Stunning Class Action news for veterans

[Berta]

https://law.yale.edu/yls-today/news/historic-decision-veterans-court-will-allow-class-actions

This is really incredible news!

Veterans have always been prohibitedf from filing Class Action cases that involved the VA. I am cntacting Yale Tomorrow- ( they did some radio shows with us in the past-dont know if it is the same legal team) to see if they have included widows of veterans...

 

"WASHINGTON — A federal court ruling this week opened the possibility for veterans to file suit against the Department of Veterans Affairs as a class rather than individuals, a move that advocates say could dramatically shift how legal cases against the bureaucracy are handled.

The ruling, Monk v. Wilkie, came from the U.S. Court of Veterans Appeals. The eight-justice panel ultimately ruled against the plaintiff’s claim that their case should proceed as a class-action suit, arguing it failed to meet previously established standards for such legal consideration.

But they did say that in “appropriate cases” in the future, class-action lawsuits would be entertained.

“This is a watershed decision, and its importance should not be diminished merely because the court declined to certify this proposed class,” Chief Judge Robert Davis wrote in the opinion. “On the contrary, the court's decision will shape our jurisprudence for years to come and, I hope, bring about positive change for our nation's veterans.”

 Veterans ask court to reinstate lawsuits over burn pits in Iraq, Afghanistan
Veterans ask court to reinstate lawsuits over burn pits in Iraq, Afghanistan
Veterans and their families asked a federal appeals court Wednesday to reinstate dozens of lawsuits alleging that a government contractor caused health problems by using burn pits during the wars in Iraq and Afghanistan.

By: Denise Lavoie, The Associated Press
Fellow appeals court Judge Michael Allen said the decision “has been decades in coming and holds great promise as a means to address systemic problems in the VA system.”

 

https://www.militarytimes.com/news/2018/08/24/court-ruling-allows-class-action-lawsuits-against-va/

Monk V Wilkie- I will try to find that case----

Can you imagine this????  Any class of veterans who have commonality can file a lawsuit under Class Action!

 

The Burn Pit vets are a good example- I hope veterans take advantage of this new legal decision.This is what can change the VA for the better!!!!!!!!!!!!!

 

 

 

 

[vetquest]

This is interesting.  As a vet who waited ten years for my case to complete my son did not get a chance to use education benefits and I paid $9000 in taxes I would have saved.  How's that for a start, getting back the lost benefits that were squandered as the VA diddled.

I read the decision.  A lot of legal jargon that maybe only a lawyer would understand.  I contend that 1 year may be too short of a time to create a class.  That said we have veterans waiting much longer than three or five years waiting, or waited.  A lot of this time waiting is at the RO as the case sits without any action.  I would include remands in there as remands go back to the RO and they do not handle the cases in a manner prescribed by the board.

Edited August 26, 2018 by vetquest

[Berta]

Vets have lost their homes  and many have gone bankrupt, and even died waiting for their decisions.

But Monk failed on the commonality criteria-if he or any class of vet could prove that VA systemically failed to adhere to 38 CFR 4.6. , or any other specific regulation, to their detriment, that causes the long await for a proper resolve, I feel those veteran would have a strong case.

this was part of the Secretary's rebuttal:

 

“The Secretary points out that compliance with the statutory duty to assist is responsible for the delay experienced by some veterans.18 Id. at 20-23. Additionally, he notes that VA's duty to provide veterans hearings on their claims may cause delay.19 Id. And, in other cases, delay is precipitated by the number and complexity of the claims on appeal.20 Id. Further, the Secretary argues that, because a delay of any particular period of time may be quite reasonable in one case and extremely unreasonable in another, certification of a broad class based on allegations of systemic delay throughout VA's two-step appellate process is inappropriate.21 Id. “

Monk V Wilkie 15-1280 US CAVC

 

He has made some legal points that make sense- but the idea of his first statement here is ridiculous-

The VCAA (aka 5103 waiver) I bet has been mishandled by VA many many times, in addition to the applicability of 38 CFR 4.6.If the VA screws up the 5103 ( as in my recent experience, then that claim is doomed due to the screw up unless the claimant knows better.

 

It is the basis of a CUE I just filed.

VA's Duty to assist is really minimal for many claimants.If a claimant follows the 3 prong of Caluza, they should succeed with little time spent by the VA under DTA.

 

DTA overcame the dreaded “ not well grounded” BS VA used to deny claims with, and veterans can get these days, prof of stressors via JSRRC, and proof in nexus with their SMRs,

 

 

this was part of the Secretary's rebuttal:

 

“The Secretary points out that compliance with the statutory duty to assist is responsible for the delay experienced by some veterans.18 Id. at 20-23. Additionally, he notes that VA's duty to provide veterans hearings on their claims may cause delay.19 Id. And, in other cases, delay is precipitated by the number and complexity of the claims on appeal.20 Id. Further, the Secretary argues that, because a delay of any particular period of time may be quite reasonable in one case and extremely unreasonable in another, certification of a broad class based on allegations of systemic delay throughout VA's two-step appellate process is inappropriate.21 Id. “

Monk V Wilkie 15-1280 US CAVC

 

He has made some legal points that make sense- but the idea of his first statement here is ridiculous-

The VCAA (aka 5103 waiver) I bet has been mishandled by VA many many times, in addition to the applicability of 38 CFR 4.6.If the VA screws up the 5103 ( as in my recent experience, and also in 2003)then that claim is doomed due to the screw up unless the claimant knows better.

It is the basis of a CUE I just filed.

VA's Duty to assist is really minimal for many claimants.If a claimant follows the 3 prong of Caluza, and do the leg work to satisfy each prong, they should succeed with little time spent by the VA under DTA.

DTA (VCAA) overcame the dreaded “ not well grounded” BS VA used to deny claims with, and veterans can get these days, proof of stressors via JSRRC, and proof in nexus with their SMRs, themselves- the internet has made it far easier to get what they need than in the olden days of "not well grounded",pre VCAA.

The good part of Monk is that the Secretary already admitted to his rationale as to why some claims are delayed.

He didnt account for claims trhat were denied 38 CFR 4.6- probably far more than we know-actually that is the reason my claims were denied right off the bat-,causing a fight, to get an award anyhow-because the VA was willing to break 38 CFR 4.6 hoping I was dumb enough to accept that.

Oh well........ vets with systemic problems due to legal errors in their claims, will use this to the advantage of others "similarly situated......the basis of class action.......

or they wont.

 

 

 

 

 

 

 

 

 

[broncovet]

Im not sure what is going on here.  Isnt it true that Veterans ALREADY won the Nehmer class action suit?  So, Im not getting how this case allows class actions, when a class action was already won by Vets several years ago.  

 

[Berta]

There  is a lot to Class Actions:

If individuals, all prescribed a medication, the same medication, and they find they have suffered other disabilities or death due to this medication, they can file a Class Action lawsuit against the manufacturer-or maybe even the hospital that prescribed it-

 

But now, if many veterans , all prescribed a medication, the same med, prescribed by the VA and find they have an additional disability (or death) due to the medication, they can file a Class Action lawsuit against the VA.The Class Action would cover anyone “similarly situated” who would not need to be named in the Class Action.

Nehmer at first was for Beverly Nehmer, widow of a veteran.

When the Gov agreed that AO had caused his death, ALL incountry Vietnam veterans became part of the Nehmer class action, to include their survivors.
 

When the Gov found that AO was causing disability and death in many in country Vietnam veterans , a class action case was filed against Dow and Monsanto the makers of AO.

My husband and I , after he died, were in that class action, and were paid through the Western District Court here in NY. WE were both in the Nehmer 2010 class action...different from the AO Settlement Fumd class action.

Here is a pending class action from NVLSP:

http://www.nvlsp.org/news-room/press-releases/nvlsp-files-class-action-lawsuit-against-government-over-shortchanging-comb
 

Some years ago I was in another Class Action:

John Hancock Life Insurance Co had sold me and others life insurance policies that were misrepresented to us all.The company was sued by Class Action with some proof of the way the policies had been presented to us.In my case the salesman had written notes on some of my policies, indicating what he told me they were for.This was a scam that many only found out about when we got letters to the affect that we were named in the class action and what we needed to send to the lawyers.

Some of my policies were void due to the scan but they had to pay me back all of my policy payments to them-a large amount because I had been with them since 1965.

Another example is the Mesothelioma Class Actions. Some veterans can obtain SC from the VA from asbestos exposure in service as well as be part of this specific class action.

Also when I discussed  what I knew about VA malpractice-due to the Fayetteville situation with a lawyer ,whose firm had received many calls already) due to the Fayetteville AR situation, ( they VA  have not released any more findings yet-) I told him of 3 concerns I had -that they had just discussed that AM as well...one of them was Class Action.

It is possible that the pathologist who caused malpractice in 7 vets ( confirmed) and potential in one death or maybe 3, only after a review of 900 vets records- they had over 20,000 to review, that it is as likely as not  the pathologist malpracticed on many more than just the 7-10 vets who are public knowledge- thus a Class Action potential.

VA still does not want anyone to know about this but it is all over the internet.

There are all sorts of Class Action cases on TV.......too.......

They cannot be filed by an individual but pro bono lawyers ( Like NVLSP and Yale Law are possible, )and besides, if many vets are involved they could possibly handle any legal  retainer fee by each paying something toward it.Then again I never nor my husband had to pay anything like that when we were considered  members of the class.

 

 

 

 

Edited August 26, 2018 by Berta

[Vync]

21 hours ago, vetquest said:

As a vet who waited ten years for my case to complete my son did not get a chance to use education benefits and I paid $9000 in taxes I would have saved.  How's that for a start, getting back the lost benefits that were squandered as the VA diddled.

Same deal here. I filed in 2008 and was awarded 100% P&T in 2012. My state allows homestead tax exemption for being 100% P&T. However, due to the VA red tape, I had to pay the homestead tax for four years. My state said they will not retroactively refund it.

[Berta]

I am sure that is the same case for MANY veterans-

I need to call Jerrel Cook to see if the Yale Law Clinic will return to the radio show- as they did shows in the past here, to explain what this means to veterans.

I am waiting for a response to my email to Yale Veterans Clinic as to whether survivors can file Class Action as well- dont see why not----