Writ Of Mandamus...berta?

[broncovet]

Berta spoke of filing a writ a few weeks ago. Please correct me if I am wrong but I thought she said something about posting it. Maybe not?

Im just relying on memory, and, beleive me, mine is not that great any more. So, please dont be offended, Berta, if I am wrong. Also, there is a good chance she is waiting and thats ok, also.

I have filed a Writ, myself..but that does not mean I am too good to learn from others.

Its been my impression that Writs are, pretty much regurarly denied, about 90 percent of the time. However, before they are denied, the judge asks the VARO manager to "respond" to the writ. The manager responds, usually with something like, "Well gee your honor, I know 12 years is a long time to implement a board decision, but isnt that backlog awful? By the time you get this response "poof", I think you will find out we already did that. (The next day after they got the Writ). What a coincidence? Gee, now your honor, there is no issue, so please deny that writ, too. How is your youngun doing in soccer? Gee that is great. Tell your wife, I will see her at the scrapbook meet, and bring back the stuff I borrowed from her, too. By the way, you can tell your nephew, your honor, to come in and interview for that assistant manager position any time. I will keep that slot open for him for when he gets out of rehab."

Edited July 7, 2015 by broncovet

[carlie]

Berta spoke of filing a writ a few weeks ago. Please correct me if I am wrong but I thought she said something about posting it. Maybe not?

Im just relying on memory, and, beleive me, mine is not that great any more. So, please dont be offended, Berta, if I am wrong. Also, there is a good chance she is waiting and thats ok, also.

I have filed a Writ, myself..but that does not mean I am too good to learn from others.

Its been my impression that Writs are, pretty much regurarly denied, about 90 percent of the time. However, before they are denied, the judge asks the VARO manager to "respond" to the writ. The manager responds, usually with something like, "Well gee your honor, I know 12 years is a long time to implement a board decision, but isnt that backlog awful? By the time you get this response "poof", I think you will find out we already did that. (The next day after they got the Writ). What a coincidence? Gee, now your honor, there is no issue, so please deny that writ, too. How is your youngun doing in soccer? Gee that is great. Tell your wife, I will see her at the scrapbook meet, and bring back the stuff I borrowed from her, too. By the way, you can tell your nephew, your honor, to come in and interview for that assistant manager position any time. I will keep that slot open for him for when he gets out of rehab."

In complete agreement and enjoyed the humor of reality.

jmho

[Berta]

I am still waiting for an IRIS response.....

to prove to the CAVC that I have done everything possible to have this issue resolved .

and I wanted to get some medical appts over with first too......just got my last check up hours ago.....

Now I can get that writ going.....

I guess after 2 IRISes in 2 months with no response at all... I just have my hand on my ass waiting for that anyhow.

My last check up today was one of great concern to me....

It is hard to concentrate on one's VA issues when worrying about something else.....

I can post what I already have prepared for the writ.......

that alone might help someone with a Mandamus issue,

[Berta]

This is basically it

( I cannot serve the petition until I finish it and am adding one more individual to it.)

There are blanks here subject to change and numerous other pieces of evidence I may or may not include.

The Buffalo VARO has never read any of my evidence ( except for the accrued PTSD award) without a battle of some sort)

I will probably take the CAVC conditions out of the writ. They know those conditions.

But I used that as a template.

A Mandamus writ asks the court to do something,

It is a simple VA 101 regulation.that I am asking the court to order my RO to apply.

____________________________________________________________

Petition for Extraordinary Relief by Nature of Writ of Mandamus

Berta M. Simmons Petitioner

V.

Robert McDonald, Secretary , Veterans Adminstration Respondent.
Allison Hickey, Under Secretary, VA
Donna Mallia, Director Buffalo VARO

The petitioner has served this Writ on all parties involved,the Court of Veterans Appeals, the Secretary of the VA, and the Buffalo Regional Office.

The precise relief sought is that I want the Court to order the Buffalo Regional Office to finally apply 38 CFR.4.6 to my pending CUE claim.(decisions enclosed as Exhibits A and B. I have enclosed ,as Exhibit C, my original email to Ms. Hickey on this matter. The 1151 HBP claim was resolved as enclosed Exhibits D and E.If the CUE claim has been properly resolved (filed prior to this 1151 HBP claim, I would have withdrawn the 1151 HBP claim.

I am a volunteer veteran's advocate so I felt that although the HBP claim might not have had monetary gain, I would at least learn how the VA would handle it,if a similar situation popped up as I have worked on a large veterans claims website for the past 17 years. I have also enclosed my last email to Ms. Hickey, cced to the Secretary (Exhibit D )with the reason that I feel this denial of my accrued benefits ,based on the rationale of Donna Mallia, the Director of the Buffalo VA, yet not clearly spelled out at all in the decision, with no legal citations that prohibit the payment, would hinder any other survivor similarly situated from attaining a proper accrued award, if the veteran had a claim pending at death that ultimately generated a 100% award.,whether they had medical evidence of the P & T status or not.

My other accrued claim (my husband had filed for a higher rating from his 30% PTSD SC) generated (when they finally acknowldged the medical evidence in that case, 100% P & T for SC PTSD, a little over 2 1/2 years after he died.What VA regulation says that death does NOT mean a 100% disability wasn't Permanent and Total in the veteran's lifetime"

A petitioner seeking an
extraordinary
writ must satisfy three conditions:
(1) The petitioner must demonstrate a “clear and indisputable”
entitlement to the writ;
(2) the petitioner must demonstrate that he
lacks adequate alternative means to obtain the desired relief, thus
ensuring that the w
rit is not used as a substitute for the appeals
process; and (3) the Court must be convinced, given the circumstances, that the issuance of the writ is warranted.

1. I am a surviving spouse of Rodney F. Simmons, USMC, Vietnam 1965-1966.Upon his death on October 14, 1994, I filed my DIC forms to include accrued benefits request. I then continued his two claims pending at his death. My rights include 38 CFR 4.6 as well as all other rights found within 38 UCS, 38 CFR, and M21-1MR.

I was awarded a FTCA settlement for his death in 1997 ( General Counsel VA), an accrued award in 1997 for his PTSD (30% increased to 100 % P & T in a posthumous award), DIC under Section 1151 with an offset agreed to between my and General COunsel VA, 1998, BVA award in 2009 for direct service connected death due to AO diabetes mellitus contributing to death , Philadelphia Nehmer VARO award for AO IHD contributing to his death (2012),award of CUE regarding lack of SMC consideration in the Buffalo VARO 1998 DIC decision, regarding the veteran's malpracticed IHD and CVA, (2012), denial of reversed to award under CUE in

2. My writ is based on a consistent violation, in my regard, of 38 CFR 4.6.by the Buffalo VARO.
I want the Court to order the Buffalo VARO to apply 38 CFR 4.6 to my evidence.
I am not a VA employee nor a claims process training person and do not have the legal means to teach the raters at Buffalo RO how to read and then apply this basic VA regulatiopn to my current CUE claim.

I have enclosed emails to and from Ms Allison Hickey , and to and from others to include Ms/ Donna Mallia ( Director of the Buffalo VARO) that still have not propvided any legal relief to me, that would garner a proper accrued award of

Although the director told me that my CUE claim was done and over, she forgot I had filed a NOD days from today and also I filed a NOD request extension for good cause, as if a decision contains a legal error, it is to a claimant's detriment to prepare a proper NOD.

Also I raise the point that I have had multiple denials from VA in the past, that even a NOD nor response to any SOC, SSOC did not garner me application of 38 CFR 4.6.

My testimony to the Sub Committee, House Veterans Affairs Committee (Shreddergate) enclosed ,shows what I have been dealing with.

Also when the VA refused to read the regulations regarding offsets, I had to contact General COunsel VA and Mr. Hipolet contacted them, to apply this regulations to my offset claim , and they did swiftly send me the money at that time.

This writ is not to substitute an appeal, it is to insure that I and all others similarly situated will have this basic VA regulation applied to our claims before a decision is made.

---------------------------------------------------------------------------------------------

That is a basic rendition above

I also am waiting for any acknowledgement from the Inspector General as to what the VACO guy told me ( that I had been paid 22 months 100% Plus SMC accrued, and I only got 6 months....he and a woman with him checking the PC ( this was the Chief of Comp and Pen, with some other stuff to his title) who called me from VA in DC, insisted they paid me the full accrued amount.....22 months at 100% plus SMC and 2 dependents.he said he was looking right at the payment on the VA PC.

When I said I never got that payment, he said it might be a finance error.

Finance error my ass. apparently they sent my money to someone else.

I sent a hotline complaint to the IG. I didnt get that money.

Also there is another issue with what the Director of Buffalo told me by phone.......

The reason she gave me for the reason they would not pay me the additional accrued is ridiculous. I am trying to find out how I can get that reason documented.

It is not in the decision at all.if it was they would have to read my evidence.

I am relieved that my medical issue is over, I just got back from the doctor's office.

And very loopy from the antibiotic...........this was preventing me to concentrate on my own issues.....

and I cant figure out if I am a victim of RO incompetence , at their highest level (VACO) or a victim of VA fraud.

The IG did contact the RO when they tried to open a new DIC claim for me last year.. They dropped that claimright away.

It would be very easy for VA to take any one of my 3 DIC awards and pretend the evidence regards someone else.

There is a little more evidence more I am waiting for as well......because I do not intend to have this writ denied.

Edited July 7, 2015 by Berta

[Berta]

I am adding this guy for service as well:

"Jeff Henderson

Chief, Quality Review and Consistency (214C)

Compensation Service

202-461-1454"

from his email to me, referred to me by Ms Hickey.

He is the one who said the VA PC showed I was already paid 22 months accrued under 1151, \for 100% plus SMC with 2 dependents.

I questioned that he might be looking at the 1997 award but he said "No, this is for the 1151 stroke issue:

The woman he said who was listening in to his call to me, never questioned what he said and she was reading the PC as well.

[broncovet]

Thank you Berta!

Others should also consider using Berta's writ as a guide if they need one.

Im very interested to see how yours comes out because, even tho I consider 4.6 "very general", I agree it applies. Im filing on 3.103 as VARO failed to give a written decision on a claim affecting benefits in 3.103 (f).

Im filing an I9 now, as they FINALLY (in June 2015) implemented my 2012 Board decision remand, so I will wait until I see the outcome before filing a writ.

[broncovet]

...As bad as my disabilites are, Im still better than most of the VSO's who tried to "help" me by doing things like recommending not appealing a zero percent rating as they could reduce me, dontcha know.

I have my RBA on DVD, and that is awesome. I can print parts of it from the dvd, where the VA could not read. Maybe I should make a coloring book out of it and send the RO crayons.