 10, 2000, letter in the petitioner's claims file that apparently contained most, if not all, of the information needed to answer the Court's remand order; and, finally,

2

failure of the attorneys representing the Secretary to ensure that the Court's order was carried out."

- - - - - -

In this case, the Secretary's processing of the petitioner's remanded claim cannot be characterized as expeditious.

An expeditious manner is characterized by promptness and is synonymous with swift, speedy, fast, and rapid.

RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 680 (2d ed. 1987).

Here, it took the Secretary 666 days to comply with the Court's June 2008 remand order.

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And they always wonder on the hill, why don't the veterans trust us ?

Justice Roberts hit the nail on the head when he mentioned it was as if the deck is

always stacked against the veteran.

My 2 Cents

0331

In part:

"Moreover, the fact that the Secretary ultimately exercised the

degree of diligence and effort necessary to calculate the petitioner's award, after the Court

intervened by way of this proceeding, does not excuse his gross mishandling of the petitioner's claim

or his eleventh-hour response. In light of this evidence, the Court finds that there is clear and"....

"1 Not only has the Secretary's lack of diligence resulted in an unnecessary expenditure of judicial and

administrative resources in this proceeding, it is now equally apparent that the information was readily available during

the petitioner's 2006 appeal. See generally Abbs v. Principi, 237 F.3d 1342, 1351 (Fed. Cir. 2001) (ordering that

sanctions be imposed on counsel for making arguments that resulted in an abuse of the judicial process and waste of

taxpayer funds). It is astounding that the petitioner's appeal for an earlier effective date for compensation benefits in lieu

of retirement pay could consume over ten years of the parties' resources without the discovery of this crucial document

in the claims file."

6

convincing proof that the Secretary failed to process the Court's June 2008 remand order in an

expeditious manner as required by the Court's order and 38 U.S.C. §§ 5109B and 7112. See

Pousson, supra.

C. Lack of Reasonable Diligence

The" etc etc

http://www.vawatchdo.../court_case.pdf

This is one of the strongest worded CAVC orders I have ever seen.I am so Angry about this vet's situation and the BS from the VA he received that I didnt copy it well here.

Best to use the link to the CAVC case

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  • HadIt.com Elder

How many veteran's claims have been delayed or denied in a similar fashion? One of the major reasons used by the VA to deny many past claims was based upon "not duty related".

There is no justification for this type of denial when the claim originated from an in-service event, and mis-conduct was never alleged.

It's really a case of the VA using delay, "divide and conquer", and other tactics to deny valid claims anyway they can think of.

I believe that the "systemic" bias to deny cries for serious change. It plainly does not meet the intent of Congress, and the letter of the law.

A denial should be more difficult to obtain when --

There is at least as likely as not present, based upon evidence.

Negative or no evidence is used to totally offset positive evidence.

When "lack of evidence" exists - -

Is a government or DOD action (or lack of action) responsible?

If so, this should be counted for the veteran's claim, not against.

And so on.

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Yeah how many?????

As Jim Strickland said today this is first time the Court found VA in contempt.

There is more to come on this one............................

And as Carlie cited the "administrative miseries" whch many of us can relate to here-

these situations don't happen n a vaccuum. They become deliberate at some point.

As RonP pointed this part out:

"It is astounding that the petitioner's appeal for an earlier effective date for compensation benefits in lieu

of retirement pay could consume over ten years of the parties' resources without the discovery of this crucial document

in the claims file."

Astounding?

I could have settled with VA OGC within 4-5 months of filing my FTCA wrongful death claim.

But the Peer Review of March 1995 (I filed in Dec 1995) suddenly disappeared for years.

I order my C file in 2003 and there is was right at the bottom.

"without the discovery of this crucial document

in the claims file."

The VA in DC began to fight me hard but the RO also failed to send them another CRUCIAL document -my husband's autopsy=

also in the C file.It took 2 more years to prove FTCA wrongful death.The OGC did a peer review without the autopsy.

I already yapped about this to the H VAC 2 years ago in Testimony.

My point here is I kept on them because otherwise I would have never know what they were deliberately withholding from their own C & P docs as well as the OGC and VACO doctors.

The 53 tracking slips of evidence they never acknowledged as within my H VAC testimony

only was regarding my 2003 AO claim.

I was asked to give testimony at the last minute and didnt have time to relay the deliberate and unconscionable story regarding my 1151 and FTCA issue.

That will come to light with the H VAC in time however.

Since I proved there had been a cover up of my husband's misdiagnosed medical conditions by deliberate steps taken by VA medical staff ( for 6 years) and then the ridiculous 7 years my last claim took-due to deliberate steps on the VAROs part (documented)

I believe that it is "as likely as not" the VA is pulling this BS on vets and widows who don't even know it yet.

Many claims certainly take time due to many reasons.But how many "crucial documents" are being overlooked by raters or worse yet removed from C files deliberately so that the claim can be denied.

If they do not list critical evidence you have sent to them on any SOC/SSOC and/or fail to address this evidence in the SOC/SSOC get on them right away about it.

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