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]

That is a class action that I would like to see Bertha.  I can add several C&P examinations where the doctor went way off the reservation.  I have one where the neurologist claimed my disability of more than ten years was congenital and hindered by my abuse of drugs (medication prescribed by a doctor).  The RO went so far as to say that they were going to pull my service connection in an SOC.  At a second C&P by the same doctor he doubled down on his opinion and was rude, unprofessional, and confrontational.  I really wish I had recorded that C&P.

Could we also add a class action where the RO's did not consider all evidence of record?  I have a remand where the RO was chastised for this.

I am not smart enough to file a claim like this but I would like to be involved if one is filed.  I would be willing to sue the VA for $1.00 and lawyers fees if we could bring some of this monkey business to light of day.

[Berta]

"Could we also add a class action where the RO's did not consider all evidence of record?  I have a remand where the RO was chastised for this"

I think maybe- but then again, we do have appeal rights and the Wonderful 38 CFR 4.6 regulation to force them to consider our evidence.Yet if they violate 38 CFR 4.6 again -after we have filed CUE under that reg-for the same claim, same evidence they ignored - then I would think it might be a Class Action basis-but I dont think it would really be a successful cause of action because of our appealate rights----and that fact that many of us fight until they DO consider our evidence.

 

Yes, BVA mentioned something like that in my remand I think-

I had asked the BVA to remand my 2003 death claim ( which my VARO tried to refuse to re-open, as I already received DIC under 1151) because their VCAA letter was highy deficient.

I had by then  3 IMOs to support my claim ( all completely ignored by the VARO), and 2 ridiculous C & P exam results, which Dr Bash knocked down. I had a freebee also from a  former VA Neuro.BVA gave that brief IMO much weight as it corroborated the IMOs from Dr Bash.

But the BVA remanded however for a third posthumous C & P, to be done by a cardio doctor.I was thrilled because a real cardio doctor would provide another supportive opinion- I had no doubt of that and paid for a IMO from a forensic Cardio IMO doc... just in case I got a bogus VA cardio opinion....

I got instead a PA opinion and immediately knocked that down medically and deemed as as too speculative, because this did not comply with what the remand called for, and I sent my rebuttal to the BVA right away.

A Brown envelope came not to many weeks later from the BVA. I threw it on my desk because, I had received that same year two decisions for two different veterans, from the BVA by mistake  and I had to contact their POAs.One was a remand and I emailed the vet rep  with some advice on how to get the claim awarded.The other was an award from the BVA. It seemed way too soon to hear on my BVA case.

Then finally I opened the BVA envelope,It was an Award to me.!!!!

The BVA agreed with my rebuttal of the C & P done by the PA and acknowledged my VCAA rights had definitely been violated but that was a moot issue because I had overcome the VCAA error with probative evidence.

The forensic firm refunded about half of my fee because the opinion had stil not been done by the cardio doctor.

BUT-in 2003,and the years after that, when I was at the RO and BVA , I was dealing with college courses and my favorite Professor was very tough on me (a major USMC and I was the first civilian at AMU) but he gave me all A's anyhow.

I should have filed CUE under 38 CFR 4.6 on them when they refused to read my IMOs, but I never did-I knew if I was patient the BVA would award.

I have used 38 CFR 4.6 since then many times with success.

I dont think class action would stand in a cause of action, in which the claimants have not exhausted ALL of their appellate rights.

 

 

 

[broncovet]

Berta:  

     You posted:

Quote

Many years ago I filed a Class Action on behalf of all disabled veterans- I forget what the actual premise was at that time- it is at least 6 or 7 PCs or more ago.

But my cause of action was not accepted by the Court.

 

Because I was not a member of that Class.

 

Maybe if I had a good lawyer to help me, I could have filed on behalf of all disabled veterans and their survivors- I would have been in that class.

In reference to this, I just had a thought that maybe a class action against VA because, literally, the VA made me homeless in 2005-2006.   In short, I applied for benefits in 2002.  This was denied in the fall of 02, and it went to the BVA in 2003.  In 03, the BVA awarded a "complete grant of benefit sought" as I had met all the caluza elements.  The VARO then "implemented" my BVA "award" at 0 percent for hearing loss only.    During this time of delays, denials, 0 percents, I eventually lost my home to foreclusure.  My medical records show that I told VA my home was in foreclosure.  

One significant issue is that a claim for compensation is a claim for pension and vice versa.  Had the VA awarded pension, the 1000 a month or so would have been enough for me to squeak by and avoid foreclosure.  However, I was not awarded pension until I specifically applied for it in 2005.   My doctor recommended it..that is, it takes so long to get compensation, I should have applied for pension in the mean time.    (I did not know about it...Is it my job, as a Veteran claimant, to be familiar with all the VA's loopholes, differnces between comp and pension, eligibility, etc? I dont think so, but still, they could have awarded pension effective in 2002, but did not do so.  This oversight led to my home foreclosure) . 

My position is that, in 2002, I applied for the "VA benefits (including comp and pension) that I was eligible for".  Instead, the VA viewed this as a claim for hearing loss compensation only, and treated it accordingly.  This is against regulations, where it explains that veterans are entiltled to a "broad interpretation" in 38 cfr 3.102.  This narrow interpretation of my benefit request resulted in homelessness.  There is no doubt something similar happened with thousands of other homeless or formerly homeless Vets.  

Im interested in your opinion of a class action lawsuit involving the VA making Vets homeless.  The VA needs to do more to help homeless vets, and this does not help by theri failure to comply with 3.102.  

[Berta]

There have been Class Action cases from homeless vets-if you google class Action homeless vets stuff will pop up-I found this link from NVLSP but I dont use Facebook so I could not read it all.

 

https://www.facebook.com/LawyersServingWarriors/posts/our-new-class-action-lawsuit-to-help-veterans-is-getting-attention-the-federal-g/10154424514423404/