Veterans' Advocate - Las Vegas, Nevada       September, 2007

   

Dear Sir:

Kurt Priessman is a fellow veteran and constituent of your state.

I am an advocate for veterans since filing my unsettled claim on 4/21/05 in Las Vegas, Nevada.

In essence, Senator Akaka's proposed amendment does the bidding of the (a) Executive Branch for (b) the Veterans Affairs Agency.

It is designed to overturn the Judicial Branch rulings both in the special court for the appeal by veteran claimants, the Board of Veterans Appeal (BVA,) and higher courts of appeal such as the 9th Circuit Court in San Francisco that recently found in favor of all Vietnam Era veterans suffering from leukemia.

The Secretary over the past year has demonstrated his arrogance and abuse of authority by (a) first invoking an unlawful stay to claimant disability claims and (b) injunction ordered earlier this year that the Secretary claimed would affect an estimated 832,000 Vietnam Era veterans potential (potential) claims.

My claim is in appeal and my claim is unlawfully being stayed with contempt of court by the Agency based on a 4/13/07 ruling, Ribaudo v. Nicholson.

This adversarial position hi-lighted by the judge rendering his opinion in the 9th Circuit Court should come as no surprise in so much as the traditional reputation, not the rhetoric, has been to deny and to fight disabled veterans tooth and nail and where possible deny their initial claim without adequate justification, as in my case.

The Legislative Branch has a unique responsibility in the separation of powers our forefathers designed in a system of checks and balances. I do believe that you will agree, ie, cooler heads prevail, that it is not the intent of such a system to enact legislation specifically designed to do nothing more than to overturn and/or harm the decisions created by the Judicial Branch.

As a judge in Haas v. Nicholson, in a panel of judges, found that the Agency and its Secretary are always the Appellee in all matters that comes before the BVA and therefore, has a unique position of both administrator and defendant in disability claims. This precarious position when properly (and ethically) performed concedes the Appellant's right to (a) hearing and (b) decision rendered by the court as a mediator.

The 9th Circuit Court and BVA this past year has made favorable decisions for Vietnam Era veterans that served in Southeast Asia and Navy personnel offshore. Without adequate legal grounds for appeal, the Agency has been placed in the ackward position of denying due process without sufficient foundation to move forward in the appellant courts and therefore, has seeked legislation designed specifically to create a remedy.

This remedy should be considered unlawful attempt to abuse the authority of the Executive Branch over the authority vested in the Legislative Branch. Any other interpretation is lacking substance.

I thank you for your time and I wish to ask you for your support in killing any such attempt to literally reverse decisions rendered by our Judicial Branch. Thank you, sir.

Warmest regards,

Frank Picchione
http://shop-las-vegas.com/VBA
8613 Freeport Ln, Las Vegas, NV 89117-5566             Phone (702) 363-3290

re:     http://shop-las-vegas.com/VBA/VBA-Major-Decision.htm

SAN FRANCISCO -- An appeals court chastised the Department of Veterans Affairs on Thursday and ordered the agency to pay retroactive benefits to Vietnam War veterans who were exposed to Agent Orange and contracted a form of leukemia.

    "The performance of the United States Department of Veterans Affairs has contributed substantially to our sense of national shame," the opinion from the 9th U.S. Circuit Court of Appeals read.

    It was not immediately known how much the department would have to pay under the order or how many veterans would be affected.

    VA spokesman Phil Budahn said late Thursday that officials were reviewing the ruling, and declined further comment.

The V.A. has been entrusted with administering and providing
the healthcare and disability benefits
for millions of veterans.
Their actions, or lack thereof, is a national disgrace... - Franco




(Ribaudo v. Nicholson)   O R D E R

    The Court granted Mr. Ribaudo's petition for extraordinary relief in an opinion issued on January 9, 2007.     Ribaudo v. Nicholson, 20 Vet.App. 552 (2007) (en banc), appeal filed (Fed. Cir. Apr. 2, 2007) [hereinafter Ribaudo].     Therein, the Court (1) held unlawful and ordered rescinded the Board of Veterans' Appeals (Board) Chairman's Memorandum 01-06-24; and (2) ordered that "[t]he Secretary will proceed to process the appeals that were stayed in accordance with that unlawful memorandum 'in regular order according to [their] place on the docket'" and will apply this Court's decision in Haas v. Nicholson, 20 Vet.App. 257 (2006), appeal docketed, No. 07 7037 (Fed. Cir. Nov. 8, 2006) to those appeals. Ribaudo, 20 Vet.App. at 561 (quoting 38 U.S.C. § 7107(a)(1)).     The Court also outlined a procedure by which the Secretary could file a motion to stay the precedential effect of Haas.   Id. at 560-61.

    On January 16, 2007, the Secretary filed an opposed motion requesting that the Court (1) stay the precedential effect of Haas pending judicial resolution in Haas, (2) stay the adjudication of cases potentially affected by Haas, (3) rule expeditiously on the motion to stay, and (4) delay entering judgment in Ribaudo until the motion to stay has been ruled upon.

As the moving party, the Secretary has the burden of demonstrating that the factors weigh in favor of granting his requested stay.

    The Court recognizes that "[w]henever decisions of one court are reviewed by another, a percentage of them are reversed." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (maintaining that "[w]e are not final because we are infallible, but we are infallible only because we are final"). To determine the likelihood that any ruling of law will survive appeal, the best objective test is the degree to which it is rooted in well-established law.     Where the decision of a court takes only a small incremental step from established law or relies on a strong analogy to clear precedent, then there is reason to believe that reversal is unlikely.

[Additionally,] because the Federal Circuit's jurisdiction is limited to review of our interpretations of law and regulation, the focus is not on the specific facts of the case to be stayed. See 38 U.S.C. § 7292; Forshey v. Principi, 284 F.3d 1335, 1359 (Fed. Cir. 2002) (en banc); Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991) (recognizing that the Federal Circuit's review of our statutory and regulatory interpretation will be conducted de novo). Simply put, because the Federal Circuit can review only our legal determinations, its review will always be de novo.

To be continued ...

Senate Floor Vote If the proposed amendment does not die in committee, the Senate Floor Vote will be published in its entirety.

	vnvets.blogspot.com
	Open Letter to Senator Akaka
	Water Volatility   (Disstilling)       Sailor Report
	Related topic:   Navy Personnel vaccinations lead to diabetes.

Editorial:     Is the cause for contracting diabetes, or cancers as result of (a) exposure to herbicides airborne, (b) drinking water improperly distilled, (c) military vaccinations upon enlistment and/or recurring, or (d) some other unknown factor which the government refuses to acknowledge or produce scientific studies?

    We do know one (1) thing, though:     rulings such as Haas by the BVA and class actions for victims of leukemia in the 9th Circuit have a tendency of correcting any of these issues in favor of the disabled veteran.

    The United States Government made a horrific mistake in using biological warfare chemicals in Southeast Asia, throughout the Pacific and even in the United States.     Unfortunately, instead of conceding liability or benefit of the doubt for those that served and answered the call of duty, the government choses to both fight them and as the "fox guarding the hen house," stonewall disability claims.

    If this legislation by Senator Akaka is allowed to be enacted to amend the current law, it will literally wipe out years of appeal and judicial decisions ruled at the highest levels of our Judicial Branch of government.

    The V.A. then can add to its already disgraceful positions of (a) arrogance and (b) abuse of authority -- ruthlessness.

    Why is it this way?     Why does a disabled veteran have to be adjudicated and reviewed by the same opposition party that they have to fight in our courts of appeal?     The "playing field" becomes more equal with the representation of an attorney versus the pathetic, self-serving, conflict-of-interest VSO system and what does the V.A. want to "introduce?"     Attorney testing.     Testing designed to create an atmosphere in which pro bono attorneys may feel it is not worth the effort and therefore, the disabled veteran loses.

    When will there be proper reform of this important agency which veterans of military service must report to?     Leaving the adjudication process of claims to a body of adversarial committee that answer to no one, ie, no due process delay penalties, or interest.     No recourse for those locked up in the system.

    If I was a lesser man, the intimidation and abuse the V.A. shits on us would be reason to give up/quit.     Especially, the sicker you get from your medical condition and because you are weak and unemployable, the welfare of both the veteran and those that are lucky enough to have their family not abandon them, financially, stand by them.

    And, those that do the right thing, ie, whistle blowers, are run out or intimidated to drop their "allegations."     A society that on the one hand wants warriors to fight their battles for them, ie, not have a universal Draft, and on the other hand, shit all over them when they become a victim of service.

    When you have Presidents that say one thng, and do another; Congress that passes such legislation in the quiet of night, holding sessions that they hope the American people will either not pay attention or not care.

    We are in the Communication Age.     An age in which there are editorial blogs online and the ability of advocates like myself to spread the message, or get the message out.     Let me leave you with this final thought:   vote.

Bring our Troops home today! No "if's", "and's", or "but's."		It is time for the Iraqi people to take responsibility for their own destiny! A military solution for a country with cultural differences in their own people is impossible. No more warrior blood sacrificed for a democracy that will not take action to stand up on its own!
Our men and women have performed superbly! They have done more than one could expect of anyone! While our men and women died in August, this democracy took a vacation to Vienna ..