Veterans' Advocate - Las Vegas, Nevada       September, 2007

   

Dear Sir:

I want to thank you very much for calling me personally after receiving my fax regarding Senator Akaka's proposed amendment (S. 2026) to the provision for "presumptive exposure to herbicides" in for veterans of the Vietnam war era. Your last comment that you would take another look at the proposed legislation is all one could ask of his Senator.

re:     "[not] to those who served only in waters offshore [or] in airspace above."

This amendment would overturn the recent rulings in the Veterans Board of Appeal, Haas v. Nicholson (16 Aug 06) and more recently the 9th Circuit Court (San Francisco) for veterans suffering from a form of leukemia.

I am sure you will agree that many court rulings have a "blanket affect" and may very well open gaps (or seal them depending on your point of view) to veterans that otherwise may not be eligible for disability benefits. Like President Clinton signing into law in 2000 before leaving office the VCAA/2000 which provided for reform in the Veterans Affairs as an agency responsibility to notify, keep informed and provide for in adjudication of such disability claims a doctrine of "benefit of the doubt" versus the steadfast rule of law of a "well-grounded" claim or case in a court of law.

The People, we veterans, feel we have only one avenue to access the laws and that is through the courts. The V.A. as an agency should be held to the same standard. That is, when they can not win on appeal in our courts a lower court ruling whether it has "blanket affect" on a class of people or for a specific citizen, it should be upheld and not reversed in the most abusive use of power of authority.

Volumes have been written on our policy of the "Separation of Powers," and I am sure now that you review this "by request" amendment submitted by the Executive Branch to overturn rulings by the Judicial Branch in favor of a class such as Vietnam era Navy personnel that the Legislation Branch should stay clear and wide from such attempts.

"A man who spent 18 years on the federal bench surely understands the importance of checks and balances and knows how to say no to the President when he oversteps the Constitution."

- Senator Harry Reid on the nomination of Judge Michael B. Mukasey for Attorney General

September 17 , 2007

It is both fitting that the nominee has been a federal judge, sitting on the courts at the federal level for so long, and "knows how to say no to the President when .." and we know very well that this too is an incidents of the only purpose of such legislative amendments is to overturn the court rulings that were in favor of a class of veterans, a very large class that deserves are respect and honor and not abusive nature.

Senator Akaka will be remembered by veterans of all services irregardless of branch based upon such landmark legislation. Lankmark to overturn landmark court rulings.

Please understand that this has nothing to do with the superb healthcare that the V.A. and those given responsibility to provide such care give. I have been a V.A. patient since 1992 and now, with kidney failure, I would be lost without this generous support.

What I am asking of you is to understand that many veterans lose their dignity when confronted with severe medical conditions and can no longer provide for themselves and the compensation available to us through the V.A. corrects all that.

Thank you sir. If I can be of any further assistance including participate in a committee hearing, I will be more than happy and enthusiastic to do so. As I said on the phone, I maintain information for veterans fighting the V.A. for disability claims and your Senator Ensign is recognized for the outstanding job he is doing in Congress and my personal thanks for being there for the Marine family, a 19-year old first casualty in Las Vegas, and speaking a few kind words at his funeral. The Marine Color Guard was very nice, but the presents of the Senator made the ceremony glow.

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 ..