Freeman V Shinseki

[Berta]

William E. Freeman v. Eric K. Shinseki

Case Number: 10-1462

Set for oral argument this Wednesday morning at the CAVC.

http://www.vetadvocates.com/FreemanNOVAamicusbrief.pdf

This is an VERY important case to follow :

In their Amicus Curiae response brief Brief, (response to Nov 2010 CAVC order) NOVA (National Organization of Veterans Advocates)states:

In part:

“Indeed, the Secretary has been uniformly successful in blocking access to federal district courts by claimants challenging fiduciary decisions.”

and

“So fervently has the Secretary been in his arguments that at least one court dismissed the case without prejudice and encouraged the veteran to “contact [a] local VA field office for instructions on how to pursue his claim through the proper channels and, if necessary, file an appeal to the Board of Veterans’ Appeals.” See Judkins, 415 F. Supp. 2d at 618. This is the path that the Secretary now asserts does not exist.”

and the brief states:

“VA'S APPOINTMENT OF A FIDUCIARY AFFORDS A CLAIMANT NO DUE PROCESS OF LAW DESPITE ITS IMMEDIATE AFFECT ON HIS DISABILITY BENEFITS”

TRUE and completely at odds with the concept and right of Due Process as found in the US Constitution.

This is a case not only regarding the chaotic and often unfair VA fiduciary system but is a case that reflects our basic Due Process rights in many regards.I think at least one named fiduciary in the WACO scandal will face criminal charges and this all might be just the tip of the iceberg.

ANY veteran could find themselves in Freeman's position.VA appoints a fiduciary who could even have a criminal background and the VA never checked them out good or someone who simply has no proper accountability for the veterans missing fiduciary funds and the veteran has NO recourse for due process through the VA to fight back.

The entire concept of a VA appointed fiduciary is an oxymoron in my opinion because VA has appointed fiduciaries in cases where the veteran had a relative who could have adequately and honestly handled their funds.

Something is drastically wrong with that picture.

Hopefully this case will change all that.

As soon as I get any update after the CAVC hearing I will post.

[broncovet]

Berta, thanks for the post, and I agree 100%, but add that more than just Veterans needing a fiduciary are at risk here. We are kidding oursleves if we think otherwise.

Due process rights are violated by the VA with impunity from the law. If the VA does violate due process, the VEteran has to spend years trying to fight what was due him in the first place.

There needs to be some enforcement, or some penalty the VA must pay for violating due process or regulations. The Veteran should not have to bear that cost/ burden.

For example, I filed a NOD in 2004, and the VA never did file the required SOC. The VA admits to receiving my 2004 NOD, but contends it was "interpreted as a benefit claim" in spite of VA employees who wrote "appeals" right on the document. My complaints that my due process rights were violated fell on deaf ears at the VARO.

Seven years later, in 2011, I may finally get a chance to tell my story to the BVA, just because I am raising that issue on the tail end of another appeal. (But I still wont get the benefit of the SOC or the VA "duty to assist") I will probably have the burden to try to prove that this due process failure was "prejudicial" and not "harmless error" and I dont even know if I can do that! I may have to appeal again to substantiate my contention that the error was not harmless! Im gonna give it my best shot, but I just know the VA is going to shout, "harmless error" at me, if they concede the error at all.