Freeman V Shinseki Won

[Berta]

Freeman V Shinseki (10-1462)

In part states:

"The Secretary opposes the petition on the grounds that the determination of whom to

appoint as fiduciary to manage the petitioner's VA benefits is a matter within the sole discretion of

the Secretary and outside the jurisdiction of this Court or any Court. For the reasons that follow, the

Court grants the petitioner's request for extraordinary relief and will issue a writ of mandamus."

and

"Regardless of what the Secretary decides to do, it would benefit the system for VA to

explicitly address the relationships that are recognized elsewhere, thereby saving the veteran up to

4% of his or her benefits that is customarily charged by the VA-appointed fiduciary. In general,

veterans will be better served if their funds– regardless of the source– are managed by a single

individual who can manage them intelligently based upon a real familiarity with the veteran's

situation and needs."

Jim Strickland (VAWatchdog) kindly gave me a heads up on this early this AM and full story is at VAWatchdog Today.

I will read it all and add more here later.

This is a BIGGY. The VA has had TOO much control over fiduciary matters.

And they accepted NO responsibility at all when VA- appointed fiduciarys could not account for the veteran's compensation properly 8in many cases.

This is a victory for incompetent veterans and any vet could someday find themselves in a situation whereby they cannot control their own compensation funds.

http://www.vawatchdogtoday.org/uploads/Freeman_CAVC_Dec_4-26-11.pdf

[Sidney56]

WOW-I spoke too soon-

the How To guide to challenge any attempt by VA to appoint a fiduciary not of one's choice will be at VAWatchdogToday by noon EST.

Thanks Berta....I'm heading over there now to see if I can get a copy.

I hope Omg-Sue is reading this post, as she and K is going through the same

mess.

[Berta]

I mentioned here before in the IMO forum and it bears repeating that

if you have an IMO for a mental health claim it is GREAT idea for the IMO doctor to declare you are competent to handle your own funds with a brief rationale for that.

The new PTSD regs disregard any IMO that supports a PTSD diagnosis -which can only come from a VA MH provider, under the new regs but that has been challenged in court and perhaps we will have a decision on that soon and the best thing that could happen is that the regs will be amended to include IMO diagnoses from independent MH providers.

The VA proposals of incompetence only come about when they see a large MH retro looming.It can hold up the retro for months.

SSA has a similiar regulation but you have always had appeal rights with the SSA and none with the VA for competency issues.

[Sidney56]

That's very good advice for the vets that are battling a MH claim.

For us guys that was given a rating citing proposed incompetency, Carlie

gave some pertinent information that might help us. I had asked my treating

Psy and PCP to enter an opinion in my treatment records of my current functioning

capacity and both refused, stating some gibberish about they couldn't change anything

that the VBA had decided because they didn't have and can't change my medical records.

I told each of those idiots, that I didn't want them to make a decision on my claim, only

to enter their observations as my treating physician. They still refused. I will be taking

the information below to each of them at my next visit!

VHA DIRECTIVE 2008-071

d. Medical Statements to Support VA Benefits Claims. When honoring requests for medical statements by veterans for VA claims adjudication, care must be taken to avoid conflict of interest or ambiguity.

(1) Determination of causality and disability ratings for VA benefits is exclusively a function of the Veterans Benefits Administration (VBA). VHA providers often do not have access to military medical records, and may not be familiar with all the health issues specific to military service, such as environmental exposure. As a result, they may not feel comfortable in stating causality of a current condition. However, this does not preclude VHA providers from recording any observations on the current medical status of the veteran found in the medical record, including their current functional status. All pertinent medical records must be available for review by VBA. NOTE: VHA continues to provide compensation and pension (C&P) examinations and reports as requested by VBA, as part of any new disability claims or review process.

(2) Requests by a veteran for assistance in completing a VA disability claim are to be referred to VBA through official channels; however, the clinician, if requested by the veteran, must place a descriptive statement in the veteran’s medical record regarding the current status of the veteran’s existing medical condition, disease, or injury, including prognosis and degree of function. This may then be requested by VBA for the purposes of making a claim determination.

5. REFERENCE

a. VHA Handbook, 1605.1.

b. Title 38, CFR 17.38 (a) (1) (xiv) “Medical Benefits.”

[broncovet]

This is still another example of WAY, WAY too much power given to the VA, and the VA taking away WAY, WAY, to many rights of the Veteran, and way too little accountability for the VA.

[Berta]

It even made the NY Times.com

http://atwar.blogs.nytimes.com/2011/04/27/court-rules-against-v-a-on-fiduciaries/

Freeman's lawyer Doug Rosinski is a very well known veteran's lawyer.Many of yo recognize the name from CAVC cases.

I interviewed him at SVR but cant remember when- maybe he will return sometime to SVR.

[Sidney56]

Yea!! Now maybe the general public will start to realize the fight that

we have just to survive.

Berta did vawatchdog ever post the "How to guide for fiduciaries" on the

site? I can't seem to find it.