Petition for Writ of Certiorari — Bernklau v. Brown, 113 S. Ct. 1847 (1993) (No. 92-1381)
Supreme Court brief1993
Ask Donna
What actually matters in this document.
Text
Bupreme Court, U.S |
\ 3a a 2 Be a FILED
=p RR. & Le?” of f
eas .|
FEB 19 1993
No. \
Sr ee CLERK
IN THE
Supreme Court of the United States
Ocroser Term, 1993
ARTHUR N. BERNKLAU,
Petitioner,
vs.
THE UNITED STATES OF AMERICA, THE
DEPARTMENT OF VETERANS AFFAIRS and
JESSE BROWN, SECRETARY OF VETERANS
AFFAIRS,
Respondents.
PETTTION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
PETITION FOR WRIT OF CERTIORARI
ARTHUR N. BERNKLAU
Pro Se
c/o Sidney Cooper
44 West 62nd Street
Suite 29 A
New York, New York 10023
(212) 586-2993
Questions Presented
1. Whether the inability of veterans to
obtain and a fair and impartial hearing
Pursuant to disability claims is subject
to constitutional review by Article III
Courts ?
2. Whether the Federal Courts have
jurisdiction to entertain constitutional
challenges to the operation of the VA
claims adjudication system ?
3. Whether the due process protections
afforded welfare recipients, as expressed
in Goldberg v Kelly, 397 U.S. 254 (1970),
apply to needy veterans, recognizing that
approximately 20% of all veterans claims
are based upon need ?
4. Whether this Court will resolve the
acknowledged conflict between the 7th and
the 2nd Circuit over whether the VA’s
unpublished policies, practices and
procedures are subject to judicial review,
as held in Marozsan v U.S. (in banc) 852
F.2d 1489, (1988) and Johnson v Robison
415 U.S. 361 ( 1974 )
5. Whether the Court of Appeals for the
Federal Circuit was correct in its holding
that the Judicial Review Act of 1988
( P.L. 100- 687 ) is constitutional ?
6. Whether the Court of Appeals for the
Federal Circuit has any jurisdiction over
the Court of Veterans Appeal’s judicial
conduct ?
7. Whether the Court of Veterans Appeals
is permitted to conduct ex parte
proceedings to the exclusion of the
petitioner and other pro se veterans ?
TABLE OF CONTENTS
Questions Presented
Table of Authorities
Statutes
Opinions Below
Jurisdiction
Statement of the Case
Nature of Case
Exposure of the V.A.'s
" Non-adversarial” Myth
Preferential Signature List
Courtesy Decisions
No Uniformity of Decisions
Norman Johnson
BVA, Chairman Kenneth Eaton
No codification of decisions
Too Many Valid Claims Denied
American Legion’s ( Wilkerson )
VFW’s Donald Schwab
Tracy v Gleason
Instant case
Cong. McEwen, HVAC Hearing
TABLE OF CONTENTS ( cont. )
PAGE #
Surreptitious Denial of Hearings 18-20
T.A. Verriil 18,19
BVA Chairman, Eaton 19,20
Intimidation of BVA Ad judicators 20-21
Dr. Alcide Pellerin 20
Norman Johnson 20
AFGE’s Pres. Kenneth Blaylock 20,21
Intimidation of NVSO’s 21,22
Gael Gompf, V.A. Official 21,22
VFW's James Magill 22
Trashing of Treating Physicians
Opinions 22-24
Dr. Alcide Pellerin 22,23
Anomymous VA Employee Letter 23
Norman Johnson 24
Instant Case 24
Lack of Judicial Review Contributes
to a Climate of Claims Abuse 24,25
SSA Abuse Orginated at the V.A. 25-27
Veterans’ Judicial Review Act (VJRA)
or Public Law 100-687 28-35
TABLE OF CONTENTS ( cont.)
Court of Veterans Appeals (CVA)
Reversed Orders of 18 month
standing without explanation
Ignored BVA Chairman’s Letter
CVA never said what development
required or issued instructions
VA's attorney's acknowledged,
they had no case
CVA took no notice of the facts
or circumstances
CVA does not accord equal treatment
to Pro Se Litigants
EX-Parte Communications
CVA never addressed six motions
pursuant to Sanctions re:
Untimely and Bad Faith filings
VA's attorneys moved into same
building as CVA
Judge Donald Ivers’s Recusal
CVA's Ruling re 28 U.S.C. 455
" Tables Graveyard "
PAGE #
35-41
35,36
36,37
37
37
37,38
38-41
38,39
39
39-41
41
42
43-47
TABLE OF CONTENTS (Cont.) PAGE #
Federal Circuit Court (CAFC) 48-58
Issues Not Reviewable 48-53
Constitutionality of VA
Claims System 48,49
Unable to Raise Issue before CVA 49-51
veree 7 Treatment of
ro Se Veterans 51
CVA's (VA) ex- parte conduct 52
CVA's (VA's) Fiagrant
Flouting of the Rules 52
Unrepresented Veterans 52
No Veteran has Prevailed
at CAFC 32,93
CVA'’s failure to exercise
control over the V.A. 53
" Tables Graveyard " Revisited 53
Summary Judgment Issue 53
Issues Addressed 53-58
Lacks Jurisdiction, even if
Arbitrary and ‘Capricious 53-55
Sustained Constitutionality of
100-687 55
Ruling Questioned 55-57
TABLE OF CONTENTS (Cont.) PAGE #
Issues Addressed ( cont.) 53-58
Recusal Issue 57°
VA's Attorneys Offices 57,58
Is P.L. 100-687 Constitutional ? 59-63
90% of Veterans Excluded 59
CVA Sits Only in Wash.D.C. 59,60
CAFC Sits Only in Wash. D.C. 60
No Attorney Representation
During Initial Stages 60
Not Much Thereafter 60
No Subpoena or cross
Examination Power 60
No Class Action Suits 60,61
Judicial Review (non-existant) 61
Public Denied Knowledge of
VA,CVA and CAFC decisions 61-63
Review Requested of Supreme Court 64,65
Conclusion 65
Signature ----
Proof of Service Res
TABLE OF AUTHORITIES
CASES Page #
Aronson v Brown, 92-561 42, (C-127)
CVA, ( 1/25/93 1
Bowen v City of New York 8,9,25,34
476 U.S. 467 ( 1986 }
City of New York v Heckler 25,34
578 F. Sune. ago (1984)
Goldberg v Kell 63
397 U.S: 254 (1970)
Johnson v Robiso 6,7,15,23
415 U.S. 361 (1974) 25,48,63-65
Marbury v ah ison, 5 U.S. 49
(1 CRANCH H) 137, 2 L.Ed 60
Marozsan v U.S. (In Banc) 24,25,29,48
852 F.2d 1469 (7th Cir. 1988) 63-65
ac v Derwinski
ose 2d Fed. Cir. (1990) 55
rossi v Liggett 42
(3rd Cir. 1993)
Schweiker v Chilick 26,27
487 U.S. 412 ( 198? )
Tracy v Gleason 16,17
379 F. 2d 469 (1967)
ayenaee v Dept. of Air Force 55
F.2d. 820,832 (Fed.Cir 1989)
IV
STATUTES
Veterans Judicial Review Act 1,28,48,
(VJRA) or Public Law 100-687 52,53,59
38 USC, sect 211 (a) [ 511 (a)] 1, 25
28 USC, sect 455 42
38 U.S.C. 3402 (a) (2) 21,22
FRCP rule #56 (Summary Judgment) 47
amma maak i
V
OPINIONS BELOW
1. Order upon a Cocinbined Petition for
Rehearing and Suggestion for Rehearing
In Banc was denied by U.S. Court of
Appeals for the Federai Circuit on
11/25/92.
( Appears on pages A-1l,2 )
i)
Decision of the Federal Circuit Panel,
was both dismissed - in - part and
affirmed - in - part on 10/9/92.
( Appears on pages A-3-13 )
3. Appellant's Combined Petition for
Reconsideration and Review (in banc)
was denied by CVA on 3/23/92
“<*
( Appears on pages A-14,15
NOTE: note of the above opionons are
citable as precedent although a public
record. The disposition thereof will
appear in tables published periodically.
Vi
JURISDICTION
Basis for Jurisdiction : Constitution
P.L. 100-687
38 U.S C.
sect.,4092
28 U.S.C.
sect.,1331
28 U.S.C.
sect. 1361
28 U.S.C.
sect. 1254 (1)
Venue: P.L. 100-687
28 U.S.C.
sect. 1391 (e)
I. Statement of the Case
A) Nature of Case
This action arises under the
Constitution challenging the V.A.'s
budgetary driven " quota system " of
Claims adjudication which denys the
appellant and other veterans ( in the tens
of thousands ) of fair and impartial
Claims consideration.
Moreover, redress of implausble VA
decisions ( simple justice ) is expressly
denied under 38 USC 211 (a), [now 511 (a) ]
which precludes judicial review,
notwithstanding enactment of P.L. 100-687,
irrespective of the circumstances.
Accordingly, VA bureaucrats are judge,
jury, Courtiof Appeals, Supreme Court, and
often attorney for both sides, inter alia.
The law of Common sense requires that no
agency ( or man ) be the sole judge of its
Own wrong-doing.
Further, the VA uses numerous
unpublished " sub rosa " policies,
practices and Procedures, the totality of
which, is violative of petitioner's ( and
other veterans') First and Fifth
amendment rights to include the right of
counsel, due process and equal protection.
Petitioner submits that unfair V.A.
practices and procedures are clandestinely
structured to cause the petitioner and
other veterans to abandon valid claims in
utter confusion, frustration and despair
Or failing in that objective, to hold
hearings and render implausible decisions
which make a mockery of impartiality and
the due process protections guaranteed
under the Constitution, relevant statutes
and case law.
Additionally, petitioner submits that
the lack of judicial review and the
meaningful right to retain an attorney
fosters a climate of unconstitutionality
resulting in impermissive V.A. practices
and procedures, evidencing flagrant
bureaucratic abuse, which clearly
demonstrate that the V.A. has run amok
with unbridaled power. !
Some specific vA policies, practices
and procedures complained of by the
petitioner, which in their totality are
unlawful, as clandestinely implemented,
are as follows:
1) Budgetary " not fact driven " quota
decisions employed when adjudicating
Claims (Appendix:C-50, C-84,88,89 )
2) Lack of an independent decisionmaker.
(see Appendix: C- 51 )
3) Questionable medical evaluations
performed by intimidated VA physicians,
some at the rate of one per minute; also
refusal to sanction independent medical
opinions. (Append: C-21;C-56,57; C-83,84)
4) Treating physician or expert medicai
', Lord Acton: "“™ Power corrupts,
absolute power corrupts absolutely."
opinions rendered in behalf of veterans
are routinely trashed by the VA's general
practitioners. ( See Appendix: C-53 )
5) MRI's, cat scans, x-rays and other
diagnostic tools are deliberately misread
in order to obtain results contrary to the
facts in conformance with the VA's hidden
budgetary agenda. (App: C- 119 )
6) Facts are deliberately distorted to
support decisions devoid of reason. See
BVA decision ( C-120 ) re travel to D.c.
via AMTRAK which disqualified petitioner
from obtaining 100% unemployment benefits
despite the unambigious statements of four
Doctors, accompanied by mri's, cat scans,
x-rays, inter alia. Inexplicably, two of
the Doctors were employed by the vA
7) Hearings are often covertly denied
veterans. ( Appendix: C-58,59; C-60-65 )
8) Veterans lack subpoena or cross
examination power needed to compel the vA
to confront the facts or its errors.
9) Different treatment is accorded
Similiarly situated veterans, by the VA,
depending upon but not limited to the
congressional district or state of
residence, who represented them, and
the abject failure of VA to codify its
decisions which contribute to a lack of
uniformity.App:C1-4;5-8;42,43;79-84;94-97
10) BVA decisions are subject to
productivity quotas requiring decision
makers to render between 40-80 decisions
per week. The emphasis is placed upon
denying claims, since it's easier to deny
than approve claims. App: C-13-15;C-106, 107
11) To meet unrealistic productivity
decision quotas of 40-80 per week, the
adjudicators with the full knowledge and
consent of their Superiors, resort to
" courtesy decisions ", or Signing off on
Claims never read, and in the process
thereof, denying veterans the full due
process consideration they are entitled to
under 38 U.S.C. (App: C-9-15;C-104-110)
12) BVA allowance rates,thought for over
20 years to be at 13 %, are considerably
less, perhaps within a 4-6 % range. C-9,10
13) The VA engages in the premature
denial of claims. (See appendix: C-18-20 )
14) Lack of due process as evidenced by:
( Appendix: C-33-35 (par 14,15,17); C-36-
39 (par. 18,19,22-24) ;C-70-75; C-76-84;
C-104-110; C=-111-115; C-116-118 )
15) The VA practices intimidation in order
to obtain the goals demanded by the Office
of Management and Budget. C-40-43:c 44-46;
C51;C68,69;C116-118;B-3,38 U.S.C. 3402(a)2
16) This Court in gohnson v Robison
relied upon the VA's assurance that it had
achieved a degree of uniformity which the
Courts could not duplicate, and conseq-
uently, premised a portion of its ration-
ale when upholding the constitutionality
of 38 USC 211(a), on that false represent-
ation. Appendix: C-5-10;C-79-84; C 111-115
17) This Court in Johnson v Robison
further premised its rationale for
upholding the constitutionality of 211 (a)
on the VA's assurances that it could
adjudicate technical and complex veterans
claims better than the Courts. That too
was false. ( See Appendix C-10-12;C-21;
C-32-39 (par 15,17,18,19,22,23,24);
C-47-55; C-82-84; C-107,108; C-118 ).
In sum, the VA can do whatever it
pleases, whenever it pleases, unhindered
by judicial review, or the procedural
safeguards imposed upon other agencies.
Further, absent meaningful Congress-
ional oversight, absent the interest of
the press, absent the active participation
of the legal profession ( $ 10 fee
limitation and other deficiencies ),
absent the protective umbrella of the
NVSO's, who have betrayed their own
members'interests on the alter of
government largesse - is it any wonder,
that the VA has run amok with unbridaled
power ? ( see Appendix: C- 22-26; 27-31 )
Additionally, judicial cognizance must
be taken of what prompted the SSA
bureaucrats in Bowen v The City of New
York to employ the unlawful practices
this Court so eloquently ruled against in
Bowen. Said unlawful practices originated
from the VA bureaucrats success in depriv-
ing veterans Surreptitiously of their
disability claims by rendering implausible
decisions, contrary to the facts, in
conformance with the requirements of the
Office of Management and Budget.
Likewise, judicial cognizance must be
taken of the several safeguards prevalent
in Bowen ( SSA ) which are missing at the
VA. Importantly, SSA recipients have a
large block of attorneys banded together
in an organization called NOSSCR, whose
members routinely practice before the SSA;
no such organization exists re veterans
representation. The SSA is required to
get their decisions thru ALJ's and State
Agencies; not so at the VA, who hold all
the cards and its adjudicatory personnel
hostage to advancement, demotions, bonuses
and unrealistic productivity goals. Also,
social security recipients have judicial
review, expressly denied veterans.
The foregoing explains why the unlaw-
ful practices of the SSA were discovered
within a relatively short time whereas
those pertaining to veterans remain to be
disclosed 60 years later - and only if,
this Court will allow litigation of the
unconstitutional treatment accorded
veterans' claims.
It also explains why, petitioner has
more evidence before discovery than Bowen
had after discovery. Moreover, there are
literally thousands of conscience stricken
VA employees and National Veterans
Service Officers ( NVSO's ) ready to spill
10
their guts - if only, someone would ask
them a question. So far no one's asked.
B) The VA's " Non-Adversarial "| Myth
Numerous judges in other cases ( including
this Court ) have referred to the VA's non
adversarial system in overly respectful
and reverential tones without any factual
understanding of what it is, and what
damage is being done to the social compact
between the American people and its
citizen-veterans. The facts are that both
the American people and the Courts have
been hoodwinked into believing that the
System is fair to veterans; and that the
nation's pledge to its veterans, their
widows and orphans is being honored.
Unfortunately, nothing could be further
from the truth as the facts will clearly
demonstrate.
What if you were injured in the Army,
but were denied benefits on the pretext
11
that you had a prior service injury; but
none had occurred and no evidence was
forthcomimg that it had - but
nevertheless, the denial persisted for
over thirty years without the possibility
of judicial review - would you think that
was non- adversarial ? ( C-121,122 )
Then, what if, you had finally overcome
that prior service injury hurdle and now
proceeded to document the extent of the
injury via the use of medical experts
( both within and without the VA )
incorporating x-rays, mri's, cat scans,
inter alia - and then, a VA doctor, with
no special orthopedic expertise
deliberately misread the cat scan so as to
obtain a different result and thus
continue the denial ? And then, when
confronted with the intentional misreading
- the VA " doctor " acknowledged the
facts, saying that:
" I can't write down what I told you. It
12
would make the whole orthopedic
department look bad since we refused you
a cat scan for 6 1/2 years and
misdiagnosed you ! " ( C=-119 )
Is that consistent with the actions of a
non- adversarial system ?
Additionally, what if those previously
cited hurdles, some 37 years later were
all removed, but now the BVA reasons that
Since the petitioner was able to come to
Washington, D.C. via Amtrak with the aid
of a tens unit ( in great pain ) that his
injury didn't render him unemployable
despite the professional opinions of four
expert orthopedic doctors (2 from the VA)
that the petitioner could not work.
( C-123,124 ). A cursory visual
examination by the BVA panel was all that
was required to trash the professional
opinions of four treating physicians. Do
those actions comport with the perception
of a non adversarial system ?
Throughout all of the above, Petitioner
was never permitted to confront or
“a
13
question VA assertions or theories or
creative denials. Never once was petit-
ioner allowed to subpoena or cross examine
VA employees pursuant to any of their
deliberate falsehoods. Meanwhile, the VA
carried on a secret war against the
petitioner and other veterans in deference
to the budgetary constraints imposed by
the Office of Management and Budget. Co-
inciding therewith, petitioner was denied
access to the courts, rendering him help-
less to combat what the VA practiced in
secret and dared not expose to public
examination. For example :
1) Preferential Signature Lists
A secret list was developed by BVA
Chairman Eaton composed of 12 influential
Congressman and Senators ( either on
Veterans' Affairs Committees or occupying
significant leadership roles in Congress )
whose constituents were singled out for
preferential treatment to the detriment of
14
other Similarly Situated veterans. (C-1-4)
2) Courtesy Decisions
BVA adjudicators’ Practice of signing off
on decisions without ever reviewing the
facts thereof in order to fulfill BVA
Chairman Eaton's productivity requirements
Of 40-80 cases per week. Failure to meet
such requirements, would render BVA
adjudicators ineligible for bonuses and/or
advancement. ( C-106,107 )? ( C-10,11)
3) No Uniformity of Decisions
a) Norman Johnson, a former pva employee
testified that " case decisions were
haphazard, unfair and probably illegal "
and were " decided on differing grounds,
and for reasons not contemplated by the
laws and regulations. " ( C-80 )
b) BVA Chairman, Kenneth Eaton,
acknowledged before the House Veterans
Affairs Committee : Yes indeed it is
quite true that there is what I might say
is a significant variance
15
between different sections of the Board
and how they see these cases. " C-112,113
Chairman Eaton further acknowledged that
"you can have equal cases, identical,where
one will get more than the others. " C-113
c) No codification of BVA or Regional
office cases which further contribute to a
lack of uniformity.
Based upon all of BVA Chairman Eaton's
testimony he couldn't get uniformity
within the same building, on the same
floor or within the same room, much less
throughout the United States. But that
didn't prevent the VA from hoodwinking
this Court re Johnson v Robison 415 U.S.
361 (1974) into accepting the VA's blanket
assertion that only it could achieve
uniformity of decision making whereas the
courts could not.
4) Too Many Valid Claims Denied
a) Philip R. Wilkerson, Ass't National
Director for Claims ( American Legion )
16
testified before the House Veterans'
Affairs Oversight subcommittee hearing,
99th Cong., lst session, 10-11.( 1985 ),
at page 40 thereo’. that:
are being denied by the regional offices,
and the denials are Subsequently confirmed
by the Board of Veterans Appeals."
b) Donald H. Schwab, national Legisla-
tive Director for tne VFw testified that:
c) Tracy v Gleason, 379 F 24 469 (1967),
a case ( inadvertently ) decided by the
U.S. Circuit court Of Appeals, D.C.,
evidences far better than any
Congressional testimony, how unfairly the
VA treats its veterans. Ina blistering
condemnation of the VA, the Court held:
" In our opinion the complaint tells a
story of arbitrary and Capricious action
on the part of the Officials:™
" a) the Administrator acted arbitrarily
17
So eae
in the circumstances when he terminated
the pension of Tracy because that
unfortunate, totally disabled by insanity,
had failed to return an income
questionaire; "
" b) The Board of Veteran Appeals acted
arbitrarily in affirming the termination
after it had learned the facts;"
"c) The Administrator acted arbitrarily
in failing to make payments for the full
period of discontinuance after he had
been told what he should have known
before: That George Tracy was insane
and was totally and permanently disabled
in 1949 and continuously thereafter. "
Petitioner would make one more point - How
could the " Justice " department have even
defended the action once the facts were
known. Has it no responsibility to the
American people and its veterans !!?
d) And what about this case. Also what
about the thousands of veterans who have
lost arms, legs and eyes in combat who
have received little or no compensation
while the VA can not be brought to
account.
e) Cong. McEwen, Chalring an oversight
Committee hearing on Oct.4, 1990, on page
18
11 thereof, remarked :
" I'm just asking, what do I do ? When I
know this is taking place, and the VA has
its folder here that says the guy can run
in the Olympics, and he's sitting here in
front of me and he's crippled, three times
it says the guy's fine. What do I do
about that ? "
Indeed what can he do ? Absolutely
nothing ! And if a Congressman sitting on
the HVAC can't do anything, what can a
powerless veteran do, no matter the
circumstances or the evidence ?
5) VA Surreptiously Denies Veterans’
Hearings.
a) Mr. T.A. Verrill, Adjudication
Officer, San Francisco, VARO, wrote a
letter on April 20th to his section chiefs
advising his subordinates: " Although VAR
1103 permits a hearing anytime on any
issue, we do not have the resources to
operate in this way." "... We can always
explain why a hearing is not appropriate
at a particular stage in processing. "
19
eccccecnn I know you are aware of these
points but the appellant isn't. " C-58,59
b) BVA Chairman Eaton testified before the
U.S. Senate re traveling board hearings
that " because of the limited number of
such traveling board Section hearings, the
BVA did not routinely tell claimants about
this option."
According to Mr. Eaton :
" the traveling board hearings are
scheduled by giving veterans' service
organizations a certain number of
hearings, and allowing the service
officers to designate who receives
ahearing. " ( C-62,63 )
When asked whether there is a quota, Mr
Eaton replied: " In effect it has to be
that way. " (C-65)
Under the circumstances poor veterans
were denied the opportunity for a hearing
Since they lacked the resources to go to
Washington D.C. and were kept ignorant of
their option to appear at traveling board
hearings conducted in their own home
locales. Moreover, those veterans, not
represented by service officers never knew
20
or had a chance to particpate in that
option either. How fair was that, in view
of the fact that veterans chances for
success were far greater if they were
present at hearings ? ( C-64 )
6) intimidation of BVA Adjudicators
a) Dr Alcide Pellerin ( a former BVA
adjudicator) testified before the U.S.
Senate advising that he was coerced on
numerous occasions into rendering decis-
ions contrary to the facts and his own
professional opinion, inter alia. (C-51)
b) Norman Johnson, another BVA employee
also testified that he was likewise
intimidated and that agency decisions were
unfair. ( C-77; C-83,84 )
c) Kenneth T. Blaylock, then National
President of AFGE, ( 116,000 VA members )
testified bofore the House Veterans
Affairs Committee
"It appears to us that large numbers of
veterans have not received the benefit of
reasonable doubt on any consistent basis."
21
" The informality of the Veterans
Administrations appeal procedure combined
with the absence of precedence in the
disposition of cases, leaves wide
discretion for inconsistent and
uncontrolled decision making by the
regional offices. In the absence of court
review, there is no effective
institutional check on arbitrary or
impermissable action. " ( C-73 )
7) Intimidation of National Veterans’
Organizations ( NVSO’s )
a) When it appeared that judical review
might pass the Congress, the VA's Gael
Gompf wrote her famous blackmail letter
which intimidated the major NVSO's into
abandoning recently held positions in
favor of judicial review. That letter,
contained in part, the following:
" Moreover, many special considerations
currently extended to veterans service
organizations may have to be curtailed.
The providing of VA space and facilities,
informal access to adjudicatory personnel,
etc., could be affected by judicial
oversight and increased representation by
private attorneys. " (C-42)
And there was much to fear in view of the
infamous 38 U.S.C. 3402 (a)(2 ), (1979),
22
which mandated:
" The Administrator may, in his discretion
furnish , if available, space and office
facilities for the use of paid full-time
representatives of national organizations
SO recognized. " ( B-3 )
That space and those office services
equal tens of millions of dollars in
gratuities or donations. Further, that
Space provided in every single VA facility
is essential to obtaining membership and
to promoting the NVSO's prestige.
b) James M. Magill, vrw pirector of
National Services, acknowledged in a
written letter to then, Senator Alan
Cranston, that he was indeed intimidated
by the VA's threat to discontinue provi-
ding free office space and services C45,46
8) Trashing of Medical Experts’ Opinion
Favoring Veterans
a) Dr Alcide Pellerin ( former Bva
Adjudicator ) testified before the U.s.
Senate that implausible medical decisions
contradicting those of world famous
physicians are rather routine.
“ In contrast, should the veteran
submit an opinion from a board certified
specialist, say from some institution
like the Mayo or Lahey clinic, the
Arthritis Foundation or the Georgetown
Medical Center, that only serves to
reopen his case, and is considered as
trash by the VA. " ( C-53 )
b) Deep Throat Letter # 1. An anomymous
VA employee whose information was later
validated by a U.S. District Court located
in San Francisco wrote:
" In order to operate at reduced
staffing, many regional offices no
longer employ full time doctors for the
rating board. Instead a part-time doctor
is borrowed from a local medical center
one to two times a week to sign his name
to the accumulated rating decisions.
may spend one minute or less on each
decision. " ( C=-21 )
Under such circumstances how much
technical medical expertise was employed,
if any ? Yet the VA argued in Johnson v
Robison, that only it could make the
difficult, technical medical decisions
required in veterans' disability claims.
Unfortunately, not a single shred of
evidence can be found in support thereof.
The VA simply lied to this Court.
He
24
c) Norman Johnson (former BVA Adjudicator)
testified before the U.S. Senate re serv-
ice connection for a black Korean veteran:
" The elements of the case were clear -
his induction physical examination report
indicated normal feet. The separation
physical indicated " pes planus " or flat
feet, not an usual development over the
course of Army service and one that can be
painful anbd limiting for all of the jokes
that are made of it. " The facts and the
law were clear, but the decision was
returned to me with instructions to deny
the claim.
" ..--. I asked the section chairman
why the decision was to be a denial. He
explained that it was because the veteran
was black and all black people eventually
get flat feet. It was a " racial
characteristic " ! ( C-83,84 )
d) Petitioner Bernklau’s medically false
cat scan reading ( Supra page 11,12 )
9) How the lack of judicial review
contributes to a climate of veterans
claim abuse.
The lack of judicial review has emboldened
the VA to treat veterans worse and worse.
In Maroszan v U.S (in banc), 852 F.2d.
1469, (7th Cir, 1988) the VA in open
23
Court argued that even if veterans were
denied claims solely on the basis of race,
color and gender, that the Courts lacked
jurisdiction pursuant to 211 (a) to even
review such clearly unconstitutional acts.
Thereafter, asserting that 211 (a)
mandated that it was none of the Court's
business. Moreover, the VA's argument was
demonstrably at variance with the U.S.
Supreme Court's holding in Johnson v
Robison which specifically permitted
attacks on the constitutionality of the VA
claims system.
10) Bureaucrats Abuse of Social Security
Recipients Originated at the VA.
Bureaucrats reasoned that if they could
treat veterans in such shabby fashion, why
not. social security recipients. This
Court should recall that in City of New
York v Heckler, 578 F. Supp. 1109 ( 1984 }
which culminated in the unanimous Supreme
Court decision in Bowen v The City of New
P '
26
York, sustaining the City of New York,
in its allegation of unconstitutional
claim treatment accorded mentally impaired
recipients. These recipients were
callously removed from the Social Security
rolls without rhyme or reason in deference
to the Office of Management and Budget.
Further, this Court should remember what
U.S. Sen Cohen said in Schwieker v
ic 7U 7 :
“ The message received by State Agencies,
swamped with cases was to deny, deny,
deny, and, I might add, to process cases
faster, and faster, and faster. In the
name of efficiency, we have scanned our
computer terminals, rounded up the
disabled workers in the country, pushed
the discharge button, and let them go into
a free fall toward economic chaos. " At
416.
Other legislators reached similar
conclusions. U.S. Senator Moynihan said:
" The Social Security Administration has
tried to reduce program cost by
terminating the benefits of thousands of
those truly disabled. " At 416.
Congressman Rostenkowski alluding to a
" massive number of beneficiaries who have
lost their benefits over the last three
years even though they are truly disabled
and unable to work. " At 416.
27
" The Social Security Administration
itself apparently reported that about
200,000 persons were wrongfully
terminated, and then reinstated, between
March 1981 and April, 1984. " At 416.
" The unnececessary suffering, anxiety,
and turmoil - has been graphically exposed
by dozens of Congressional hearings and in
newspaper articles all over the country. "
At 417.
Petitioner submits that the Social
Security scandal arose out of the
unconstitutional treatment accorded
veterans. Why doesn't this Court know
about the veterans scandal ( VETGATE ) ?
Simply put, Veterans lack the right of
judicial review while the ten dollar
attorney fee limitation still casts a pall
over veterans' claim representation.
Moreover, the leadership in the major
veterans organization have betrayed their
own members in deference to the VA
Secretary's discretionary power to remove
largess aggegating $10 million of free
space and office services.( 38 USC, 3402
(a) (2)) or (B-2), C 40-43, C-44-46.
28
C. Veterans Judicial Review Act of 1988
Or ( VJRA )? was enacted primarily to
provide veterans with judicial review of
VA claims decisions, heretofore denied
them, for over one hundred years. Many
veterans' organizations had alleged that
numerous VA decisions were " implausible "
motivated by budgetary, not fact driven
considerations - and consequently, held
hostage to the fiscal restraints imposed
by the Office of Management and Budget.
Likewise surfacing, were allegations of a
self- serving bureaucracy concerned more
with personal advancement, productivity °
2 Now known as Public Law 100-687,
Since its prior name " Veterans Judicial
Review Act " was clearly inappropriate,
being totally devoid of judicial review.
3. To obtain bonuses, BVA personnel
were required to meet unrealistic goals
requiring them to render 40-80 decisions
per week. In order to reach said goals,
BVA adjudicators resorted to ™" courtesy
decisions " a practice, wherein other BVA
members signed off on decisions never
read, and which were later reciprocated,
on a quid pro quo basis.( C- 10,11 )
29
and administrative bonuses than rendering
professional, fair and impartial decisions.
Additionally, congress was galvanized
into action when it learned that Justice
Department attorney's were arguing in
Marozsan v_ U.S. ( en banc ) 852 F. 2d
1469, ( 7th Cir, 1988) at 1478, that the
Courts lacked jurisdiction to review V.A.
decisions, under 38 U.S.C., section 211
(a) - even when, the V.A. denied claims
solely on the basis of race, color and
gender; and that the V.A., could not be
" CALLED TO ACCOUNT FOR ANY METHOD IT USES
IN ADMINISTERING VETERANS’ BENEFITS LAWS,
NO MATTER HOW EGREGIOUS "
Favoritism, implausible decisions and
evidence that the VA claim system had run
amok’ with unbridaled power were
4. Special consideration accorded
constituents of influentialCongressman.
Preferential signature list ( C-1-4 ).
Implausible decisions (C49-51;C83,84;87,88)
30
demonstrated in numerous Congressional
hearings. Accordingly, Congress could no
longer hide behind that old bromide: ™"™ if
the system ain't broke, don't fix it ? "
Now Congress had to fix it, or become
irrelevant to the Court process which was
moving inexorably toward declaring 211 (a)
unconstitutional re: Marozsan, inter alia.
However, a funny thing happened on the
way to the bill's enactment. Literally,
in the middle of the night, and without
‘public imput - an article I Court was
established, which sits only in
Washington, D.C.; approximately, 90% of
all veterans were statutorily excluded
from the benefits thereof ( assuming there
were any ), if their claims were finalized
prior to November 18, 1988; impossible
conditions were imposed, which continue to
deny veterans access to the courts and
attorneys ( 70 per cent of veterans are
represented pro se - the rest, largely by
31
attorney's they've never met ). Most
however, intimidated by the process,
unable to secure the services of an
attorney, merely abandon their claims.
Moreover, the local public and press for
all intents and purposes, are excluded
from the process considering the distances
and secrecy involved in veterans
adjudications. Not a single veterans’
case or its outcome has been reported to
the local citizenry. Not a single
newspaper has anyone assigned to the VA or
the CVA court; and wouldn't know where to
go, if assigned.
Unfortunately, no one seems to care,
while veterans endure a new tyranny worse
than before. Hope, which was initially
promised has been all but extinguished,
while the pledge of a fair and impartial
hearing remains more elusive than ever,
hopelessly mired in chicanery and
bureaucratic red tape.
32
The new CVA court acts alone or in
concert with the Secretary ( ex parte )
rendering Kafka-like decisions which defy
all logic or reason. Its record is a
dismal one. Of the 6000 claim actions
pursued, it appears that CVA has rendered
favorable decisions in 50, or less than
1%, three years after the laws enactment.
It further appears that none, save one,
involve any real money. In that instance,
the widow was represented by Morrison and
Foerster, the prestigious San Francisco
law firm. ( Neither CVA nor Westlaw will
confirm or deny these numbers )
Although another veterans " lost cause "
Claim matters little, respect for the rule
of law and fairness matter much. Men have
given their lives for this concept - and
none more so than Veterans who perceive
little to respect in either the VA claims
adjudication process or the CVA's’” review
thereof.
33
Claims in the tens of thousands have
been routinely denied by the VA under one
pretext or another for decades. [In all
this time, no article III Court has looked
into the VA's " implausible " decisions
based on " budgetary, not fact driven "
considerations, nor has any court
examined the practices employed which
cause thousands of veterans to abandon
valid claims in utter frustration and
despair.
Under the circumstances, isn't it time
that an article III court examine the
constitutionality of the VA's claim system
and its CVA appendage ? Heretofore the
Courts have traditionally occupied a
" resolution of last resort " role when
all other options failed. That's what the
founding fathers intended. Now is such a
time, when this Court should exercise its
inherent power to review ( or cause to
examine ) a claim adjudication
34
system which is the shame of a nation.
The instant action, while not the most
egregious, does reflect a systemic pattern
of abuse, which if, the court conducts a
detailed review thereof, will come to
understand how a secret war is being waged
against defenseless veterans under the
guise of a " non adversarial" system. That
system's sole purpose is to render
budgetary decisions in deference to the
Office of Management and Budget; just like
the infamous social security cases 5
°. City of New York v Heckier, 578
F. Supp. 1109 (1984); Bowen v City of New
York, 476 U.S. 467 ( 1986); and their
numerous progeny. In Heckler, the Eastern
District Court found at 1115, that "
evidence of a fixed clandestine policy
against those with mental illness is
overwhelming. " Moreover at 1115,
" Evidence at trial revealed that this
covert policy was followed consistently
from 1978 until at least the early months
of 1983. " Further at 1124, the E.D. Court
found that " physicians were pressured to
e S sion fe) to their own
professional beliefs..... " ( Emphasis
added ) Similar Congressional testimony is
available in veterans cases. (C-51,83,84)
Bb
involving similar, if not identical
bureaucratic abuse.
D. Court of Veterans Appeals ( CVA )
( the myth of judicial review or any
semblance thereof )
After being mistreated by the VA since
1955, and a file three feet thick to
evidence that fact, the petitioner decided
to take advantage of the new VJRA law.
Unfortunately, congressional intent to
provide some judicial review was analogous
to being a little bit pregnant. Only no
evidence of pregnancy could be found; not
even a modicum thereof or equal treatment
or fairness anywhere.
What transpired at the CVA during
petitioner's appeal was clearly out of
Ripley ( Believe it or Not ) or Franz
Kafka. For example :
1) The CVA after issuing orders over an
36
eighteen month period (contrary to
numerous VA motions), ruled that
petitioner's case was properly before the
Court. Thereupon it reversed itself,
without explanation and remanded this 37
year old fully documented case for further
development.
2) Curiously, sBva chairman Kenneth Eaton
agreed with the petitioner and wrote on
5/1/90 via first lady Barbara Bush that
"In short, it is my opinion that the
April 4, 1990, appellate ( BVA ) decision
denying you entitlement to a total rating
was based cn sound legal, evidentiary and
medical principles. " ",... fT can assure
you that your claim was carefully analyzed
by the Board Members so as to accord you
every consideration." (Emphasis added) B-125
Inexplicably, the cva completely
disregarded BVA Chairman Eaton's letter to
Mrs. Bush indicating that the VA had done
its job well and had leaned over backwards
to accord the petitioner every considera-
tion employing the terms " sound legal,
evidentiary and medical principles. "
|
37
Nevertheless, cvA remanded said case,
without plausible explanation, back to the
BVA for additional development, and
without further instructions.
3) What further development ? None were
enumerated, nor could any be divined.
other than, the VA simply had no defense.
4) In fact the vA's attorneys admitted as
much in their motion for remand of
(8/28/91 ) when they acknowledged that
the: " BVA did not point to anything in
the record to support its view, ..... 7
Moreover, the remand motion further stated
that it required the BVA to explain " its
reasons or bases for rejecting the
assessment of four private physicians ® to
the effect that the veteran is " totally
disabled " or unable to work, ...... "
5) No notice, was taken of the fact that
6
- Two of the four private physicians
referred to worked for the V.A. Besides
there were many more private physicians
rendering opinions in petitioner's behalf.
38
these four private physicans' statements
were before the BVA and its Regional
offices, on three prior occasions without
being meaningfully addressed. Now the BVA
wanted still another bite at the apple,
which the CVA granted without addressing
petitioner's brief and reply motion
objecting to the remand. It was, as if,
neither the petitioner nor the facts or
the circumstances thereof mattered.
6) But there was more, much more which
this Court should consider regarding
fairness and equal treatment of pro se
litigants at cva.
a) During saia litigation, the VA was
discovered engaging in ex parte
communications apparently with the cCVA's
tacit consent.
b) It seems, pursuant to one the VA's
innumerable requests for an extension of
time, the VA's attorneys unintentionally
( mistakenly ) furnished the petitioner
;
5
z
4
a
k
A
4
3
0 by biltwne «
ae
a
5
‘
a
i
39
with a copy of its motion dated 7/22/91,
which shockingly revealed the following:
"As Appellant is proceeding pro se, he
has not been contacted regarding this
motion " (Emphasis added)
c) The VA was continually late in
Supplying information on a timely basis
( sometimes on any basis ), repeatedly
flouting CVA's rules by failing to file
timely motions, while others were spurious
and frivolous. As a consequence, the
petitioner filed at least six motions
requesting sanctions, none of which the
CVA meaningfully addressed.
d) Petitioner car. only speculate, as to
why sanctions were never imposed upon the
V.A., the CVA could hardly have sanctioned
the VA Secretary while it was secretly com-
municating and/or conspiring to break its
Own rules behind the petitioner's back |!
e) In the truth is stranger than
fiction category, the V.A. not content
with all of its obvious advantages:
40
attorneys v pro se litigants, proximity to
the Court of Veterans Appeals, practicing
in a complicated area of the law’ in which
only they had expertise, inter alia,
decided that those advantages simply
weren't enough, it needed more.
So what did the VA's attorneys do ? Why
they moved into the same building occupied
by the CVA so they could cummunicate ex-
parte on a more secure basis, over lunch,
social occasions, in the bathrooms or over
coffee, inter alia. Besides, that would
remove the post office " middle man ",
thereby cutting down on its own tardy
7. Chief Judge Nebeker, in an
interview published by the DAV, June 1991,
said: ™"™ Bar associations have taken the
position that veterans law is such a
highly technical speciality that lawyer's
aren't competent to handle it. I can
appreciate that. Lord knows, I'm still
getting acquainted with it. "
Also, in response to the question of why
so few veterans are represented by
attorneys, replied: " One reason is that
with the $ 10 limit on lawyer's fees,
there hasn't been any crossing of the
threshold by lawyers.
41
motions or briefs by two or three days.
7) Recusal of CVA Judge Donald Ivers
Ex VA General Counsel, Donald Ivers,
confirmed in a Congressional hearing, more
akin to a coronation - than a confirmation
- was forced to recuse himself from the
panel, in this case, on the grounds that
his own conduct while General Counsel and
his own testimony before the Congress dis-
qualified him to sit in judgment thereof.
VA's General Counsel Ivers had often
testified before Congress that veterans
were not entitled to due process since
their war related injury payments were
nothing more than gifts; that the VA
needn't explain its decisions, or assist
them in the development of their claims.
Moreover, that attorneys weren't necessary
since the entire procedure was ™ non
adversarial ". Further, despite knowledge
of the VA's bag of "dirty tricks" directed
against veterans, did nothing about it.
42
Although Judge Ivers recused himself in
petitioner's case, he has since refused to
do so in other cases despite similar
grounds. In this, Judge Ivers is supported
by Chief Judge Nebeker who unequivocally
states that under 28 USC 455, that the
only one who can cause a judge's recusal,
is the judge himself ! ® ( Aronson v
Brown,92-561 ) (CVA) ( C-126 )
Obviously, that pronouncement sets the
law of recusal back to the days before
Magna Carta. Mind boggling ! But that's
exactly what veterans have to contend with
pursuant to a series of outrages, relating
to what passes for justice at CVA.
Accordingly, isn't it time some article
III court interceded in behalf of the
disabled veterans who have been
8. Recently, the U.S. 3rd Circuit
Court of Appeals, removed District Court
Judge H. Lee Sarokin in the Rossie v
Liggett case because he could not offer
the required appearance of impartiality.
43
victimized by this cruel hoax of a " non
adversarial" adjudication system whether
it's in the guise of the Court of Veterans
Appeals, the VA, or some other
bureaucratic self serving boondoggle !
8) Upon completion of the adjudication
process, CVA consigned the instant matter
to what. is commonly termed the " tables
graveyard ", which means that Westlaw did
not publish what transpired therein,
except for notification in its " Veterans'
Appeals Reporter ". Meaningful
publication therein was not deemed
necessary by CVA because nothing
noteworthy has occurred.
Consequently, the veterans community was
deprived of the knowledge that:
a) Judge Donald !vers had been forced to
recuse himself.
b) CVA was reluctant to impose
sanctions upon the VA, no matter the
circumstances while punishing veterans
at
upon the slightest provocation. Moreover,
that six motions for sanctions involving
contempt, obstruction of justice, untimely
filing, frivolous and in bad faith motions
to include the totality of its failure to
comply with CVA's rules, orders, inter
alia, were never substantively addressed.
c) VA attorneys had covertly moved into
the same office building occupied by CVA,
without any notification thereof to the
veterans community. In fact, retaining
their old address for mailing purposes so
that no one would be the wiser.
d) CVA and the VA's attorneys haa
engaged in ex-parte communications, the
extent of which remains to be determined.
e) CVA had reversed its prior orders of
18 months standing to accommodate the VA's
admission that it had no basis to contest
the case and needed more time to explain
why it hadn't addressed the professional
opinions of four treating physicians ( two
45
from the VA ) on three prior occasions.
f) CVA was unable or unwilling to
explain itself regarding denial of
petitioner's well grounded motion for
summary judgment. Conjecturally, CVA may
believe it has no authority to rule on the
issue of summary judgment when it favors
veterans - only when, it favors the VA.
However, no veteran has had his motion
for Summary Judgment affirmed, while the
VA, has had its motions for throwing
veterans' cases out on the slightest
technical or procedural violation approved
forthwith by the thousands.
Meanwhile chief Judge Nebeker, ( DAV
publication of June, 1991 ) was throwing
the entire blame for veterans continually
losing on their inability to obtain
counsel and the technical complexity of
veteran's law. He said:" the unrepresented
veteran doesn't have a-chance ". (C-126 )
46
True enough, but there is much more
here, which remains hidden from view - and
which, only light, the great disenfectant,
can expose so that disabled veterans may
at iong last obtain their constitutional
right to a fair and impartial hearing.
There was much more that future CVA
litigants needed to know before pursuing
their remedies, but alas, none of it was
deemed important enough to publish. After
all, who's the loser ? Just veterans.
To recapitulate: a) the matter had
been litigated since 1955; and with
substantially greater intensity over the
past five years. b) Four treating
physicians ( two of whom worked for the
V.A. ) had advised that the petitioner was
unable to work " unemployable" due to
injuries sustained while a member of the
armed forces c) These opinions were
Supported by x-rays, cat scans, mri's,
inter alia. d) BVA Chairman, Eaton
Se i Ora Tee ae en re Ce ote eek ee
en
)
i
acknowledged that its review thereof was
" based on sound legal, evidentiary and
medical principles ". e) The VA's own
attorneys before CVA admitted that the:
" BVA did not point out anything in the
record to support its view ".
Under the circumstances, what more was
needed to obtain Summary Judgment, under
FRCP rule # 56 ? If ever, an issue was
ripe for Summary Judgment, it was this
one. Yet petitioner couldn't get it.
Why ?
Simply because, it would cause havoc by
gaining publication thereof, and point the
way ( set unwelcome precedents ) for
veterans to obtain similar judgments.
Moreover, it would expose the V.A. to
public ridicule and scorn, further
damaging the myth of its "non adversarial"
Claims systen.
48
E. ni tates Court of Appeals
For The Federal Circuit
Thereupon petitioner pursued his legal
remedies to the U.S Court of Appeals for
the Federal Circuit Court which likewise
ignored and/or failed to address the facts
or the issues presented for its review -
and/or in the alternative, acknowledged
that it was lacking in jurisdiction to do
So.
1) Issues Not Reviewable by the Court of
Appeals For the Federal Circuit
a) The Federal Circuit did not
meaningfully address whether the law, P.L.
100-687, creating its new jurisdiction
permitted it to entertain attacks on the
constitutionality of the VA claims system
as held in Johnson v_ Robison and in
Marozsan v the U.S. ( en banc )
49
b) The Federal Circuit apparently
declined on the grounds that this issue
had not been raised heretofore in the CVA.
Petitioner explained that he was
precluded from doing so, in view of the
fact that only Article III courts have
jurisdiction over constitutional matters,
as decided under Marbury v Madison.
Therefore petitioner had no standing to
raise the constitutional issue in CVA, an
Article I court, nor did said court have
jurisdiction over the matter.
Additionally, petitioner made plain that
if the constitutional matter were brought
up in CVA, it couldn't be accepted there
unless it was initially brought before the
VA's Regional Office, then the BVA, and
thereupon to the CVA. Even so, among the
forgoing, who even then, had the
authority to rule on the constitutionality
of the law or the unconstitutional claims
treatment accorded veterans ? No one !
50
Unless this was a bureaucratic make-
work project or an exercise in futility,
the Federal Circuit's ruling that the
matter must be brought before CVA, failed
to address the circumstances under which
such a ruling could be met.
The inescapable answer is that no one of
the adminstrative agencies, or even the
Article I court ( CVA ), has the power to
render statutes unconstitutional when
enacted by Congress. Moreover, where
shall redress of Constitutional wrongs
perpetrated by the agencies or
instrumentalities of the government be
brought ? Shall they be brought before
the same people perpetrating those
wrongs !!? Petitioner thinks not.
Under the circumstances, it's a real
conundrum. No wonder the Federal Circuit
refused to answer, but this Court must, or
this issue will continue to remain in
limbo, in a veritable 3urisprudential
OO
LN A weld eal aa
|
"no man's land " where so much of
veterans law has settled for Parnes a
century without meaningful review - and
unfortunately, upon a seriously flawed
factual basis.
From petitioner's vantage point, it's
time to revisit this issue de novo, at
U.S. District Court level. Congress may
pass laws, but it's clearly up to the
Courts to determine what they mean, and
what is constitutional.
Accordingly, where does petitioner start
his constitutional action, in the District
Courts ? In the VA's Regional Offices ?
Elsewhere,in the BVA, or the CVA ? Where ?
No further response could be obtained
from the Federal Circuit on the question
of constitutional jurisdiction and where
the issue may be initially raised.
c) The Federal Circuit declined to
answer whether pro se veterans are
entitled to equal treatment at CVA.
52
d) The Federal Circuit declined to
answer whether ex-parte communications
between the CVA and VA was permissable
conduct.
e) The Federal Circuit court declined
to answer whether the flagrant and
repeated flouting of CVA's rules by the VA
without sanction or censure is acceptible
judicial conduct.
f) The Federal Circuit declined to
address even Chief Judge Nebeker
published, June, 1991 statement in which
he said that: " the unrepresented veteran
doesn't have a chance " Since 70 % of all
veterans appear pro se, that should have
been a source of serious concern to the
Federal Circuit - but it wasn't - failing
to elicit a single comment.
g) The Federal Circuit declined to
respond, as to why, not a single veteran
had prevailed in its Court, four years
after P.L. 100-687 enactment.
Te ae Sen Pe a
ee ee
—
— RS ar nee a Oi et
53
Is there something wrong with the law,
or the Court or what ? Not a single
comment, from the Federal Circuit,
pursuant to a law which cries out for
interpretation and/or review. Absolutely
nothing to the veterans community begging
for guidance. Just silence.
h) No response as to whether the
Federal Circuit exercises any control over
CVA's judicial conduct ? Just silence.
i) No explanation regarding why the
instant case was consigned to the " tables
graveyard " ? Was the veterans' community
to be kept in ignorance over what had
transpired herein ? More silence.
j) No response to the Summary Judgment
issue, since it was a factual matter,
precluding the Court's intervention.
2) Issues Addressed: Albeit
Superficially by the Federal Circuit
a) The Federal Circuit's interpretation
of P.L. 100-687, 38 U.S.C.A., section 7292
54
(ad) (1),(2) held, that even if, the CVA's
decision was arbitrary and capricious,
( totally without basis ), and if, the
circumstances thereof, involved a factual
matter, that the Circuit Court is wholly
without jurisdiction. With such an
interpretation, it is doubtful whether a
set of circumstances could even be created
under which a veteran could prevail. No
wonder, nobody has. What do you suppose
the " founding fathers " would say about
that ? Can such an interpretation or law
be constitutional ?
Is it possible that the Federal Circuit
views itself as a potted plant with no
power to meaningfully review anything
brought to its attention by the veterans'
community ? If it does, why can't it say
so, in understandable, unambigious
language, so that the issues may be
Clearly drawn. Its job is to illuminate,
Clarify, not pontificate, in legalistic
55
lanquage so obtuse as to render its
judgments devoid of meaning to veterans,
whose only crime, was to be injured while
defending this nation and its liberties.
What is the Circuit Court afraid of ?
b) The Federal Circuit asserts that it
has sustained the constitutionality of
P.L. 100-687 based upon its decisions in
Wallace v Department of Air Force, 879
F.2d. 829, 832, ( Fed. Cir. 1989 ) and
Nagac v Derwinski, 933 F. 2d 990, Fed.
Cir.1990 ), inter alia. However, none of
those cases remotely approached the scope
of issues brought forth herein. Books
could be written pursuant to the matters
distinguishing the aforementioned cases
from the instant action.
For example, did any of said cases
involve the issue of a veteran's inability
to obtain a fair and impartial hearing ?
Did any of said cases involve a constitu-
tional challenge to the operation of the
56
VA's claim system,inter alia,ad infinitum?
Accordingly, petitioner can find no
relevance to the Circuit Court's prior
holdings, as applied to this case.
Regretably petitioner deplores the
Court's failure to address its impotence
pursuant to the VA's arbitrary and
capricious decisions. Based upon the
Circuit Court's holding, a veteran can be
lynched with impunity, while the Court
witnessing the crime, does so with an air
of bemused detachment. That's what the
Circuit Court's ruling means in plain
unvarnished language. That circumstance
is intolerable, requiring this Court to
say, it just ain't so.
Veterans appear pro se and doubtless
ignorant in much of the law, but let no
one believe that they're stupid, to be
treated cavalierly and with so much
disdain. After all, it doesn't take a
rocket scientist to understand when you've
Jammer
57
been " screwed " , and your constitutional
rights voided where prohibited by law.
c) The Federal Circuit finds that
petitioners assertion that Judge Donald
Ivers, is not qualified to sit in judgment
on any veterans case, wholly lacks merit.
That holding, is without basis in view
of the fact that Judge Ivers removed
himself in this case. And if he did so,
in this case - why not, in other veterans
cases. What is the difference between
this veteran and other veterans ? Does
the Circuit Court imply that Judge Ivers
removed himself without cause ? Or what
were the circumstances of his removal, the
Circuit Court does not say, yet it holds
that petitioner's request that Judge Ivers
remove himself in all cases is wholly
without merit. Does CAFC know something
petitioner does not know - otherwise, the
Court's ruling defies reason.
d) The Circuit Court finds that the
58
petitioner's objection, to the VA's
attorneys being housed in the same
building, as CVA, to be wholly without
merit, despite the fact, that evidence
given the Circuit Court clearly
establishes that the VA's attorneys
engaged in ex parte communication with the
CVA. If there is nothing wrong with being
housed in the same building, then why has
it been kept a secret from the veteran's
community, and why have they maintained
their old mailing address ?
The Circuit Court failed to examine the
evidence of prior wrongdoing by the VA,
and consequently, is totally ignorant of
what these VA bureaucrats are capable of
doing. Does that make moving illegal ?
No ! But any examination thereof,
indicates that something is rotten in the
state of Denmark, if not the VA and CVA.
Their close proximity is reason enough to
suspect the worst.
Based upon the forgoing it is clear that
the U.S. Court of Appeals for the Federal
Circuit ( CAFC ) has no jurisdiction over
anything meaningful or is reluctant to
exercise any power that it may have.
Under the circumstances, the law creating
veterans access to said Court is a cruel
hoax or an exercise in utter futility.
ll Is The Veterans’ Judicial Review Act
or P.L 100- 687 Constitutional 7?
Petitioner submits, that in its totality,
Public Law 100-687 is unconstitutional,
considering the following:
1) Aproximately 90 % of all veterans have
been excluded from the benefits thereof
( assuming there are any ) if their claims
were finalized prior to Nov 18. 1988.
Veterans never receiving due process,
equal protection or access to attorneys in
the first place, are now denied it in the
second place, assuming it exists at all.
2 (a) Despite the law, cvA sits only in
le
60
Washington, D.C. CVA sees and talks only
to VA attorneys. CVA clerks are generally
uncooperative in keeping with the esteem
veterans are held.
(b) CAFC sits only in wash. D.c.
(c) Veterans are not permitted to hire
attorneys during the initial and most
critical ( crucial ) stage of their claim.
(d) 70 per cent of veterans can't find
attorneys, even when permitted, despite
the complexities of the law and procedures
e) Veterans are still not permitted to
subpoena or cross examine bureaucrats
making hostile statements.
Under the circumstances, the right of a
veteran to be meaningfully heard is
substantially compromised, if not lost.
3) Class action suits are not permitted
preventing many similarly situated
veterans from combining their financial
resources and bringing concerted actions
to obtain needed and uniform relief.
61
No way to enforce CVA decisions
uniformly throughout the VA. Currently,
the Regional offices and the VA have been
detected circumventing CVA decisions °.
Besides, cases favoring veterans have no
legally binding precendential value,
4) Scope of judicial review is so
limited, rendering it almost meaningless.
5) Effectively denies the public access
to news of CVA decisions and awards, if
any, pursuant thereto under the excessive
secrecy provisions currently imposed.!°
®, Ronald Abrams Statement of 5/20/92
Director of National Veterans Legal
Services, before SVAC, indicates that the
Regional Offices wilfully ignores or cir-
cumvents CVA decisions, Page 29 thereof.
His insight is particularly instructive.
10, Even in COVA cases, where the
veteran has apparently prevailed, no one
knows how much the veteran received. In
one recent case, which the appellant has
followed closely, the veteran prevailed
and was remanded to the BVA, which awarded
him 10% instead of 40% for the loss of an
eye in 1952. Previously, he was awarded
nothing. That case is now under further
appeal. Would the Secretary dare offer
such compensation, if the public knew ?
62
The public’s right to know is
substantially diminished since cases are
tried only in D.C., considerably dampening
the local press's enthusiasm to report.
6) Lack of an independent decision maker.
The law notwithstanding, even CVA is an
appendage of the VA. Impartial review is
not possible, if judges have any
institutional bias.
The VA’s unconstitutional claims system
has continued largely because of its
ability to keep its adjudication process,
and the results obtained therefrom - a
secret, under one subterfuge or another.
secrecy, the hallmark of the VA's " plague
infested " claim system can never permit
light, to invade the hidden recesses of
its sqalid claims adjudication system.
The American people would be outraged,
if they only knew how veterans were
mistreated and victimized by the process.
Further, if they only knew of the
ane kn eect
63
helpless feeling of betrayal, lawyerless
veterans experience after being denied
valid claims, without a meaningful hearing
addressing their evidence. A process which
denies them the right to subpoena or cross
examine witnesses or to obtain competent
medical experts to resolve differences in
medical opinion, or to seriously challenge
VA decisions as being unconstitutional
under Maroszan, Johnson v Robison and
Goldberg v Kelly, 397 U.S. 254 ( 1970 ).
Never in our history have so many been
abused by bureaucrats, whose victims, have
so little recourse, with the public kept
" barefoot and pregnant" under a such a
malevolent conspiracy of silence.
The U.S. Supreme Court in a famous
pornograpy case ( citation omitted ) said
that while it couldn't describe
pornography in specific legal terms, it
knew it, when it saw it. So too, veterans
who have been routinely abused by the VA
64
know when their Constitutional rights have
been violated, although they may not be
competent to describe the infringement in
strictly legal terms.
ll! Review Requested of the Supreme Court
Petitioner asks only that this Court allow
him to enter the U.S. District Court in
Brooklyn, therein to present the evidence,
pursuant to a class action suit to estab-
lish once for all the unconstitutionality
of the VA claims adjudication system.
At the present time no attorney will
take the case unless that person is
assured it will be meaningfully heard.
Other cases, brought strictly in
conformance with Johnson and Marozsan, and
not seeking adjudication of claims, were
summarily dimissed re: [12: (b)(6)] on the
grounds that such cases were brought in
the guise of a constitutional complaint.
Notwithstanding the 7th Circuit's
65
opinion in Maroszan, the 2nd Circuit holds
a different view, at variance with Johnson
which clearly establishes a conflict
between the two circuits which this Court
should review to maintain uniformity among
the circuits.
IV Conclusion
In summary, petitioner asks only for
permission to litigate a veterans right to
a fair and impartial hearing and the
evidence pertaining thereto. Otherwise,
the petitioner shall have no alternative
but to bring a RICO, CIVIL RIGHTS or
BIVENS action against his own government,
something he is most reluctant to
participate in - even though, a New York
jury would be far more receptive to the
plight of veterans than a judge might be.
Thank you for any consideration extended
to disabled veterans.
Dated: February 19, 1993
New York, N.Y.
Respectfully ss iso atanaan
‘tL Ve Bow (lh.
ARTHUR N. BERNKLAU
c/o Sidney Cooper
44 West 62nd Street
Suite 29 A
New York, N.Y. 10023
APPENDICES
Appendix -A
pages
Decisions To Be Reviewed
CAFC order dismissing Appellant's
Combined Petition for Rehearing
In Banc. (11/25/92) A-1,2
CAFC panel decision dismissing
Appellant's Brief A 3-13
CVA denial of combined petition
for reconsideration and review. A14,15
APPENDIX B
Constitution ~
iST & FIFTH Amendments
38 U.S.C. sect 211 (a)
[ 511 (a) ]
38 U.S.C. 3402 (a) (2)
28 U.S.C. 455
FRCP rule 56
Veterans Judicial Review Act
(VJRA) or Public Law 100-687
or 38 U.S.C.
B-5-7
ix -
Witness /
Affiliation
BVA Chairman
Preferential
Signature List
R. O'Dell
VP. VVA
R. O'Dell
VP. VVA
R. O'Dell
VP. VVA
R. O'Dell
VP. VVA
P. Cushman
Pres.VDP
G. Erspamer
Attorney
NARS
Mcallister
Wash. Post
R. Abrams
VA Emp.
(virtually all of the
following originate from
Congresional Hearings)
Subject
Pages
Equal protection
Identical Cases
Decided Differently,
Courtesy Signatures
BVA Allowance
Aberration
Due Process
Courtesy Signature
Better to deny
than allow
Due Process
VA Destruction
of Court Ordered
Documents
Harrassment of
" Deep Throat"
Due Process
White Paper
Cm-i-4
C-5-10
C-9,10
C-10,11
C-12-15
C-16-21
C-22-26
C-27-31
S*32°39
Witness/ Subject Pages
Gompf Letter Blackmail C-40-43
VA Director Due Process
Equal Protection
J.N. Magill Intimidated by C-44-46
Director,VFW Gompf letter
Dr.A.Pellerin Due Process C-47-55
BVA Emp. Implausible dec-
isions, no retro-
active payment,
trash outside medical
opinions, conscience
stricken testimony,
intimidation.
we «Eee
CBO
Blum Veterans would incr-
ease allowances by
33%,if independent
medical expert
opinions were allowed
C-356,57
T.A. Verrill
Adj. Officer
Vets denied hearings
at critical Stages of C58,59
the VARO adjudication
process
K. Eaton BVA hearings covertly
BVA Chmn. denied, subject to
4 Members of
Congress
K. Blaylock
Pres.AFGE
quota. C-60-65
Letter to Wash. Post
Blackmail of C-66-69
NVSO's, inter alia
Due Process, incon-
sistent and uncontrol-
led decionmaking, no
effective check on
impermissable actions
C-70-75
we bt ate
4 WE bapa GR Be CPP ed a ae te
BBs
Witness/
Affiliation
N. Johnson
BVA Employee
D. Schwab
National
Officer, VFW
S. Cooper
VDP
Kenneth Eaton
BVA Chairman
B. McAllister
Wash Post
BVA Members
R.O.Muller
Pres. VVA
Chief Member,
BVA Panel
aie }
Subject Pages
Covert quota system,
shelve notions of due
process, decisions C-76-84
based on race, close
decisions always went
against veterans, dirty
tricks.
Due Process. Many C-85-93
service officers'
increasingly disappointed
over denial of cases which
have considerable merit.
Equal Protection - C-94-97
Miss. receives twice
the national average
in benefits.
Statistics, evidencing
virtually no change in
allowance rates -
suggesting a quota C-98-101
New Court(COVA) gives
preference to VA. C-102,03
Informal Grievance C104-110
Production Quota,
Courtesy signatures
Due Process
No uniformity of C-111-115
decisionmaking
Shopping for Judges
Intimidation of
panel by BVA C-116-118
Chairman
Witness/ Subject Pages
Affiliation
A. Bernklau BVA Statement C-119
BVA Opinion Hearing, 4/4/90 C-120
A.Bernklau CVA Brief C-121,22
A. Bernxlau CVA Brief
Doctor's Statements C-123,24
BVA Chairman, Ltr. to Bernklau C-125
Eaton via Barbara Bush
CVA, Chief D.A.V. Interview C-126
Judge Nebeker
CVA Decision Aronson v Brown C-127
re: Recusal
Order upon Petition for Rehearing and
Suggestion for Rehearing in Banc
(United States Court of Appeals for
the Federal Circuit, November 25,
1992):
“United States Court of Appeals
for the Federal Circuit
92-7038
ARTHUR N. BERNKLAU
Claimant-Appellant,
Ve
EDWARD J. DERWINSKI, Secretary
of Veterans Affairs,
Respondent -Appellee.
ORDER
A combined petition for rehearing and
Suggestion for rehearing in banc having
been filed by che APPELLANT, and che.
petition for rehearing having been
referred to the panel that heard the
appeal, and thereafter the suggestion for
rehearing in banc having been referred to
the circuit judges who are in rugular
active service,
UPON CONSIDERATION THEREOF, it 1s
ORDERED that the petition for
rehearing be, and the same hereby is,
DENIED, and it is further
ORDERED that the suggestion for
rehearing in banc be, and the same
hereby is, DECLINED.
The mandate of the court will issue on
December 2, 1992.
FOR THE COURT
FRANCIS X. GINDHART, CLERK
Dated: November 25, 1992
By
Diane M. Frye
Chief Deputy Clerk
58 er CATE ate A oe
DECISION UPON APPEAL: (United States
Court of Appeals for the Federal
Circuit 92-7038, October 9, 1992):
United States Court of Appeals
for the Federal Circuit
92-7038
ARTHUR N. BERNKLAU,
Claimant -Appellant
Vs
EDWARD J. DERWIINSKI, Secretary
of Veterans Affairs,
Respondent -Appellee.
DECIDED: October 9, 1992
Before MICHEL, Circuit Judge, SE¢KELTOII,
Senior Circuit Judge, and Clevenger,
Circuit Judge.
PER CURIAM.
Arthur N. Bernklau appeals to this court
from a decision of the United States Court
of Veterans Appeals ("CVA") that vacated
and remanded an April 4, 1990 Board of
Veterans Appeals' ("BVA") decision denying
appellant's claim for entitlement to a
total disability rating. Because we lack
jurisdiction on several of the issues, we
dismiss-in-part, and otherwise affirm-in-
bart.
Mr. Bernklau served in the Armed Forces
from July, 1954 to June, 1955. After his
retirement, the Veterans Administration
(“VA") determined that Mr. Bernklau was
entitled to a disability rating due to a
service-connected lower back injury. Mr.
Bernklau's disability rating was initially
set at ten percent in 1956, and through a
series of appeals and remands, the rating
was finally increased to a level of
seventy percent in an August 8, 1989
decision of the BVA, retroactive to
llovember 3, 1983. At that time, the BVA
aman itn a,
re eee eee. eee eee ae OR eT te Tate See ee Toe eee
ONT tetra Ba
le ie nt ee in ne te ee
again remanded the disability rating to
the VA to determine whether Mr. Bernklau
was unemployable by reason of service-
connected disability and, therefore,
entitled to a total disability rating.
On September 5, 1989, the regional office
of the VA denied Mr. Bernklau's claim for
a total disability rating. This issue was
certified for appeal to the BVA. Ina
decision dated April 4, 1990, the Bva
affirmed the VA's decision holding that
“(Mr. Bernklau's] service-connected {lower
back] disability does not render him
unemployable or unable to obtain or retain
[sedentary] employment in a field ot
endeavor for which he is qualified."
Docket No. 87-26 401, at 6. Mr. Bernklau
appealed this denial to the CVA,
On appeal, Mr. Bermnklau variously moved
for sanctions against the Secretary of
Veterans Affairs and censure ot the VA.
The CVA denied these motions on October
24, 1991. The Secretary moved that the
CVA vacate and remand the BVA's decision,
which it did on February 14, 1992, Stating
that “the reasons or bases contained in
the [BVA's] decision are not 'clear enough
to permit effective judicial review.'"
Bernklau v. Derwinski, No. 90-637 (Vet.
App. Feb. 14, 1992) (order vacating and
remanding) (quoting Gilbert v. Derwinski,
1 Vet. App. 49, 57 (1990)). The CVA also
found that it was without jurisdiction to
hear Mr. Bernklau's claim for retroactive
compensation for higher disability ratings
because the issue was not properly before
the BVA at the time of its April 4, 1990
decision. The CVA entered judgment on
March 23, 1992 after denying Mr.
Bernklau's motion for reconsideration, or
in the alternative, for review en banc. 2
Vet. App. 341 (1992).
Mr. Bernklau's appeal of the cCVA‘s
decision to vacate and remand the BVA'S
disability determination raises several
jurisdictional issues. The jurisdiction
of the court is "limited to those subjects
encompassed within a statutory grant of
jurisdiction." Insurance Corp, of
ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 436 U.8; 694, 7O1l - (1982).
Jurisdiction of this court to review
judgments of the United States Court of
Veterans Appeals is governed by 38
U.S.C.A. § 7292 (West 1991), which reads,
in pertinent part:
(dad) (1) The Court of appeals for the
Federal Circuit shall decide all relevant
questions of law, including interpreting
constitutional and Statutory provisions.
The [Federal Circuit] shall hold unlawful
and set aside any regulation or any
interpretation thereof (other than a
determination as to a factual matter) that
was relied upon in the decision of the
[CVA] that the {Federal Circuit] finds to
be--
(A) arbitrary, capricious, and [an]
abuse of discretion, or otherwise not
in accordance with law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory
jurisdiction, authority, or
limitations, or in violation of a
statutory right; or
(D) without observance of procedure
required by law.
(2) Except to the extent that an appeal
under this chapter presents a
constitutional issue, the {Federal
Circuit] may not review (A) a challenge to
a__factual determination, or (B) a
challenge to a Jaw or regulation as
Lied : ) re
(emphasis added). See Livingston v,
Derwinski, 959 F.2d 224, 226 (Fed. Cir.
1992).
Mr. Bernklau contends that the CVA's
remand to the BVA is improper because the
CVA either had no factual basis on which
to support its remand, or altogether
misinterpreted the pertinent facts. We do
not reach the merits of this issue. The
BVA is required to provide a statement of
the “reasons or bases for [its] findings
and conclusions ... ." 38 U.S.C.A. -§
7104 (da) (1) (West 1991). In holding that
the BVA's “reasons and bases“ were not
“clear enough to permit effective judicial
review," the CVA determined that the
BVA's opinion failed to meet the statutory
requirements of section 7104. Thus, Mr.
Bernklau challenges the application of a
law to the specific facts before the CVA.
We therefore lack jurisdiction to consider
this issue. 38 U.S.C.A. § 7292(d) (2) (B).
The same is true for Mr. Bernklau's
contention that the CVA incorrectly found
itself without jurisdiction to hear Mr.
Bernklau's claim for retroactive
compensation because the issue was not
properly before the BVA at the time of its
April 4, 1990 decision. Issues not before
the BVA may not be considered by the CVA.
Branham v,. Derwinski, 1 Vet. App. 93, 94
(1990). Whether or not the issue of
retroactive compensation was before the
BVA on April 4, 1990 is a factual
determination on which the CVA relied in
drawing its conclusion. We are therefore
without jurisdiction to review this issue.
38 U.S.C.A. § 7292 (da) (2) (A).
Mr. Bernklau also argues that the CVA
erred as a matter of law in denying his
motions for the imposition of sanctions
ll
:
upon the Secretary of Veterans Attairs.
The CVA's decision not to impose such a
penalty, however, clearly rests on its
application of law to the factual record.
Thus, we are without jurisdiction to hear
this issue. 38 U.S.C.A. § 7292(d).
Mr. Bernklau further argues that the CVA
erred as a matter of law in denying his
motion for summary judgment in view of the
“well documented facts." Whether a motion
for summary judgment should have been
granted is a question of law. However,
because consideration of Mr. Bernklau's
motion requires an analysis of the factual
background of the motion, we lack
jurisdiction over this issue. 38 U.S.C.A.
§ 7292(d).
We also reject the other grounds upon
which Mr. Bernklau appeals. His
contentions that the Veterans' Judicial
Review Act, Pub. L. No. 100-67, 192 Stat.
c ) < . mere 7. +4 ; . ,
4105 (1988) ’ lS un nstitutional were not
raised betore the } ind therefore need
not be entertained on appeal. Wallace v,
Department Of Alr Force, 879 F.2d 829, 832
(Fed. Cir. 1989). In any event, this
court has sustained the constitutionality
OF that Act. meee, €@.g9., Nagac v.,
Derwinski, 933 F.2d 990, 990 (Fed. Cir.),
cert, denied, hAa @« es a 384 (1991);
elarmino vv, Derwinski, 931 F.2d 1543,
1544 (Fed. Cir. 41991). Mr. Bernklau's
other contentions (among them that the
Honorable Donald Ivers must be
disqualified to sit on any CVA case, and
that it 1S improper for VA attorneys to be
housed in the same building as the Cv
wholly lacks merit.
For the above reasons, we dismiss those
parts of Mr. Bernklau's appeal over which
ack jurisdqaiction, and ornerwise af
masa
ORDER upon motion for reconsideration
or, in the alternative for review en
banc (NO. 90-637, MARCH 23, 1992)
“UNITED STATES COURT OF VETERANS APPEALS"
NO. 90-637
ARTHUR N. BERNKLAU, Appellant,
VA File No. 19 024 516
vs
EDWARD J. DERWINSKI,
Secretary of Veterans Affairs, Appellee.
Before NEBEKER*, Chief Judge, and
KRAMER*, FARLEY, MANKIN*, HOLDAWAY,
IVERS, and STEINBERG, Associate Judges.
ORDER
On February 14, 1992, a three-judge panel
of the Court granted the Secretary of
Veterans Affairs' (Secretary) motion for
remand. Accordingly,
the decision of the
Board of Veterans' Appeals (Board) was
vacated and the case remanded for
proceedings consistent with the
secretary's motion. On February 26, 1992,
appellant filed a motion for
reconsideration or, in the alternative,
for review en banc.
Upon consideration of appellant's
motion for reconsideration by the panel,
it is
ORDERED tnat the motion for
reconsideration is denied.
|r
(1)
—
QO)
ct
jb
_
VY
~
~
Upon consic Of appellant's
alternative motion tor review en banc, by
the full court, it is
ORDERED that, no judge 1laving called
for a vote, appellant's motion for review
en banc is denied.
DATED: MAR 23, 1992 PER CURIAM
CONSTITUTION
Pirst Amendment:
"Congress snall make no Law
‘ respecting the establishment of
religion, or pronibiti ng the free
exercise thereot ; Or abridging the
freedom of speech or of the press;
Or the right of the people peaceably
to assemble and to petition the
government for redress of just
grievances."
Fifth Amendment:
"Ilo person shall be held to answer
for a capital, or other intamous
Crime unless on a presentment or
indictment of a Grand Jury, except in
cases arising in the land or nava!
forces, or in the Militia, when in
actual service, in time of War or
public danger; nor shall any person
be subject for the same offense to be
twice put in jeopardy of life and
limb; nor shall be compelled in any
Criminal case to be a witness against
himself, nor be deprived of LLfe,
liberty, or property, without due
process of law; nor shall privare
Property be taken for public use
without just compensation."
STATUTES
38 U.S.C. §3402(a) (2) (1979):
(NOW: 38 U.S.C § 5902(a) (2)]:
"The Administrator may, in his
discretion, furnish, if available,
Space and office facilities for the
use of paid full-time representatives
of national organizations SO
recognized."
38 U.S.C. §2ll(a) (1979)
(NOW: 38 U.S.C § 5ll(a)]:
"On and after October 17, 1940,
except as provided in sections 775,
784, and as to matters arising under
chapter 37 of this title, the
decisions of the Administrator on any
question of law or fact under any law
administered by the Veterans'
Administration providing benefits for
veterans and their dependents or
Survivors shall be final and
conclusive and no other official or
any court of the United States shall
have power or jurisdiction to review
any such decision by an action in the
nature Of mandamus or otherwise."
28 U.S.C. §455(a), (b), and (e)
“(a) Any justice, judge or magistrate
of the United States shall disqualify
himself in any proceeding in which
impartiality might reasonably be
questioned.
"(b) He shall also disqualify himself
in the following circumstances:
"(1) Where he has personal bias or
prejudice concerning a party, or
personal knowledge of disputed
evidentiary facts concerning the
proceeding;
"(4) He knows that he, individually
***** has a financial interest (legal
Or equitable interest, however smal 1)
in the subject matter in controversy
“e*** or any other interest that
could be substantially affected by
the outcome of the proceeding;
"(5) He Tek KeK
"(iv) is to the judges knowledge
likely to be a material witness in
the proceeding.
“(e) No justice, Judge or magistrate
Shall accept from the parties to the
proceeding a waiver of any ground for
disqualification enumerated in
Subsection (b). Where the ground for
disqualification arises only under
Subsection (a), walver may be
accepted provided it is proceeded by
a full disclosure on the record of
the basis for disqualification."
{emphasis added}
FEDERAL RULES OF CIVIL PROCEDURES (FRCP)
Rule # 56
The judgment sought shall be rendered
forthwith . .."“ If there is no genuine
issue as to any material fact and that the
moving party is entitled to judgment as a
matter of law. A summary judgment may be
rendered on the issue of liability alone
although there is a genuine issue on the
amount of damages."
B-5
VJRA (Public Law 100- 687) or 38 U.S.C.
(Applicable Statutes)
38 U.S.C. sec. 4051 ;
The VJRA precludes CVA review of final BVA
decisions unless Claimant has filed a
Notice of Disagreement on or after
November 18, 1988.
38 U.S.C. sec.4055
" The principal office of the Court of
Veterans Appeals sha?l be in the District
of Columbia, but the Court may sit any
Place within the United States."
To date: CVA sits only in Wash. D.c.
38 U.S.C. sec 4061
" The times and places of sessions of the
Court of Veteran Appeals shall be
prescribed by the chief judge. "
38 U.S.C. sec, 4092 (a)
" The VJRA provides the U.s. Court of
Appeals for the Federal Circuit, an
existing Article III court, that sits in
Washington, D.C. with exclusive
jurisdiction to hear appeals of CVA
decisions."
" The Court of Appeals for the Federal
Circuit shall decide all relevant
questions of law, including interpreting
constitutional and statutory provisions.
The court shall hold unlawful and set
aside any staute or regulation or any
interpretation thereof( other than a
determination as to a factual matter) that
was relied upon in the decision of the
Court of Veterans Appeals that the Court
of Appeals for the Federal Circuit finds
to be-
"(A) arbitrary, capricious, an abuse
of discretion, or otherwise not in
accordance with law;
"(B) contrary to constitutional
right, power, privilege, or immunity;
" (C) In excess of statutory
jurisdiction, authority, or limitations
or in violation of statutory right; or
“ (D) without observance of
du w."
" (2) Except to the extent that an appeal
under this chapter presents a
constitutional issue, the Court of Appeals
may not review (A) a challenge to a
factual determination or (B) a challenge
to a law or regulation as applied to the
facts of a particular case. "
( emphasis added )
B-7
38 U.S.C. 5404 (c) (1)
( formerly 3404 (c)(1) }
" A fee may not be charged, allowed or
paid for services of agents and attorneys
with respect to services provided before
the date in which the Board of Veterans'
Appeals first makes a final decision in
the case. Such a fee may be charged,
allowed or paid in the case of services
provided after such date only if an agent
or attorney has been retained with respect
to such case before the end of the one
year period beginning on that date. This
limitation ....does not apply
to services provided with respect to
proceedings before a court."
note: BVA final decisions may not take
place for years.
PERSONAL SIGNATURE LIST" OF CHAIRMAN
KENNETH E. BATON, BOARD OF VETERANS
APPEALS :
“Office of the Chairman
Board of Veterans Appeals
Washington, D.C. 20420
March 9, 1987
“MEMORANDUM
No. 01-87-10
Subj: Chairman's Personal Signature
List
1. PROCEDURE
When the following persons have
expressed an interest in a case, and
correspondence is being directed to the
Capitol Hill offices, the case, after
processing through AIRS and prior to
dating and dispatch of correspondence
will be routed through the Chairman's
<7 } :
review and signature. Where a letter
is being sent to the district offices, it
should not be sent to the Executive
Assistant but rather should be signed by
the Chief of the Section preparing the
correspondence, e.g., Chief, Special
Correspondence and Inquiries Section;
Chief, Hearing Section.
2. COMPOSITION
Senators
Alan Cranston, Chairman
Senate Veterans' Affairs Committee
|
Frank H. Murkowski
Alan K. Simpson
Mark O. Hatfield
Thomas A. Daschle
CONGRESSMEN
G.V. Montgomery, Chairman, House
Veterans' Affairs Committee
Gerald B. H. Solomon
John Paul Hammerschmidt
Jim Wright, Speaker of the House
Denny Smith
Douglas Applegate
Don Edwards
WwW
RECISSION
a. Chairman's Memorandum No. O1-85-
24, dated September 27, 1985, subject:
Chairman's Personal Signature List, is
hereby rescinded.
b. This memorandum is automatically
rescinded December 31, 1987.
KENNETH E. EATON
Chairman"
{BOLD PRINT EMPHASIS ADDED}
STATEMENT PRESENTED BY RICHARD gE.
O'DELL, VICE PRESIDENT AND CHAIRMAN
OF COMMITTEE ON ADVOCACY, VIETNAM
VETERANS OF AMERICA, INC. (VVA),
DATED FEBRUARY 18, 1988, ENTITLED:
“VA APPELLATE ADJUDICATIONS AT THE
BOARD OF VETERANS APPEALS", BEFORE
THE HOUSE OF REPRESENTATIVES, HUMAN
RESOURCES AND INTERGOVERNMENTAL
RELATIONS SUBCOMMITTEE OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
HEARING CONCERNING "OVERSIGHT OF VA'S
DISABILITY COMPENSATION PROGRAMS".
HEARING BOOK PAGES 95 THROUGH 195.
{***** Statement page 5}
"Significant Variances
Between Different Sections
of the BVA
“Kenneth E. Eaton, Chairman of the
Board of Veterans Appeals, testified at an
oversight hearing on the operation of the
BVA before the Subcommittee on
Compensation, Pension and Insurance of the
House Committee on Veterans Affairs in
1985 and again on October 6, 1987. Mr.
Eaton, responded to a question from
Chairman Applegate in 1985 by saying
The VVA and the American Legion have each,
in the past, pointed out similar problems
(Exhibit C, footnote 3 {***** omitted} )
During the 1985 and 1987 hearings
when Mr. Eaton testified, it would have
been very helpful if production statistics
for each of the 21 sections of the BVA had
been available. These production
Statistics show allowance rates, denial
rates and remand rates for each of the
’
CF
Board's 21 sections. Had they been
available they would likely have shown
Substantial Gifferences in allowance
rates. denial rates and remand yates
between certain sections of the Board that
eailie asaiis
"The VVA has obtained one such
document from sources within the BVA and,
indeed the differences we have suspected
are apparent. Allowances overall for the
last Quarter of Fy 1987 for al] Board
sections ranged between 7.9 percent and
18.6 percent. Denials overall for the
Same Quarter ranged between 55.6 percent
and 82 percent, Remands ranged between
6.9 percent and 31.6 percent (Exhibit D
{***** omitted}). The vva believes the
variations in these production statistics
show that the testimony of the Chairman of
the BVA regarding the “significant
variances between different sections of
-™ ——
the Board is indeed very significant. It
is so significant, in our judgment, that
it has become apparent that a higher
reviewing authority ought to be made
available on this basis alone in order to
protect veterans from those “variances" in
the decisions rendered on veterans
benefits.
Moreover, not only are there
, : } mer z= ‘
} } 4 ae
cases are decided differently (Exhibit C,
pg. 7 {***** omitted}) . Thie face .
; } ie 4
13 nd fod ; lat j
CFR 3,101 (Exhibit E {***** omitted})."
“xxv
{Statement page 11} "An interesting
corralary to the production credit limits
in cases involving multiple issues is the
affect additional credits in individual
cases might have on overall BVA allowance
rates. Over many years the BVA annually
has approved about 13 percent of the
appeals adjudicated. This rate has
remained so constant over the years that
it has come to be termed "the quota" in
some circles. If production credits were
given for each issue decided in each case
by the BVA, it is likely that allowance
rates would decline precipitously as
denials soared.
Indeed the VA's Veterans Appeals
Control and Locator System (VACOLS) which
Provides statistical information on
allowances and denials "is blind to the
reasoning behind any individual decision.
If. in a four issue appeal, three issues
are denied and one issue is allowed. the
YVACOLS record will reaqard the BVA decision
C-20
as an allowance," (Exhibit L, pg 2 -{*****
omitted}).
Moreover, if it is conservatively
ba ) ~~ } }
; } ' 1 if it 3
disallowed, the annual allowance rate
wxkekek
{***** Statement page 15}
"Courtesy Sign-Offs
“Another potential byproduct of
production pressure and bonus incentives
is particularly troubling. This is the
€ ' ;
Ef lai ecie: t)
reviewing the file. The danger for
veterans is one of being denied due
Process as prescribed by the laws
governing the way appeals are Supposed to
be adjudicated.
“The May 11, 1987 Informal Grievance
cited earlier in this Statement (Exhibit
J, pg 2 {***** Omitted}) discusses
courtesy sign-offs as follows: “Another,
and perhaps the most serious manipulative
eae |
by obtaining signatures on decisions by
who sign the decisions despite not having
reviewed the case. This so-called
"courtesy' SYstem not only deprives
Claimants from a review to which they
would otherwise he entitled, but is also
used to artifically increase the
production of decisions. We need pot
identify those sections that regularly
engage in this practice because their
c-12
an_'in house courtesy' signature, thereby
accomplishing the same result as obtaining
a ‘courtesy' Signature outside the
section. All that is required are
n
i)
that the “courtesy” is frequently
. i } t} : shysician member." “xe
——_— eee rn ase
13
2)
{Statement page 21} "The writer goes
on to say "(a]ll promotions, bonuses and
other rewards are based almost exclusively
On productivity, with only lip service
being paid to quality. Sections are in
competition with each other for a yearly
bonus, which is paid to the sections with
the highest productivity over the year,
with the largest share going to the Chief
Member. This encourages the Chief Member
of each section to focus on getting the
cases out, so to speak, regardless of
quality or whether a fair result is
reached in the case or not. (The Chief
Member of the section I was in at the time
of my retirement, although a decent person
Overall, did not view favorably my
dissents in favor of the veteran or other
Claimant, which he felt slowed down the
productivity of the section and impaired
his chances for the yearly bonus ... It
is my belief, based on my 20 years'
experience with the BVA, that the agency
is not discharging its duties and
responsibilities toward the veterans of
this nation and their survivors, in the
Spirit which Congress intended and that
judicial review of BVA decisions, and
lifting of the $10 limitation on
attorneys' fees, would greatly benefit
veterans and other claimants for Veterans
Administration benefits. In my judgment,
the Vice Chairman and most board members,
whether law members or medical members,
have an anti-claimant orientation, and
little sympathy for the veterans’ benefits
program, which they view as a huge give-
away. This view colors the decisions they
reach on the cases before them. (Soon
after I became a board member, I was
called in by the Vice-Chairman, as a
result of a dispute I was having with the
Deputy Vice Chairman, in charge of one-
half of the board to which my section was
assigned, and was told by the Vice
Chairman that I was too allowance-prone,
and that it was preferable to deny a case,
when it doubt. than to allow it. as a
denial always had a chance of being
reversed later, whereas an allowance was
final.) . . . Most board members, in my
judgment, pay only lip service to the and
regulations, disregarding those with which
they are not in sympathy in order to reach
the result they favor in the particular
case... . Some of the most anti-veteran,
year. based on their production
{EMPHASIS ADDED}
ANONYMOUS “DEEP THROAT" “TYPE LETTER
RECEIVED BY MR. GORDON F. ERSPAMER
(LEAD NARS ATTORNEY IN NARS Vv.
WALTERS -- CASE NO. C-83-1861-MHP,
N.D. CALIFORNIA). SAID LETTER WAS
SUBMITTED AS "EXHIBIT E"* (SEE HEARING
BOOK PAGES 310 THROUGH 312) IN THE
PREPARED STATEMENT (SEE HEARING BOOK
PAGES 292 THROUGH 326) OF PHILIP 8.
CUSHMAN, PRESIDENT, VETERANS DUE
PROCESS, INC. (VDP), BEFORE A JUNE
25, 1986, HEARING OF THE COMMITTEE ON
VETERANS' AFFAIRS, HOUSE OF
REPRESENTATIVES, NINETY-NINTH
CONGRESS, SECOND SESSION, HEARING
BOOK VOLUME II, SERIAL NO. 99-54
“May 29, 1986
“Gordon Erspamer, J.D.
NARS Advisory Board
78 El Camino Real
Berkley, CA 94705
Dear Mr. Erspamer:
“Your statement before the House
Veterans Affairs Committee on May 20,
1986, was accurate and true. The Veterans
Administration does not Systematically
provide veterans With adequate due
process, especially for those Claims
disallowed for failure to Submit requested
evidence. Instead, those who manage
adjiudicative actions encourage premature
denial of claims without notice in order
tO statistically enhance the data that
measures the timeliness’ of Claims
processing. Managers of adjudication
receive work credit for the volume of
cases produced. If for example, end
Product controls are prematurely cancelled
Or recorded, the same credit can be
received for working one claim four times
as for working four claims. These
managers are then rewarded by both
additional staffing and monetary bonuses
under merit pay.
Your prepared statement includes a
memorandum (Exhibit A) from T.A. Verrill,
Adjudication Officer at the V.A. Regional
Office, San Francisco. Mr. Verrill has
. "= fj
} hi ef
' Ly Les id }
issues claimed and was forced to appear in
court to defend his policy of discouraging
hearings to claimants. Central Office has
chosen to ignore these repeated offenses
exceptional evaluation and a bonus under
merit pay. This award was fully concurred
in and encouraged by officials at Central
Office.
In many instances, this office, as
well as some other offices, including:
Washington Regional Office, St.
Petersburg, Philadelphia, Baltimore,
Los Angeles, and Winston Salem have been
found to repeatedly “administratively"
deny claims without broper processing. In
Many instances. a copy of the develoomentr
letter requesting evidence is never placed
in file, ver the Claimant is disallowed
for not replving fo the request. Often.
the evidence was NOt actually requested.
This type of failure is considered only
Procedural in nature and is not counted as
a substantive error against the station.
On several occassions this was brought to
the attention of the Compensation and
Pension Director. In addition, there have
rh
been instances when several items o
evidence have been requested. If some,
but not all, of the evidence requested is
received, some stations will disallow the
Claim without notice for failure to submit
requested evidence. Confirmation of these
facts can be found by making a Freedom of
Information (FOIA) request to Central
Office to obtain from the Compensation and
Pension Field Operations Section, a
Summary of the quality review and the
specific claim numbers for cases involving
error codes 15, 33, 52a and 54. These are
maintained in the station quality review
fite as well as the station general
operating file. The information regarding
type of errors is also maintained on a
personal computer by the Systematic
Quality Control (SQC) section of Field
Operations.
} at Lai
; } ali
process more that {sic} two cases per
hour. The number is left up to the
management of each regional office.
In order to operate with reduced
a a ia |
employ full time doctors for the rating
board, Instead a part-time doctor is
borrowed from a local medical center one
CO two times a week to sian his pame to
| | idee
spend one minute or less on each decision.
This information can be confirmed by
requesting the performance standards for
regional office employees to include
Claims Examiners, GS-9-11l and Rating
Specialists GS-12. Information regarding
regional office staffing in the
adjudication division can be obtained from
the Compensation and Pension Service at VA
Central Office."
{EMPHASIS ADDED}
C-22
"DEEP THROAT" LETTER #2, RECEIVED BY
MR. GORDON ERSPAMER, LEAD ATTORNEY IN
NARS V. TURNAGE (CASE# C-83-1861-
MHP), CONCERNING INTERROGATORIES SENT
TO THE VETERANS ADMINISTRATION
PURSUANT TO SAID ACTION. {NOTE: THIS
LETTER PROVIDED BASIS FOR COURT
INVESTIGATION RE DESTRUCTION OF DUE
PROCESS DOCUMENTS REQUIRED UNDER
COURT ORDER. SAID INVESTIGATION
RESULTED IN FINES TO THE VA OF
$120,000., REQUIRED COURT APPOINTMENT
OF A SPECIAL MASTER TO ENSURE
COMPLIANCE WITE ‘FUTURE COURT ORDERS}
"July 11, 1986
“Gordon Erspamer, J.D.
NARS Advisory Board
78 El Camino Real
Berkeley, CA 94705
Dear Mr. Erspamer:
“Your interrogatories recently sent
to the Veterans Administration have been
received. You are heading in the right
direction. However, there is a conspiracy
by the supervisors of the Field Qnperations
Staff in the Compensation and Pension
Service to deny vou the information
requested. If you do not Specifically
Mame the correct form or record, they
intend to indicate they have no record.
You should ask for Specific error
exceptions called. These are held for 2
years and are contained on form 20-6567a-
rp A copy of the form along with a
sample is enclosed. You should ask for
any and all exception sheets that contain
errors under the specific error codes your
interrogarory {sic} requested. The soc
history file contains these exception
Sheets for all stations. The sheets
contain the name of the office, the name
of the veteran and the claim number of the
veteran. There is also a series of
letters written to stations which document
specific errors in due process and case
control. You may wish to ask for all
error sheets and letters concerning due
process and case (claims) control for as
far back as these errors have been kept.
the Adjudication Officers. Included in
the purge was information received from
San Francisco Regional Office employees
about T.A. Verrill, Adjudication Officer
of that office. The staff consultants of
the Field Operations Staff purged the
files. However, you may ask for station
visit reports and station history files.
The periodic station analysis are held in
the official station history files for 2
years and held indefinitely in the
unofficial brown history file. You should
request both station visit reports and
staff analyses for 8 Stations since
January 1982 to present. These records
along with SQC records are also maintained
at each regional office.
It should be also noted that a legal
bapers on due process problems found at
field stations that have been given to the
Director of Compensation and Pension
Serivce {sic}, Gerald P. Moore. These
should be requested. In addition, Ronald
Abrams wrote a memorandum to Gerald Moore
and Central Office failure to take the
destroyed by Michael Dunlap, the
Supervisor of the Field Operations Staff
without being forwarded to the Director of
the Service. Mr. Moore did indicate to a
consultant, Mr. John Smith, who is now the
Adjudication officer at the Hartford, CT
Regional Office, that on the staff visit
to Washington Regional Office, no due
You may wish to request the
performance standards for each
Adjudication Officer. You will note that
there is no uniformity in the performance
Standards. This means that each office
has its own quality standard. The
Adjudication Officer is not responsible to
any central authority, but to his own
Station director."
{EMPHASIS ADDED}
WASHINGTON POST NEWSPAPER ARTICLE
CONCERNING VA HARASSMENT OF "DEEP
THROAT", WRITTEN BY STAPF WRITER
BILL MCALLISTER, DATED APRIL 24, 1990
“Harassment Claim at VA Supported
“An internal Department of vererans
Affairs- investigation has supported
allegations that a vA Supervisor harassed
a_worker who had warned a federal judge
that department officials were destroying
records in a highly sensitive lawsuit.
The finding by one of the
department's Equal Employment Opportunity
investigators is of the type that VA
officials have Said could trigger
additional sanctions, such as contempt of
court proceedings, for the department from
U.S. District Judge Marilyn Hall Patel of
San Francisco.
28
2)
‘
; } ud } ed
$120,000 fine for the wholesale
; . oa 3
lawsuit over the treatment of veterans
exposed to radiation during atomic bomb
tests. In addition, she warned VA
officials not to harass any workers who
had cooperated with the investigation of
the records destruction. VA officials
have told supervisors that “any adverse
employment action" taken against a
cooperating worker could subject the
supervisor to contempt proceedings.
The fine and warning from Patel
followed testimony by Barry S. Boskovich,
a staff consultant in the VA's central
office, who said that records in the case
29
2)
‘
Boskovich has testified that his
actions made him unpopular at the VA, and
last September he complained to Equal
Employment Opportunity officials there
that his annual evaluation had been
lowered by a supervisor in retaliation for
his actions in the lawsuit.
ee nie Bas
oF | |
sa | |
service that Boskovich “established a
brima facie case of discrimination."
Robinson said it was likely that Ted
Spindle, Boskovich's Supervisor, had
discriminated against Boskovich because of
his testimony in the records case. He
recommended a finding in favor of
Boskovich.
Spindle denied retaliating against
Boskovich, but he did tell the
investigator that he kept a separate file
on Boskovich's work and that he believed
Boskovich “was neglecting his duties as a
result of his obsession" with the San
Francisco case. Spindle declined to
comment.
After receiving Robinson's report,
VA officials ordered a second
investigation. That report was completed
last month, but it was inconclusive and
basically told VA officials they would
have to resolve the dispute.
Veterans Affairs Secretary Edward J.
Derwinski described the Boskovich
allegations as “a sgerious matter" in a
letter to Congress earlier this year and
promised he would investigate. H1s action
came after the chairmen of the House and
Senate veterans affairs committees and the
House panel's ranking Democrat declared
they “would be dismayed" if Boskovich
was being harassed. The members of
Pree i i i i tea
Congress noted that Don L. Ivers, the VA's
general counsel, had assured them rhere
would be no retaliation against workers
who testified about the destruction of
records.
Don Smith, a VA spokesman, said
yesterday it will be up to officials in
Boskovich's section to attempt to resolve
the matter. If Boskovich is unnappy with
their offers, he can appeal the matter
directly to Derwinski or to the Equal
Employment Opportunity Commission for a
hearing by an administrative law judge,
smith said.
As far aS VA officials know, the
matter has not been communicated to Judge
Patel, the spokesman said.
The judge has yet to rule in the
long-pending lawsuit involving veterans
who were exposed to radiation during the
tests." {BMPHASIS ADDED}
VETERANS ADMINISTRATION INTERNAL
MEMORANDOM, WRITTEN BY RONALD B.
ABRAMS, VA LEGAL CONSULTANT,
CONCERNING DOCUMENTATION OF "DUE
PROCESS" PROBLEMS, AND THE NARS V.
WALTERS LAWSUIT (CASE # C-83-1861-
MHP,
"VA
Date:
From:
Subj:
To:
PENDING, N.D. CALIFORNIA)
VETERANS
ADMINISTRATION
9/25/86
Ronald B. Abrams, Legal Consultant
Documentation of Due Process/NARS
v.Walters/Analysis/Suggested Actions
Director, Compensation and Pension
Service (21)
THRU: Assistant Director Adjudication
Procedures
THRU: Chief, Project Staff
***** {NUMBERED PARAGRAPHS 1-13 OMITTED}
"14. Mr. Erspamer will try to prove that
Our adjudication process Systematically
denies procedural due process. He will
argue that our system is unfair and
counteractive. He will contend that our
Management evaluation system emphasizes
productivity and timeliness to such an
extent that our managers are encouraged to
violate the due process rights of our
claimants.
15. Mr. Erspamer can show that it is in
their people do. as quickly as they can.
aS_many cases as possible. He can also
Show that adjudication duties dealing with
such as: control of claims, supervisory
review of old claims, thorough
development, recognition of all issues,
providing adequate notice, documenting
that notice was given, and careful quality
review, tend to adversely affect gross
ee . pinot: sai Rint
16. Because centrai office does not
require its regional offices to validate
their local quality review, Mr. Erspamer
will contend that it is in the best
interest of some of our managers to deny
or ignore the due process rights of their
Claimants. He will argue that because due
process procedures increase the time it
takes to adjudicate a claim, thereby
Slowing production, it is not in the best
financial interest of our managers to
follow our regulations and directives
dealing with due process.
17. Mr. Erspamer can Show that a Managers'
| aad — |
bart on the adjudication division's
productivity. He will state that our
System encourages some adjudication
Managers tO report incorrect quality
levels because they know that their
failure to do this part of their job will
not be held against them. if Mr. Erspamer
can show that our System pits the
financial interest of adiudication
ffi . e } f . j b]
Creatment of our claimants. he would be
well on his way to proving the vA does
have an unfair. adversarial claims
eee
18. Mr, Erspamer has obtained reports
so that credit for completed work could be
taken ‘(Baltimore). He has survey trip
reports and white papers documenting that
certain stations: ignored claims
(Phoenix), established and cancelled
controls improperly (Baltimore, Hartford,
San Francisco, WRO), discouraged complete
development (Baltimore), ignored or didn't
,
(many regional offices).
processing system and violated the rights
of our claimants, JI Strongly suggest you,
as Director of our Service. take
appropriate administrative action against
Supervisors who. for whatever reason.
) | | |
Gross violation of the constitutional
***** {NUMBERED PARAGRAPHS 20 AND 2]
OMITTED} 22. We cannot defend the actions
taken by some regional Office and central
office supervisors and win this case. Mr.
Erspamer will present evidence tending to
show the adjudication process is
unreasonable and unfair. If we down play
in Court, violations Of VA rules py VA
Supervisors regarding the fairness of
adjudication claims processing, the
ee
case. (See Plato v. Roudebush 397F.Supp.
1295, (1975).) If the Court finds that
Lai Fai
24. The best approach would be to describe
- . .
aberrations. Explain that we in Central
Office, under your direction, have been
investigating these matters for a period
of time. Although proving these
improprieties was difficult and time
consuming, we now have enough evidence to
re
act. (See paragraph 18 Supra.) Argue that
Our internal actions show the jnherentr
Systemic fairness of the VA adjudication
process.
***** {NUMBERED PARAGRAPH 25 OMITTED} "26.
This memorandum is confidential. Because
of its sensitive Nature, I request that
you not show this to anyone. I
especially request that this memorandum
not be seen by anyone in Section 214."
RONALD B. ABRAMS"
{EMPHASIS ADDED}
LETTER BY GAIL A. GOMPF, DIRECTOR, VA
INTERGOVERNMENTAL AFFAIRS, TO
NATIONAL VETERANS ORGANIZATIONS,
ETC., DATED JUNE 5, 1986. LETTER
APPEARS IN SENATE COMMITTEE ON
VETERANS' AFFAIRS HEARING BOOK #100-
938 CONCERNING S.1ll: JUDICIAL REVIEW
LEGISLATION, DATED APRIL 28, 1988,
PAGES 477 THROUGH 487. SUBMITTED INTO
SAID HEARING RECORD AS EXHIBIT "G",
BY PHILIP BE. CUSHMAN, NATIONAL
PRESIDENT, VETERANS DUE PROCESS, INC.
“Office of Congressional
and Intergovernmental
Affairs
Washington DC 20420
Veterans
Administration
June 5, 1986
Mr. Jon A. Mangis
Director
Department of Veterans Affairs
General Services Building
700 Summer Street, NE
Suite 150
Salem, Oregon 97310-1270
Dear Mr. Mangis:
“In accordance with our desire to maintain
close cooperation and liaison with state
offices and private agencies serving our
nation's veteran community, I am enclosing
copies of topical discussion papers
recently released pv the Veterans
Administration which I think will be of
immediate interest to you.
“Each of these papers address important
issues concerning the continued delivery
of VA health care, benefits and other
services to veterans in the future. The
immediate items of discussion and interest
are:
ere ee {ITEM #1 OMITTED} "2. Judicial
teeee {remainder of text of letter
omitted}
“Sincerely,
GAIL A. GOMPF
Director
Intergovernmental Affairs"
{EXCERPT FROM PAGE 5 OF:} “OVERVIEW OF
VA'S POSITION ON JUDICIAL REVIEW
Currently extended to veterans service
Organizations may have to be curtailed,
The providing of VA space and facilities
{pursuant to 38 U.S.C. 3402}, informal
access to adjiudicatory personnel,
etc., could be affected by judicial
oversight and increased representation by
brivate attorneys." ***** {BALANCE OF
"OVERVIEW" OMITTED}
{EMPHASIS ADDED}
LETTER DATED MAY 10, 1988, FROM JAMES
N. MAGILL, DIRECTOR, NATIONAL
LEGISLATIVE SERVICE, VETERANS OF
FOREIGN WARS OF THE UNITED STATES, TO
SENATOR ALAN CRANSTON, CHAIRMAN,
COMMITTEE ON VETERANS ' AFFAIRS,
UNITED STATES SENATE, WHEREIN MR.
MAGILL RESPONDED TO WRITTEN COMMITTEE
QUESTIONS. LETTER APPEARS ON PAGE
682-683, OF SENATE HEARING BOOK 100-
938, DATED APRIL 28, 1988, CONCERNING
8.11: JUDICIAL REVIEW LEGISLATION
{VA}
“VETERANS OF FOREIGN WARS OF THE UNITED
STATES
OFFICE OF THE DIRECTOR
MAY 10, 1988
The Honorable Alan Cranston
Chairman
Committee on Veterans' Affairs
United States Senate
Washington, DC 20510
Dear Mr. Chairman:
Please find enclosed the Veterans of
Foreign Wars response to questions
submitted by you with respect to testimony
given during the recent Senate vVeterans'
Affairs Committee hearing on April 28,
1988.
With best wishes and kind regards, I
Sincerely yours,
JAMES N. MAGILL, Director
National Legislative Service
“QUESTION 1. A. De you have any concern
ig enacted, your organization will
C-46
“RESPONSE 1. A. Yeg. AS you know, Title 38
of the United States Code provides that
the Administrator of the Veterans
Administration may, at his descretion
{sic} and, should space be available,
provide office and telephone services to
the major veteran organizations in
conjuction {sic} with the adjudication of
VA claims. We, of course, would prefer
Congress to mandate this space because of
the invaluable service rendered by the
major veterans service organizations.*****
{***** REMAINDER OF QUESTIONS AND ANSWERS
OMITTED }
TESTIMONY OF DR. ALCIDE D. PELLERIN,
SALEM, VA., BEFORE THE UNITED STATES
SENATE, COMMITTEE ON VETERANS'
AFFAIRS, NINETY-FIFTH CONGRESS,
CONCERNING SENATE BILL 364: VA
ADMINISTRATIVE PROCEDURE AND JUDICIAL
REVIEW ACT, ON SEPTEMBER aa, <d&8977,
PAGE 454. ALSO APPEARING IN’ SAID
HEARING BOOK AT PAGE 468, IS DR.
PELLERIN'S "OUTSTANDING {VA}
PERFORMANCE RATING AND SUSTAINED
SUPERIOR PERFORMANCE AWARD® {OMITTED}
"Tae 5 Pellerin. Mr. Chairman,
honorable members of the committee. Thank
you for giving me the Opportunity to
testify in this worthy cause. Please bear
with me if I appear Stage frightened,
because I am. This is understandable in
view of the fact that I have been walting
31 year for this moment. -
I am Alcide D. Pellerin, doctor of
medicine, Boston University of Medicine,
class of 1939. The pertinent aspect of my
curriculum vitae consists in YA employ as
\ het chee —
' re
reversed in every instance. There must be
more to it than mere coincidence.
Since time does not permit
presenting an expose of all that is wrong
with the VA, which would require several
hours if not several days, I shall limit
myself to presenting one outstanding case
i i a eer
of injustice and abuse of power on the
part of the BVA.
The case is that of Frank X, who in
1948 sustained a crushing injury to his
lower extremities necessitating
amputation. The surgical intern reported
that the amputation was at the junction of
the middle and upper third of the femur.
The VA promptly rated the disability
320 percent, some 20-o0dq years later an x-
ray of the hip showed the amputation to
have been 3 jnches below the hip, which
rated a 60-percent disability.
The VA gave him his due 60-percent
disability from the date of the x-ray.
Frank appealed, claiming 60 percent from
the date of discharge, The Board of
Yeterans' Appeals upheld the denial. He
asked for reconsideration. and a panel of
Frank again was able to get a second
a ! . L of
three sections of which one was nv
section.
During deliberations the BVA
contended that it was not guilty of an
error in the assignment of 30 percent
after discharge, and therefore the veteran
was not entitled to 4 retroactive 60
percent. i_argued that Frank was not
penalized for an error by the va
} es
I further argued that the issue was
not one of guilt and that guilt should not
be a basis for adjudication. i pointed
Out that the statutes do not say that only
when the BVA is guilty of making an
Laci a3 } } z ai
made retroactive, but they state thar any
time a decision is clearlv and
51
2)
unmistakably erroneous. retroactive
cases. Frank. wherever vou are, please
forgive me for having taken part in
robbing you of $40,000 of §50.000 in due
benefits.
Two wrong things stand out like sore
thumbs in this case. One, the arbitrary
and capricious interpretation of the law;
two the abuse of power by the
Chairman of the BVA in dictating and
imposing his will on the board
members.
Since the BVA is the last word, the
veteran has to grin and bear, and regret .
During the next few minutes I would
like to give you examples of some of the
dirty tricks used by some VA personnel to
achieve the VA objective of denying
claims. One 1s a case, a diagnosis of
"athlete's foot" was made during an
official exam. That was not to the liking
of the reviewing chief who, I assume,
wanted to serve his master well and at the
Same time feather his bed.
So} 13 = r
foot not found." The denial of the claim
was sustained by the BVA. This, I can
assure you, would never be allowed to
happen ina court of law.
Two, in getting an independent
medical expert opinion, the BVA typically
utilizes a medical school staff member who
is also on the staff of the VA hospital
associated with the medical school, who is
On some sort of a salary by the VA, and
who according to my research had been a
regular VA employee for several years at
some time or other in the past.
This "setup" inevitably
constitutes conflict of imterest, vet the
medical expert's word is On "38 par” with
the divine word of God. In contrast.
) , <a
a board certified specialist, savy from
some institution like the Mavo Or Lahey
Clinic, the Arthritis Foundation or the
Georgetown Medical Center, that opinion
Only serves to reonen his case, and is
considered trash by the va.
Not only does a court of law
conflict of interest, it encourages
Challenging and questioning of
expertise of an expert, which is
lifeblood of the legal system. One last
case: When the so-called va lodependent
medical expert was confronted with a4
finding, in the service medical record.
Based on that medical expert's
Opinion, the BVA issued a denial; again in
a court of law the BVA decision would
surely be reversed.
: the } : b)
€ lied heckea 3 b]
oe ; tf]
dictatorial power of the BVA. This runs
counter to our great American ideal of
democracy, which abhors and denounces
dictatorship, and to the Constitution,
which guarantees justice in a court of law
for every citizen.
Please, gentlemen, I beg you, make
it possible for the veteran to get
justice, and the only possible way to
accomplish this is not in the YA. kangaroo
courts but in the Federal courts, which
should be open to the veteran, as to the
nonveteran.
It is my understanding that even
aliens now have access to the courts, If
the veteran is not more deserving then he
is at least as deserving as the nonveteran
citizen or the noncitizen.
Senate bill 364 would take the VA
out of its lofty ivory tower and bring it
down into the realm of justice and fair
play for the veteran.
I wish to thank you gentiemen for
your patience and attention and hopefully
for your understanding of the plight of
the veteran.
Chairman Cranston. Thank you very
much, Doctor."
{EMPHASIS ADDED}
EXCERPT FROM CONGRESSIONAL BUDGET
OFFICE ‘CBO) "cost ESTIMATES",
PROJECTING THE COSTS FROM ENACTMENT
OF SENATE BILL 349: "VETERANS '
ADMINISTRATION ADJUDICATION PROCEDURE
AND JUDICIAL REVIEW ACT®. SAID
ESTIMATES APPROVED BY JAMES L. BLUM,
ASSISTANT DIRECTOR FOR CBO BUDGET
ANALYSIS DIVISION, APPEAR IN SENATE
REPORT NO. 97-467, DATED JUNE 8,
1982, AT PAGES 56 THROUGH 61.
**x***{DAGE 60} "It was assumed, based on a
BVA estimate, that the rate at which cases
57
N
*****{PAGE 61 OF REPORT} "The VA estimate
of the increase in the workload of the
General Counsel's office assumes a denial
rat® in BVA decisions of 72 percent. BVA
asserts, however, that the current denial
The lower denial rate will result in a
lower number of appeals and, therefore, a
smaller increase in the workload of the
General Counsel's staff."
{EMPHASIS ADDED}
HANDWRITTEN LETTER BY T.A. VERRILL,
ADJUDICATION OFFICER, SAN FRANCiSCO
VA REGIONAL OFFICE.
"Section Chiefs
"Although VAR) 1103 permits a
hearing anytime on any issue, we do
not have the resources to operate in
this way. Hearings should follow the
Statement of the case. Hearings are not
to be scheduled betore the SOU in all but
the most unusual cases. We can always
explain why a hearing is mot
appropriate at a particular stage i1n
processing. Ln cases previously
disallowed, the hearing process must Ds
discouraged as a means of presenting New
and material evidence. Personal history
can be presented on VAF 21-4158 Or
affidavits. ecitation of facts already
of record or new facts not tying the 1ssue
ce, e.g. a description of present
'
symptoms, will not heip tne case. I know
YOU Are aware of these points. but
the appellant isn't.
To effect this change in policy,
employees will obtain the initial of a
Section Chief on all requests to 21 to
schedule a hearing.
T.A. Verrill
ADJ. OFF."
{Emphasis added}
60
Qa
PORTION OF "REPORT" NO. 100-418 OF
THE COMMITTEE ON VETERANS’ AFFAIRS,
UNITED STATES SENATE, DATED JULY 7,
1988, CONCERNING S.ii: VETERANS '
ADMINISTRATION ADJUDICATION PROCEDURE
AND JUDICIAL REVIEW ACT. PORTION
QUOTED APPEARS AT PAGE 45 OF REPORT.
"5S. HEARINGS BEFORE TRAVEL BOARD
SECTIONS*
"AS discussed earlier under the
heading "Shady Methods to Speed Claims
Resolution," one of the drawbacks to the
BVA being situated in one location -- in
Washington, D.C.--is the lack of ability
on the part of many veterans to attend
personal hearings before the Board. This
1s particularly the case because of the
Peer me” pk
personal appearances before the Board in
Washington (19.5% in FY 87) and after
appearances before 4 traveling section
{30.6% in FY 87). Ina general effort to
permit an Opportunity for more
personalized appearances to those who are
unable to travel to Washington, D.C., the
BVA utilizes two alternative methods.
Under the first, the BVA authorizes VA
Regional Office adjudication personnel to
act aS agents for the BVA and, in that
Capacity, to conduct appellate hearings at
Regional offices. The transcripts of
these hearings are then sent to the BVA
for a decision by a Board panel. Although
this does not provide an Opportunity fora
hearing, the Committee is concerned that
it is clearly an inadequate substitute for
having the decisionmakers see and hear the
Claimant and other witnesses. In response
CO questions from the Chairman, the BVA
Chairman testified at the June 16 hearing
that there is no method for transmitting
to the BVA any information about the
hearing personnel's assessments of the
credibility of the claimant or other
witnesses.
The second alternative involves a
BVA Section traveling to various Regional
Offices and holding personal hearings for
a certain number of days. Rue to the
er ;
1 ims a ;
available. In FY 1987, 739 such hearings
were held. At the Committee's hearing,
Limi } 3 Li
. , lig
; i. ve ' bj
eptrion. Specifically, Mr. Eaton noted,
In this regard, the Committee notes that
the forn filled out by claimants to
request: an appeal to the BVA (Form 1-39)
presents only two options to the claimant:
One for a field hearing before Regional
office personnel, as discussed above, and
one for a hearing in Washington, D.C.
There is no option presented for selecting
a._=thearing before 4a traveling Board
section, According to Mr. Eaton the
Giving veterans' service Organizations a
certain number of hearings. and allowing
the service officers to designate who
receives a hearing. When asked at the
Committee's hearing why the veterans
service organizations find it desirable to
have hearings before the traveling Board
Sections, Mr. Eaton replied:
"It is always better in any case to
have a personal hearing before the
people who are deciding. There are
exceptions to that; but generally, if
you have a good case and you have a
witness who is at all credible, you are
better off facing those Board members
and telling them all about it. Those
are the facts of life.
Not only are travel board
allowances higher, but personal
hearings in Washington are higher -
- not as high as travel board -- but
there is not as much selection in the
Washington office as in the travel
boards. But they do pick and choose.
They are only allowed a few cases on
the travel board for- each service
organization. They can only have so
many because there is only so much
“time available for the travel board to
65
2)
‘
hear those cases. So, they pick the
best cases."
"When asked if there is a quota,
Mr. Eaton replied, "In effect, It has to
The Committee believes strongly that
7 —_ ett : } bef
traveling Board sections is contrary to
the accepted notions of evenhandness.
fairness, and justice in that every
individual should have an equal
eprportunity to obtain the most
beneficial process. Accordingly, the
Committee bill contains a number of
changes to the current scheme regarding
notice about allocation of traveling Board
hearings.***** {LAST PARAGRAPH OMITTED }
{EMPHASIS ADDED}
"LETTER TO THE EDITOR" OF THE
WASHINGTON POST, DATED JULY 1, 1986,
WRITTEN BY 4 MEMBERS OF CONGRESS,
REVEALING THAT VETERANS ARE DENIED
EQUAL PROTECTION OF THE LAW, BY NOT
BEING ALLOWED TO SUE THE VA, BUT THE
VA Is SUING LARGE NUMBERS OF
VETERANS. LETTER ALSO REVEALED THE VA
BLACKMAIL OF THE VETERANS
ORGANIZATIONS WHICH PROVIDE PREE
REPRESENTATION TO VETERANS CONCERNING
THEIR CLAIMS AGAINST THE VA, BY
THREATENED SAID ORGANIZATIONS THAT
THEIR "FREE OFFICE SPACE
TELEPHONE SERVICE. . 7 > / wes 4
BENEFITS, PROVIDED TO THEM NATIONALLY
"CONGRESS OF THE UNITED STATES
House of Representatives
Washington, DC 20515
July 1, 1986
Letter to the Editor
The Washington Post
1150 15th Street, NW
Washington, DC 20071
Dear Editor:
“Some opponents have taken issue
with your support of H.R. 585, a bill to
authorize court review of VA decisions and
to allow veterans the right to counsel of
their choice. As sponsors of the bill,
permit us to address just a couple of
points.
It is laudable that "as a matter of
principle, the VA doesn't view itself as a
Prospective litigant with the veteran."
Unfortunately, that statement doesn't
Square with reality. In _ the past four
years alone, the VA has filed suit
against more than 140.000 veterans,
for alleged benefit overpayments that
average $570.
of law, regulation, or fact made by the
VA.
Further, the VA's commitment to an
“informal and cooperative system" must be
called into question when the YA tells
: €
‘udicial lecislat) 61] ;
im the loss of the free office space,
furniture. _and telephone service
presently provided to these groups in VA
regional offices." {*****Balance of
letter omitted}
Sincerely,
DON EDWARDS
Ranking Majority Member
Veterans Affairs Committee
LANE EVANS
Chair, Vietnam-Era Veterans in Congress
THOMAS A. DASCHLE, Chairman
Subcommittee on Education, Training,
and Employment, Veterans Affairs
Committee
BOB EDGAR, Chairman
Subcommittee on Hospitals and Health
Care, Veterans Affairs Committee"
{EMPHASIS ADDED}
STATEMENT OF KENNETH T. BLAYLOCK,
NATIONAL PRESIDENT, AMERICAN
PEDERATION OF GOVERNMENT EMPLOYEES,
AT A HEARING BEFORE THE SUBCOMMITTEE
ON SPECIAL INVESTIGATIONS OF THE
COMMITTEE ON VETERANS ' AFFAIRS,
UNITED STATES HOUSE OF
REPRESENTATIVES, NINETY-SIXTH
CONGRESS, SECOND SESSION, CONCERNING
JUDICIAL REVIEW OF VETERANS CLAIMS,
NOVEMBER 19, 1979. PAGE 330 OF
HEARING BOOK. -
“The American Federation of
Government Employees, AFL-CIO, is pleased
to have the opportunity to submit its
views concerning legislation (H.R. 6181)
providing, among other things, judicial
review of certain final decisions of the
Administrator of Veterans Affairs. AFGE
represents over 700,000 personnel
throughout the federal government.
personnel, including personnel in the
Board of Veterans Appeals in the VA
central office in Washington, D.C.
Yet we must also observe that among
Qur membership considerable
Gissatisfaction exists concerning the
lack of access to the courts on the part
of veterans who wish to appeal final
determinations concerning benefit and
disability decisions made by the Veterans
Administration. In effect, under current
law, veterans have been relegated to
who are denied the same rights of judicial
review available to most other
72
2)
beneficiaries of federal entitlement
programs.
In this regard, we note that @
demonstrated need exists for the
Veterans Administration to be subject
to judicial accountability. We have
seen figures which clearly indicate that
the veteran making an appeal to the Bureau
of Veterans Affairs (BVA) is wunder a
serious disadvantage. Whereas appeals
to the Social Security Administration
are decided in favor of the claimant in
two out of three cases, actual results
support or favor the veterans claim in the
BVA in only gone out of ten cases.
AFGE recognizes that exact
comparisons between these very different
programs are difficult to make, but it
appears to us as though large numbers
of veterans have not received the
benefit of reasonable doubt on any
consistent basis. The informality of
the Veterans Administrations appeals
procedure, combined with the absence of
precedence in the disposition of cases,
leaves ._-wide discretion for
inconsistent mand uncontrolled
decision making by the regional
offices. In the absence of court review,
there is no effective institutional
check on arbitrary or impermissible
action.
We do not mean to imply, however,
that the dedicated career personnel in the
Veterans Administration who are involved
in the review process are not faithfully
executing their duty to veterans and to
the public. In fact, considering the
budget squeeze on the agency over the past
few years such personnel have done much to
uphold the integrity of the review
Process. The Office of Management and
pressure against government agencies
to control outlaya, and such pressure
can easily translate into tougher
guidelines and policies concerning various
entitlement and spending programs,
particularly when such policies are
not subject to any outaide review.
The Veterans Administration, for example,
has made several contracting-out decisions
in recent years which we believe cannot be
justified on grounds of cost-effectiveness
Or government efficiency and which have
harmed the delivery of services to
patients in the hospital system. In such
instances, considerations of false economy
have been placed above the needs of
federal workers, taxpayers and the public.
Finally, we would also like to point
out that in view of the numerous
outstanding problems faced by today's
veterans, particularly by those who fought
in Southeast Asia, it is imperative they
feel they have received the benefit of
full due process from the federal
government. There has been much recent
public concern about the plight of the
“forgotten veterans." We believe that
passage of legislation providing judicial
review in the claims process will show
Congress still cares."
{Emphasis added}
LETTER FROM NORMAN J. JOHNSON TO HON.
ALAN CRANSTON, CHAIRMAN, COMMITTEE ON
VETERANS' AFFAIRS, UNITED STATES
SENATE, DATED OCTOBER 11, 1977, AS
SAID LETTER APPEARS ON PAGE 786 IN
SENATE HEARING BOOK CONCERNING
SENATE BILL 364: “VA ADMINISTRATIVE
PROCEDURE AND JUDICIAL REVIEW ACT",
NINETY-FIFTH CONGRESS, FIRST SESSION.
“STATE OF CONNECTICUT
DEPARTMENT ON AGING
90 WASHINGTON ST.
HARTFORD, CONNECTICUT 06115
Tel. 566-7725
WILLIAM R. RATCHFORD
Commissioner
October 11, 1977
“Honorable Alan Cranston, Chairman
United States Senate
Committee on Veterans' Affairs
Washington, D.C. 20510
Dear Senator Cranston:
"I was scheduled to testify on S.
364 last month but I could not make the
personal arrangements necessary to do so.
Similarly, I have not found the time to
prepare elaborate written testimony. I
do, however, have insights into the
workings of the Board of Veterans’ Appeals
which I want to share with you and the
members of the Committee.
I was a “staff legal advisor" to the
Board of Veterans' Appeals for nine months
am i971°72. The “staff legal advisors"
are the attorneys who actually write the
Board's decisions, subject to review and
ultimate approval of an appellate panel of
two lawyers and one physician. r had
previously practiced law for two years and
the first thing I had to learn ar the
B.V.A. was to Shelve my notions of
professional objectivity and Rrocedural
due process.
given week, The fact of this quota system
was always denied by the panel members and
the front office; it was a well known
fact to the staff attorneys. Each week a
tally was circulated to all personnel
showing the number of decisions produced
by each attorney and the total for each of
the dozen or more sections of the Board.
There was clearly a competitiveness
between sections and among the attorneys
in any given section. One was expected to
produce a minimum of six decisions a week
and I was once cautioned by a panel member
not to exceed one dozen per week so as not
to drive up management expectations. I
cannot believe that justice is accorded
its due when the decision process 1S
managed in such a way.
oat Ll] Laci ted
3 Li
section and originating in the isolated
perspective of the panel chairman. (For
example, my section would allow service
connected Status for the ear condition of
tinnitus if it accompanied another ear
disorder for which service connection was
Or could be established. Another
appellate panel usually denied tinnitus
claims when a veteran already had service
connected status for an ear disorder. My
panel's reasoning was that since tinnitus
is a subjective condition, the existence
of other ear disorders was the best
oeidanion of it; otherwise tinnitus could
not be established to exist. The other
panel's reasoning, as explained to me, was
that if a veteran was “service connected"
for one ear condition he was already
getting his due.)
attorneys indicated that our respective
panels interpreted statutes, regulations
and precedent in haphazard patterns and
unwritten formulas ta the cases at hand.
The fact that decisions were written by
lawyers seemed more a function of
bolstering the legitimacy of the process
rather than one of actually conducting
professional inquiries into the facts and
applicable law of the cases.
Because cases were decided on
contemplated by the laws and regulations,
probably illegal. To be specific, in my
section there was a practice of absolutely
denying claims for service connections
where the service departments could not
produce any medical records. This was not
apn infrequent Dbroblem. and surely manv
valid claims were refused on these
grounds. To cover the situation and the
embarrassment of the loss of the records.
| oe 2 |
effect: “Service medical records do not
indicate treatment for the claimed
injury." Such evasion was common in cases
where there were no records.
Another disturbing aspect of the
appeals process and its freedom from
Outside review was the tendency to review
a veteran's service records for
indications of worthiness. A number of
proffered decisions were reversed by the
section because the facts were not
Overwhelming and the veterans'. records
showed infractions of military discipline,
even minor ones. Again, the biases and
lodividual standards of banel members
although the statutes mandate a liberal
interpretation. In one particular case I
took an advocate's position because I was
convinced of the merits of the veteran's
disability claim. I urged consideration
of the fact that the Social Security
Administration had made a determination of
disability. Qne of the section members
the treasury." (My own previous
experiences with Social Security
Gisability claims had led me to the
opposite conclusion. )
These experiences and criticisms may
seem minor but I believe they illustrate
the dangers of the present closed review
scheme of veterans' claims. Yeterans
‘ 1 faj =
ls opened to the review of an lodependent
I want to leave you with one final
example of B.V.A. attitudes: I once
drafted and dictated an appeals decision
granting service connection status for a
black, Korean action veteran. The
el-ments of the case were clear - His
lnduction physical examination report
lndicated normal feet. The separation
physical indicated "pes planus" or flat
feet, not an unusual development over the
course of Army service and one that can be
epee error ie a tae
that are made of it. The facts and the
law were clear, but the decision was
the claim.
characteristic!" I now wonder how many
decisions were written or decided by that
man in his thirty-odd years with the Board
of Veterans' Appeals?"
Sincerely yours,
Norman J. Johnson"
{Emphasis added}
c-ss$
STATEMENT OF DONALD H. SCHWAB,
DIRECTOR, NATIONAL LEGISLATIVE
SERVICE, VETERANS OF FOREIGN WARS,
AS A WITNESS AT A HEARING ON NOVEMBER
19, 1980, BEFORE THE SUBCOMMITTEE ON
SPECIAL INVESTIGATIONS, OF THE
COMMITTEE ON VETERANS' AFFAIRS, U.S.
HOUSE OF REPRESENTATIVES, NINETY -
SIXTH CONGRESS, SECOND SESSION,
CONCERNING JUDICIAL REVIEW OF
VETERANS' CLAIMS
"I will summarize a portion of my
statement with the understanding it will
be published in the record in full.
As this committee is aware, for more
than 30 years the VFW has agonized with
the judicial review problem. For a number
of years we opposed judicial review by
resolution, not always with unanimity but
always by majority vote.
At our 80th national convention held
in Dallas, Tex., im August 1979, our
position changed in that the voting
delegates rejected a resolution opposing
judicial review and accepted a resolution
after much debate and rewrite of the
resolution to support judicial review.
In the legislation to provide
judicial review of veterans'
administrative claims decisions pertaining
to matters of law and regulation, insofar
as the merits of the claim are concerned,
and review of the facts that are alleged
to be arbitrary and/or capricious.
Identical language is contained in our now
current Resolution 680 passed by the
voting delegates to our 8lst national
convention held in Chicago this past
August.
You may wonder, Mr. Chairman, and
rightly so after so many years, the
Veterans of Foreign Wars changed its
position with respect to judicial review,
and the following reasons are offered:
1. There are those who believe a
system which permits welfare or
Supplemental security income recipients to
seek court relief but denies the same
forum to veterans is flawed.
2. Many Vietnam veterans are aware
that the Veterans’ Administration, in
concert with the President's Office of
Management and Budget, attempted in 1973
to rewrite the rating schedule to their
advantage, believe the VA has been
insensitive to their needs and are
disenchanted believing that thev have nor
received timely. full. fair. and impartial
a | ci i
Claims of older veterans are often
viewed with a jaundiced eye simply because
they deferred filing. In the absence of
c-88
substantiating service medical records
Led b]
r ~~ :
made from remote memory.
3. One of the most frequentiy heard
complaints by our national officers in
their travels is the complete frustration
of those whose claims have been denied and
due to the finality statute of 38 U.S.C.
2l1l(a) are foreclosed from redress through
court action.
4. Many service officers are
bat tl ; ee
35.000 cases, The average allowances have
been 12.8 bercent of cases considered.
In the last 4 fiscal years, the variance
has been only two-tenths Of 1 percent in
that allowances in 1976, 1977. ang 1979
were p> Pe percent and in 1978. 12.5
percent. in 1980, 124 percent.
Restrictive language first surfaced
some 93 years ago with passage of the
Tucker Act in 1887 now encoded as 28
¥.8.c. 1346(d). Note 536 of the
annotation to this citation Clearly
reflects Congress' intention to prevent
court review of pension claims.
Coupled with the foregoing and
lending credence to administrative
finality has been the historically held
position of Congress and che courts that
veterans' benefits are gratuities and not
a right. President Eisenhower appointed
the Bradley Commission under Executive
Order 10588.
You will recall that the Bradley
Commission declared that military services
is an obligation of citizenship and that
veterans are not entitled to any more
consideration than nonveterans. Thus the
Commission joined the vociferous minority
opposed to special consideration for
veterans and provided a Roman holiday for
an unfriendly press which applauded the
courage of General Bradley and the
Commission and proclaimed that at long
last special consideration for veterans
would be tossed out the window.
Thanks to the wisdom of Congress,
this did not happen. In the Commission's
report, the following language is set
forth:
The gratitude of the Nation to those
who have served it in time of war is
fundamental in the whole concept of
American veterans' benefits.This tends
to place benefits in the category of a
gratuity to which the recipient (the
veteran) has no legal '‘'right', and
which the giver (the government) has a
legal right to withhold.
Mr. Chairman, while Veterans'
Administration claimants' access to the
Federal courts has been foreclosed,
potential recipients of other Federal
benefit programs took advantage of court
decisions to elevate the status of their
benefits from mere gratuities to the level
of statutory entitlements with vested
property interest.
This trend, which commenced in the
1960's. culminated in the landmark case of
Goldberg v. Kelly, 397 U.S. 254 (1970),
wherein the Supreme Court concluded that
welfare benefits are matters of Statutory
C-92
1] Like)
Mr. Chairman, it is a Strange lesson
in] ' indeed Lf ee
1 tl } '
, , ' al judicial
dependents, and survivors are foreclosed
from this same avenue.
If welfare benefits are not
gratuities, the word has lost its meaning.
Surely veterans' benefits are not
gratuities notwithstanding repeated
rhetoric to the contrary. No veteran has
ever received anything for nothing. At
the very least, those who have served
honorably in uniform during periods of war
and hostility have given years from their
lives, their families, and their personal
endeavors, if not their mental or physical
health or their very lives.
93
Q
This concludes my Summary, and I
will be happy to answer any questions you
may have.
Mr. Leach. Thank you, Mr. Schwab.
That was a very Stimulating presentation."
{Emphasis added}
EXCERPT CONCERNING "EQUAL PROTECTION"
FROM PREPARED STATEMENT OF SIDNEY
COOPER, NATIONAL LEGISLATIVE
DIRECTOR, VETERANS DUE PROCESS, INC.,
BEFORE THE COMMITTEE ON VETERANS'
AFFAIRS, HOUSE OF REPRESENTATIVES,
ONE-HUNDREDTH CONGRESS, SECOND
SESSION, ON SEPTEMBER 8, 1988,
CONCERNING "JUDICIAL REVIEW OF
VETERANS' APPAIRS", HEARING BOOK
SERIAL NO. 100-60, PAGE 412-445,
FOLLOWING EXCERPT AT PAGE 439.
"Is Mississippi, the Promised Land of
Veterans Benefits?
c-95
there are considerably higher too - 30%
greater in Mississippi: 43% greater in
Arkansas.
Non-service connected disabilities
likewise fare extremely well: me ie ae.
national average in Mississippi: 1.9 X in
Arkansas. Incredibly, there are 72% as
many Non-Service connected Claims in
Mississippi as there are Service connected
claims: in Arkansas. 60%. The national
average is only 31% which means that
Mississippians are either Sicker or
smarter than everyone else.
What explanation can there be for
this blatant favoritism? Deference paid
to veterans residing in Mississippi and
Arkansas should come as no Surprise to
Students of the v.A. and the House
Veterans Affairs Committee (HVAC). Cong.
G.V. Montgomery (D.Miss.) is the chairman
of the HVAC while John Hammerschmidt (R.
Ark) was its ranking Republican member.
Seniority and power obviously have an
impact on what veterans receive and from
which state.
Ld hb) ; A
; oo) ; ; ;' et)
> 7 ful hj
' hi ' |
eperations. Not the Congress; not the
Press; not the Courts - not the States -
not the NVSO's - not anyone!
Apparently, based upon the benefits
dispensed in 1985, States such as
California are being short changed $310
million, per year; Illinois, $204
million; Indiana, $70 million, whereas
“gravy train". No Satisfactory
explanation has been offered to explain
such large pension descrepancies.
~
97
2)
‘
Mississippi has provided the armed
forces with the lowest number of service
men (92.1 per thousand) whereas the
national average is 118.2 per thousand of
population. Yet they receive more claims
and higher per capita benefits. No wonder
Cong. G.V. Montgomery says the system
ain't broke! It does all right for
Mississippi and Arkansas.
Accordingly, based upon the 1985 VA
numbers, Mississippi is last in war but
first in the hearts of the VA.
(Note: All numbers and relationships
developed therefrom were
extrapolations derived from the vV.A.
Fiscal Year, 1985 reports furnished
the Congress) ."
{EMPHASIS ADDED}
LETTER FROM KENNETH E. EATON, CHAIRMAN,
BOARD OF VETERANS APPEALS (BVA), TO UNITED
STATES SENATOR GARY HART, DATED JUNE 30,
1982, INDICATING AN 11.3% ALLOWANCE RATE
IN_APPEALS THAT REACHED THE BVA DURING THE
30 YEAR PERIOD 1952 THROUGH 1981, AND A
12.9% BVA ALLOWANCE RATE DURING THE 12
YEAR PERIOD, 1970 THROUGH 1981.
“Board of Veterans Appeals
Washington, D.C. 20420
“Veterans
Administration
June 30 1982
Honorable Gary Hart
United States Senate
Washington, DC
Dear Senator Hart:
99
Q
"Your letter of June ll, 1982, was
referred to the Board of Veterans Appeals
(BVA) for an answer to the second question
regarding cases appealed to the Veterans
Administration.
We do not have complete statistics
for 30 years. The best information we
have:
© Appeals that reached the Board of
Veterans Appeals - FY 1952-1981 (30
years):
BVA. QGUCELBLOGR. « cccneses 989,303
Allowed by BVA...... 111,338
Oo Appellate actions - FY 1970-1981 (12
years):
Appeals initiated (Notices of
Disagreement filed) 670,977
Allowed in field
i 111,401
BVA decisions.......... 363,746
Allowed by BVA........ 47,044
Allowed in field
offices following
Remand by BVA......... 11,736
Combined allowances....170,181
I hope this information will be
helpful.
Sincerely yours,
KENNETH E. EATON
Chairman"
{ON THIS PAGE, WOULD HAVE APPEARED A
SINGLE PAGE OF VITAL BOARD OF
VETERANS APPEALS STATISTICS (z.8.
ALLOWANCE RATES, ETC.), SUMMARIZING A
10 (TEN) YEAR PERIOD. UNFORTUNATELY,
SUPREME COURT FORMATTING RULES
NECESSITATED 10 (TEN) PAGES TO SET
PORTH THE IDENTICAL INFORMATION.
CONSEQUENTLY, THE RESULTING
PRESENTATION DEPARTED FROM THE
BREVITY AND CLEARNESS CONTEMPLATED BY
SUPREME COURT RULES, AND,
ACCORDINGLY, Is OMITTED. SAID
STATISTICS AVAILABLE UPON REQUEST}
EXCERPTS FROM WASHINGTON POST
NEWSPAPER ARTICLE, BY STAFP WRITER
BILL MCALLISTER, DATED PEBRUARY 8,
1990, ENTITLED "THE FIRST FOOTPRINTS
IN THE SAND --- NEW VETERANS' CLAIMS
APPEAL COURT HOLDS INITIAL SESSION"
***** {PARAGRAPH 2} “It took years of
debate and an act of Congress, but a pew
federal court-the first federal judiciary
body to be created in 30 years-held its
initial meeting yesterday to hear the
claims of the nation's aggrieved
veterans."
***** {PARAGRAPH 15} "The court located its
offices at 1625 K Street NW, two blocks
from the VA's central office and Nebeker
iChief Judge} has made clear that he wants
a sharp line drawn between his court and
the VA. When veterans ask about the
relationship, the judge said he responds.
{Emphasis added}
c-104
“INFORMAL GRIEVANCS", DATED MAY 141,
1987, FILED WITH THE CHAIRMAN OF THE
BOARD OF VETERANS APPEALS (BVA), AND
SIGNED BY SEVERAL INDIVIDUALS AT THE
BVA. SAID GRIEVANCE WAS SUBMITTED AS
AS A PART OF BEBXHIBIT *J" TO THB
PREPARED STATEMENT OF RICHARD E.
O'DELL, VICE PRESIDENT, VIETNAM
VETERANS OF AMERICA, INC. (VVA),
DATED FEBRUARY 18, 1988, AT A HEARING
BEFORE A SUBCOMMITTEE OF THE
COMMITTEE ON GOVERNMENT OPERATIONS,
HOUSE OF REPRESENTATIVES, ONE
HUNDREDTH CONGRESS, SECOND SESSION.
SAID VVA TESTIMONY APPEARS BETWEEN
PAGES 95 AND 195 OF THE CONGRESSIONAL
HEARING BOOK. EXHIBIT "J" WHICH, IN
PART, APPEARS BELOW, IS ON PAGES 14l
THROUGH 144.
C-105
INFORMAL GRIEVANCE
"The undersigned, Members of the Board of
Veterans Appeals, both individually and
jointly, hereby present an 1oformal
Grievance against the Chairman of the
Board of Veterans Appeals based upon a
policy of awarding bonuses to various
Gecisions produced in their individual
sections,
ee
System of handling the number of appeals,
the Chairman is engaging in acts,
Dbractices, policies and courses of conducr
LO pressure Board Members and Secrions
2nLo increasing the number of cases belong
processed each year without regard co the
amount of time thar Must be devoted fo
C-106
each individual case in order to give it
adequate -legal and evidentiary
consideration and in order to render a
Careful, correct, fair and impartial
***** {PARAGRAPH #5} "The current system
rewards carelessness but penalizes
diligence. Obviously, a section that
produces the quota of 40 decisions per
week spends at least one hour of time for
each case. A number of sections have
found that proper processing of this
amount cannot be done and have fallen
behind the weekly quota. On the other
hand, for example, a section that produces
£0 cases per week spends on the average
only one half an hour on each case. It 1S
C- i107
obvious that a one half hour review cannot
be as complete as a one hour review. It
is also apparent that the high producing
section is rewarded for doing less work on
each case. The record will show that on a
number of occasions in the past, certain
sections have processed more than 80 cases
in a single week. We dispute any
contention that under these circumstances,
fach case was given a thoughtful ang
thorough review by each Board Member.
***** {PARAGRAPH #7} “Another, and perhaps
the most serious Manipulative method of
exploiting the current system is. by
Obtaining signatures on decisions by Board
the decisions despite not having reviewed
the case. This so-called “courtesy"
SYStem not only deprives our Claimants
from a review to which they would
c-108
***** {PARAGRAPH #9} "With regard to the
same system of "courtesies", any section
member can give an “in house courtesy"
Signature, thereby accomplishing the same
result as obtaining a "courtesy" signature
outside the section. Al] _ that is required
are cooperative Board Members who are
C-109
even to increase allowance rates) are
illegal. In the case of Association of
Administrative Law Judges, Inc., v.
Heckler, 594 Fed Supp 1132, decided
September 10, 1984, the Court observed
that the Administrative Procedures Act
contained a number of Provisions to
safeguard the decisional independence of
ALJ's. They are exempted from performance
appraisals to which other Civil Service
employees are subject. ALJ's do not
receive monetary awards or periodic step
increases based on performance. (Emphasis
Supplied). Cases must be assigned,
whenever possible, in rotation. (In that
case, the Social Security Administration
waS pressuring the ALJ's because of
excessive allowances.
***** {PARAGRAPH 16} "In Summary, the
undersigned, both individually and
jointly, are aggrieved by the system used
by the Chairman to either grant or
withhold monetary awards based on the
number of decisions produced during the
counting period. The grievance is based
en the fact that the award system cannot
; sini = fai = ia]
= € ;
bj — ; ;
certain sections. The system penalizes
those individuals who do more work, 1.e.,
spend more time reviewing each case and
rewards those who do less work on each
case and who subvert the established
review process by eliminating at least one
review. With regard to the entire
grievance procedure, the undersigned will
exhaust all of its administrative remedies
prior to taking any other action."
{EMPHASIS ADDED}
EXCERPT {PAGES 238 AND 239 OF HEARING
BOOK} FROM THE STATEMENT OF ROBERT O.
MULLER, PRESIDENT, VIETNAM VETERANS
OF AMERICA, INC. (VVA), DATED JUNE 4,
1986, BEFORE THE HOUSE OF
REPRESENTATIVES, COMMITTEE ON
VETERANS AFFAIRS, CONCERNING E.R.
585: "JUDICIAL REVIEW OF VETERANS
CLAIMS", NINETY-NINTH CONGRESS,
SECOND SESSION. HEARING BOOK SERIAL
NUMBER 99-52, VOLUME 1, PAGES 230
THROUGH 279.
were
{Hearing Book page 238} 1. “VA Errors
Although the need for judicial
review does not hinge on VA errors, it is
beyond dispute that the VA sometimes makes
erroneous decisions. Recent oversight
hearings of the BVA makes this clear. For
example, the following exchange took place
C-112
the Board of Veterans Appeals:
Mr. Applegate:
Later on we will be receiving a
comment from a witness about
allowance rates from the various
sections of the [BVA], and that
perhaps some panels have consistently
lower allowance rates than others
Have you observed this and, if
you have, do you have any comments
about it.
Mr. Eaton:
C-113
There are a couple of sections,
Or Board members, I suppose, who are
rather low in their allowances. But,
you know, you can't tell them what
to do.
Mr. Applegate:
YOu can have equal cases, identical,
where one will get more than the
c-114
Also at these BVA oversight
hearings, the American Legion testified
that
C
AS an important part of our
involvement with the issue of
veterans suffering from post-
traumatic stress disorder (PTSD), we
have given special attention to
reviewing the decisions of the Board
of Veterans Appeals involving claims
for service connection or an
increased rating for PTSD. There
have emerged from this on-going
review several problems which have
been brought to the attention of the
Chairman of the Board of Appeals and
ong., lst Sess. 10-11 (1985) (hereinafter
4285 House Hearings").
C-il1§
other VA Officials without
Satisfactory resolution.
In our judgment too many valid
Claims are being denied by the
regional offices, and the denials are
Subsequently confirmed by the Board
of Veterans Appeals .3
VVA has observed this problem as well."
{EMPHASIS ADDED}
3 Iq.
at 40 (Statement of Philip R.
Wilkerson, Assistant Director for Claims,
National Veterans Affairs and
Rehabilitation Commission, The American
Legion).
EXCERPT FROM VA MEMORANDUM DATED JUNE
1, 1987, FROM THE CHIEF MEMBER, BOARD
OF VETERANS APPEALS, TO THE VA DEPUTY
ADMINISTRATOR, SUBJECT: “GRIEVANCE:
INTERFERENCE WITH DECISIONAL
INDEPENDENCE OF BOARD MEMBERS". SAID
EXCERPT APPEARS AT PAGE 10 OF EXHIBIT
"NN", ATTATCHED TO STATEMENT PRESENTED
BY RICHARD E. O'DELL, VICE PRESIDENT
AND CHAIRMAN OF COMMITTEE ON
ADVOCACY, VIETNAM VETERANS OF
AMERICA, INC. (VVA), DATED FEBRUARY
18, 1988, BEFORE THE HOUSE OF
REPRESENTATIVES, HUMAN RESOURCES AND
INTERGOVERNMENTAL RELATIONS
SUBCOMMITTEE OF THE COMMITTEE ON
GOVERNMENT OPERATIONS. HEARING BOOK
PAGE 180.
{eevee VVA Exhibit "N", page 10} “4.
Reversing Majority Decisions: On various
C-ii7
occasions, where the majority of the Board
Members, either on an Original or an
expanded panel have voted to deny a claim,
and there has been a request for an
administrative allowance, the Chairman has
allowed the claims. (See 38 U.S.c. 210 (b)
and 212(a); 38 C.F.R. 19.184) (See also
{a portion of this sentence redacted}.
Heretofore, the Chairman had intervened to
allow only when the majority had requested
an administrative allowance or where there
waS an expanded panel with an even split.
This obviously represents an activist
approach and is in derogation of the
Judicial independence of the Board
Members.
5 4 -
an_impartial manner: On a number of
occasions, including a staff meeting on
November 3, 1986, the Chairman admitted
c-118
that on various occasions, either where
there has been a dissent or a request for
a reconsideration, he has assigned another
Board. {***** Remainder of letter omitted}
{EMPHASIS ADDED}
C-119
Statement of Arthur Bernklau
Before BVA, 3/24/1988
A portion thereof follows from page 4:
2b) " The July 26, 1985 Cat-Scan and
report were brought to the attention of
Dr. Peter Altner ( Northport VA hospital).
Upon examination of the Cat-Scan, Dr
Altner gave me a perfect verbal reading
pointing out the disc herniations,
fracture and spondylolisthesis; and then
proceeded to write in my records
¥ positive for disc degenerative disease
only " When I asked him, " why he didn’t
write down what he told me ? " He replied:
"I can’t write down what I told you. It
would make the wicie orthopedic department
look bad since we refused you a Cat Scan
for 6 1/2 years and misdiagnosed you. ! "
" That brief encounter sums up the
Situation as much as anything could- but
there's more, much more."
C-120
BVA Opinion,
or a portion thereof from
April 4 1990
" Several private physicians have given
the opinion that the veteran's back
disability is, by itself, so severe as to
render him enemployable. We do not
question the sincerity of those opinions.
hidbvee, the Clinical findings show
nothing more than an inability to function
in employment requiring the use of the
back."
note: there were no other clinical
findings other than those presented by
Mr. Bernklau.
C-121
Appellant's Brief
before U.S. Court of Veterans Appeals
On the issue of a prior service injury, a
portion thereof follows:
5) " The VA has argued until recently
that the veteran had a prior service back
injury despite Dr. Joseph G. Levack's,
( the family physician ) unchallenged
notarized statement of 2/26/55:
"My records show no previous injuries
other than a fractured nasal bone. At no
time was there any complaint relating to
his back. "
Moreover, the appellant's induction exam
Of 6/17/54 shows absolutely no evidence of
a prior service injury. Item 38, of said
examination Clearly evidences that his
" spine, other than musculoskeletal] "
portions of his body were normal.
As further evidence of the Army's belief
that appellant was in top physical
C-1i22
( as continued from C-121 )
condition, he was assigned to the Signal
Corps and required to climb poles, which
he successfully negotiated until the
accident of November 19th, 1954.
Appellant was honorably separated from
service June 24, 1955 with a service
connected back injury which stands in
sharp contrast to the physical induction
examination which shows no back injury.
Induction exam, 6/17/54, item # 38, shows
a normal spine whereas the separation exam
Of 4/4/55, item # 38 shows an abnormal
spine.
Consequently, the vA's continued
assertion of a prior service injury until
recently is inexcusable, unsupp
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.