# Petition for Writ of Certiorari — Bernklau v. Brown, 113 S. Ct. 1847 (1993) (No. 92-1381)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2139%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993

## 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unpublished policies, practices and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

“ / 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, unsupportable and
a clear and unmistakable error in
accordance with 38 CFR 3.105 (a). Further

it is patently ludicrous.

Note: In all of the described instances,

documentation was shown evidencing the

factual accuracy of the above statements.

Cc - 123
Appellant's Brief
( before Court of Veterans Appeals)

Excerpts thereof follow from several

Doctors Statements

1) Dr. Bernard Jacobs re Examination of
6/27/88
Diagnosis: " post traumatic
Spondylolisthesis, lumbar disc syndrome
and compression fractures. "
Opinion: " In my opinion the patient's
Symptoms all emanate from his injury while
in service. He is currently totally
disabled and I believe this permanent. "
note: Dr. Jacobs was formerly the head of
the orthopedic department of the VA's
Bronx Kingsbridge hospital and later
served as orthopedic consultant to the vA.
2) Dr. Gabriel Ricciardi’s statement of
3/21/89.
Acknowledged that Appellant was a patient

Of his from 1973 - 1978, however: " ......

C-124

as of that time, he could be considered

totally disabled. "

3) Dr. Anthony A. Lucella, re exam of
10/5/89:

Opinion: He is suffering from
intervertebral disc sysndrome ( herniated
discs at L3/4, L4/5, and L5/S1), as well
as severe 2nd degree spondylolisthesis
L5/S1, residuals of a fracture at L2, and
sciatic nerve involvement, which totally
precludes him from seeking any gainful or

marginal employment. "

4) Dr Guan Hiok Yu re exam of 10/4/89.
Opinion: " At the time of my examination ,
I doubt that he will ever be gainfully or

even marginally employed. "

Note: At the time of the statement, Dr. Yu

was employed by the VA.

Letter ( 5/1/90 ) from BVA Chairman Eaton

via Mrs Barbara Bush ( First Lady ) to

Arthur Bernklau, petitioner.

" In short, it is my opinion that the
April 4, 1990 , appellate decision denying

you entitlement to a total rating was

based on sound legal, evidentiary and
medical principles. That decision

contained a Discussion and Evaluation
section which should further assist you in
understanding the reasons for a denial. I
can assure you that your claim was
carefully analyzed by the Board Members,

so as to accord you every consideration,

but that, ultimately their conclusions had
to be consistent with the evidence and
applicable law and regulations."

( emphasis added )

C-126
Chief Judge Nebeker’s (CVA) Statement

Pursuant to an Interview Published in

V azine of Jun 199

Excerpts therof:

DAV: what are you doing to address the
large number of pro se cases ?

Nebeker: " It's rough, it's a problem. We
didn't expect that so many veterans, two
thirds of those before the Court, would be
unrepresented."

" The VA has an appellate shop which is
growing in experience and professionalism
and the unrepresented veteran doesn't have
a chance. ...... until we can beef up the
representation of these folks, we've got a
serious problem on our hands. "

" One reason is that with the $10 limit on
lawyer's fees, there hasn't been any
crossing of the threshold by lawyers.
Also, bar associations have taken the
position that veteran's law is such a
highly technical specialty that lawyer's
aren't competent to handle it. "

" I can appreciate that, Lord knows, I'm
still getting acquainted with it. When I
came to this Court I had zero
understanding of the complexities and the
regulatory administrative process that
underlies the administration of veteran
affairs."

C-127
United States Court of Veterans Appeals
No. 92-561
Samuel A. Aronson, Petitioner
V

Jesse Brown, Secy of Veterans’ Affairs

Matter re:Recusalof CVA Judge Donald Ivers

Before a CVA Panel consisting of Chief
Chief Judge Nebeker, and Mankin and
Steinberg, Associate Judges.

Chief Judge Nebeker writing for CVA hela

"that, under 28 U.S.c. 455, the judges
decision whether to recuse himself under
the facts of this case, was the province
of the individual judge and he is not
subject to review within this court."

" Section 455 is a self enforcing statute;
whether a reason exists in a case making
it improper for a judge to participate in
it is a decision confined to the
conscience of that judge. "

" Moreover, section 455 includes no
provision for the referral of the question
of recusal to another judge. "

" Section 455 decisions should be made by
a judge sitting in case; no provision is

made in statute for transfer of issue to

another judge. " _

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2139%3A1. Public record. Not legal advice.