Material found herein should not be interpreted as legal advice.     Legal Disclaimer Notices

S.2694 :   The 'Veterans' Choice of Representation and Benefits Enhancement Act of 2006' (to amend title 38, United States Code)     to remove certain limitation on attorney representation of claimants for veterans' benefits in administrative proceedings before the DVA, and for other purposes.   This bill was passed/agreed to in Senate 3 AUG 06 by unanimous consent and referred to House Committee after being received from the Senate.   Last major action was unfavorable executive comment received from Veterans' Affairs.   To support this bill and/or send a message to your Senator refer to USDR.

  Veterans' Choice of Representation Act of 2006
    A bill introduced by U.S. Senators Larry Craig (R-Idaho) and Lindsey Graham (R-South Carolina) would allow veterans to hire lawyers to represent them in their efforts to obtain federal benefits from the U.S. Department of Veterans Affairs.     See Legal Counsel for more details.

"Buk Frank"
.. your paralegal

    Franco has been doing this legal crapola for a long time.     Since 1996, as a matter of fact, in a dispute of my (accumulated) assets in California where my ex-wife (over five years) attempted to enrich herself unjustly.

    I fixed her booty, good.     .. she walked away with enough money to pay her attorney fees.     I know, her attorney demanded the settlement check of $13K be sent directly to her;   her office.   <rofl>

    Click here, to visit the old site.     As a paralegal, I assisted both women and men (probono) in their legal paperwork.     If you think the guides for U.S.C. and C.F.R. are sophisticated/complicated, take a look at the Discovery Tips for Family Superior Court!

VA:     "Who are you???"

Moi:   .. yah'worse nightmare, mate.
 

Legal Terms - Evidence

    It is clear that most veterans submit their disability claims with little knowledge of the process, the adversary nature of the V.A., and legal knowledge -- let alone, understand regulations and law that govern such claims.     Before I begin - yet another volume of information to prepare you to go it alone against Goliath, here are some pertinent legal links for you.

  Landmark Ruling @ All Vietnam-Era Vets in S.E.A.

United States Code   Code of Fed Regs   Service Connection
Claim Supporting Documents
Citings     Legal Precedence   Definition   Plausible   "Well-Grounded"
VA Evidence Responsibility   Presumption Law

    One of the first observations that I made when filing my disability claim was the total lack of legal procedure given the claimant, the veteran.

    The Agency, Veterans Affairs, is under little obligation to provide information regarding a claim.     In fact, after two certified correspondences detailing questions as to my claim and no response, I learned the hard way that there is no obligation to notify the claimant which is directly contradictory to the VCAA/2000 Act signed into law by President Clinton.     See also § 5103A   Duty to Assist Claimants, § 5103   Notice to claimants of required information and evidence, § 5107   Claimant responsibility; benefit of the doubt, and Adjunct to § 5107.     Now, please keep in mind, that these statutes of law are as a result of Congressional action and that they all either preclude or supersede any federal regulations designed and/or published by the V.A. Agency, CFRs.

    In fact, every Vietnam Era Veteran should read the above Landmark Ruling which impacts the abusive promulgation of regulations by the V.A. Secretary under the authority given same to prepare regulations, re:   § 501 Rules and regulations in Chapter 5 of Title 38 of the USC; "carry out those laws [and] are consistent with those laws."

    Therefore, the only really significant CFR under the Agency Title 38 is § 3.159   Department of Veterans Affairs assistance in developing claims.

Quote:

    (b)   VA's duty to notify claimants of necessary information or evidence. (1) When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. If VA does not receive the necessary information and evidence requested from the claimant within one year of the date of the notice, VA cannot pay or provide any benefits based on that application. If the claimant has not responded to the request within 30 days, VA may decide the claim prior to the expiration of the one-year period based on all the information and evidence contained in the file, including information and evidence it has obtained on behalf of the claimant and any VA medical examinations or medical opinions. If VA does so, however, and the claimant subsequently provides the information and evidence within one year of the date of the request, VA must readjudicate the claim.
/End Quote/

    Now, Part (b) of 3.159 above, all sounds good and reasonable, but in practice, hardly followed.     As a legal mind, in any court in the country, each party in a dispute whether civil or criminal is afforded a period of "discovery" where legal information and documents are exchanged.     In fact, a party that has been adversely affected by such impairment during discovery may have sanctions given the other party or case dismissed.     In practice, legal counsel salivates over the possibility that the other party abuses the legal system and therefore, benefits their client, and mind you, quietly let same happen.

    If you skipped the first couple of paragraphs above, let me reitterate the key comment here:   "Last major action was unfavorable executive comment received from Veterans' Affairs."     Why?     They, the V.A. Agency, does not want to play fairly by rules of law; they want the (proverbial) deck stacked against the claimant.     This is obvious in my own claim and those veterans that have seeked by advice out and listen to what happened to them in initial claim denials.

Exculpatory Evidence

    Evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt.     In many countries such as the United States, if the police or prosecutor has found such evidence, he/she must disclose it to the defendant.     The prosecution's failure to disclose exculpatory evidence can result in the dismissal of a case.     Source:   Wikipedia

Documentary Evidence

    Evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term actually include any media by which information can be preserved.     Photographs, tape recordings, films, and printed emails are all forms of documentary evidence.     Source:   Wikipedia

Documentary versus physical evidence

    A piece of evidence is not documentary evidence if it is presented for some purpose other than the examination of the contents of the document.     For example, if a blood-spattered letter is introduced solely to show that the defendant stabbed the author of the letter from behind as it was being written, then the evidence is physical evidence, not documentary evidence.     However, a film of the murder taking place would be documentary evidence (just as a written description of the event from an eyewitness).     If the content of that same letter is then introduced to show the motive for the murder, then the evidence would be both physical and documentary.     Source:   Wikipedia

Authentication

    Documentary evidence is subject to specific forms of authentication, usually through the testimony of an eyewitness to the execution of the document, or to the testimony of a witness able to identify the handwriting of the purported author.     Documentary evidence is also subject to the best evidence rule, which requires that the original document be produced unless there is a good reason not to do so.     Source:   Wikipedia

Hearsay in United States law

    For the law in England and Wales see Hearsay in English Law. For other uses, see Hearsay (disambiguation).

    "Hearsay" is a legal term that describes a class of evidence generally disallowed by most courts in the United States.     The "Hearsay Rule" is an analytic rule of evidence that defines hearsay and provides for both exceptions and exemptions from that rule.     The "Hearsay Rule" is as varied as the jurisdictions that define it.     That is to say, there is no all-encompassing definition of hearsay in the United States.     However, most evidentiary codes defining hearsay adopt verbatim the rule as laid out in the Federal Rules of Evidence [1] Rule 801, 28 U.S.C. App. See Rule for Courts-Martial 801, Manual for Court Martial, United States (2005 ed.).     Historically the rule against hearsay is aimed at prohibiting the use of a person's assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court on the stand where he may be placed under oath and cross-examined.     Source:   Wikipedia

Lay a foundation

    In law, to lay a foundation means to provide sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits or testimony of witnesses.     Material evidence is important evidence that may serve to determine the outcome of a case.     Exhibits include real evidence, illustrative evidence, demonstrative evidence, and documentary evidence.     The type of preliminary evidence necessary to lay the proper foundation depends on the form and type of material evidence offered.

    The lack of foundation is a valid objection that an adverse party may raise during trial.

Source:   Wikipedia

Burden of proof

    In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action.     More colloquially, burden of proof refers to an obligation in a particular context to defend a position against a prima facie other position.     Source:   Wikipedia

Evidence

    The law of evidence governs the use of testimony (e.g. oral or written statements, such as an affidavit) and exhibits (e.g. physical objects) or other documentary material which is admissible (i.e. allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).     Source:   Wikipedia

Guide to the Federal Courts - Glossary

Review

    All the legal terms described above have one thing in common:   providing factual information to your disability claim.     It is apparent that many of these issues related to what is termed a "well-grounded" claim under the laws made obsolete by President Clinton and the Doctrine of "Benefit of the Doubt."     If that is the case, why in the world do I take the time to review them then?     Simple.   As I emphasized at the top, the V.A. as an adversarial agency will do its best to intimidate a veteran claimant and have them walk away from an error decision of denial.

    Let me make that a little clearer:   The V.A. will deny your claim without foundation.     That means that you have submitted a substantially complete claim, with documents of evidence as to your medical condition, military service and testimony in the form of a supporting statement attachment, and the V.A. will deny the claim on no legal basis.     (Veterans) claimants will be told, for instance, that they have to provide proof in the form of affidavits from those that would be aware of their circumstances and of course, the veteran is ambushed.

Benefit of the Doubt Doctrine

    The law, plain'n simple states that plausible situations claimed by a veteran should be found in favor of the veteran.     The V.A. has been found time and time again not to adhere to the law in this matter.     In fact, their caselog or backlog is due to the incompetence, system-wide, of the Regional Offices of every state (without exception) and nothing more.     There is not a need for more judges.   There is a need for new staff .. put the existing adjudicators to work in jobs George Bush feels are there, eg, Burger King.

    To, first of all, drill a veteran of the Vietnam Era or surviving the World War II Era is ludicrous.     To ambush them with demands for evidence and affidavits from others some 35 years ago is just another form of legal "smoke screen."     Why?     The V.A. does not want to be liable for the mistakes of war.     Look at the Iraqi war today and the liabilities in lives and injuries that this Congress and administration as made in an amount to exceed One Trillion Dollars in veterans healthcare for life.

    It is a disgrace.     The Agency that is supposed to take care of those that answered the call to service and sacrificed their lives and/or health is a national disgrace and the people need to know it.     Right now, veterans and their families are denied disability compensation every month and many are dying before their claim has been legally settled.     What happens to the claim then?     It dies with the veteran (claimant.)     That's right.     The V.A. is holding out while the veteran is dying from some pretty serious illnesses.

The Good News

    The Veterans Board of Appeal is the first element of the judiciary system for the veteran in their appeal of a denied claim by the Agency.     It is not an agent of the V.A.     If you like to think of it this way, it is a mediator to the Agency and the veteran making a claim.     It is impartial to the Agency desires to deny the veteran that just due.

    Until I (personally) have my own teleconference, or learn more about the procedure, research has shown that the Board is an independent judiciary setting in which the V.A. has little influence as to the laws set forth by our Congress.     V.A. interpretations of the law and administrative adjudications have little to influence the Board of Judges or Judge.

    It is important, at that point of appeal review, that you have all your claim documents properly on file so that the judge or judges assigned your hearing have been properly informed.     No judge likes surprises and it can only hurt your case.     Testimony at the hearing that goes into a new area not found in your file is grounds for negative action such as remanding your case and loss of additional time.

Summary

    You should be represented by either legal counsel or someone that has been trained in such claim procedures.     You should never plan to "go it alone."     You must insure that your representative has all the information necessary to prepare your claim and support you.


    .. not helpful

    It seems that some find my editorial comments "not helpful."     I give those critics my "short answer."     Here, I will publish my "long answer" and that is:   tough.

    The V.A. deserves all the bad press they get.

    As health issues go, and their associated legal implications in veteran claims, the V.A. has (repeatedly) denied financial compensation to those that served and suffered from the mistakes of those in charge without recourse and all the intimidation the federal government can muster.

    I am a veteran, a Boston Yankee, and damn proud to stand up for those less fortunate!   .. born the Year of the Dog and this dog has never stopped at barking!



"Buk" Frank
Vet Advocate
(702) 363-3290  

Army Engineers
697th "Pipeline"
Qui Nhon to An Khe
Army Bio

Mailing Address:
Frank Picchione
8613 Freeport Ln
Las Vegas, NV
89117-5566

.. literary version lost .. somewhere.

How you can help
.. versus being an obstacle

    Send me (official) copies of documents related to your own claim(s) that may help another vet, one.     Provide a release to publish same and indicate whether you wish to remain annoymous and/or state that you wish the material to be held until such time that your claim has been resolved.

    Korat - 1968 (Mother's Day) 44th Engr Group

You may wish to bookmark this page and return often to see what has been added based upon other veterans' information.

Legal Disclaimer:   The information provided herein is or should not be interpreted as legal advice.     Only an attorney licensed to represent you in your state of residence should be consulted on legal issues.     The purpose of this site and information is to assist any disabled veteran in filing their claim and the more information you have, the amount of preparation you have done, the better you will be prepared to fight the V.A.

"Stand up for what you believe in!
Or, you will surely ..
die a slow, miserable death..."
1976 - SP/6 Frank Picchione - USARPAC Hqs/MISO/Payroll Team


Artillery Officer Candidate - Private Picchione - Ft Sill, Oklahoma 1967


Private Picchione, Clerk School Graduate *; home in Brockton, Mass 1967
"Home of Rocky Marciano, Undefeated Heavyweight Champion Boxer of the World"
Dover Street .. yes, the same street Franco grew up on...
More (nostalgia) on Franco can be found.

* WWII Old Hospital Area, ** Ft Leonard Wood, Missouri
Pat Sajak of "Wheel of Fortune" fame attended the same 71B Clerical School in 1968;
changed his MOS and became a disc jockey for Armed Forces Radio in Saigon

** Today, the hospital is gone and sitting on that land is the U.S. Army Corp of Engineer School
A formidable college campus up the hill from the Fort Hospital built in 1965



Advocate for all veterans
that served with honor

CFR TITLE 38 -- PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS PART 4 -- SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A -- General Policy in Rating Sec. 4.23 Attitude of rating officers.     It is to be remembered that the majority of applicants are disabled persons who are seeking benefits of law to which they believe themselves entitled.   In the exercise of his or her functions, rating officers must not allow their personal feelings to intrude; an antagonistic, critical, or even abusive attitude on the part of a claimant should not in any instance influence the officers in the handling of the case.   Fairness and courtesy must at all times be shown to applicants by all employees whose duties bring them in contact, directly or indirectly, with the Department's claimants. [41 FR 11292, Mar. 18, 1976]    Now, read this ~ Vets For Justice Benefit Guide "Do not screw with this G.I.!" - Rocco Francis J. Picchione

     

Franco Picchione, PhD (Piled Higher & Deeper)

[THIS SPACE IS RESERVED FOR MORE SHIT]