"There is no honor greater than to be listed amongst the casualties of the war."

    Just how many more veterans' names should be on The Wall in Washington, D.C.?     Make no mistake, 60,000 Americans lost their lives in S.E.A., but there are thousands more that came home, and suffered til death, or loss of integrity due to medical conditions, or homeless for PTSD that should also be on that Wall.

    I will be a crusader til the day I die for such additions, a disgrace to this government; a cover-up of the realities of war and political conflict by our leaders   ".. that were too busy."     Not only those that were deemed (certified) by the V.A. administrators as "service-connected," under our laws, but every man and woman that could have been presumed to be.     I want my name up there with our comrades that died for yet another stupid cause.

3 More Names Added to the Wall   27 Apr 07     The Memorial
- 2 of which due to service-connected medical issues.

Intro - The Wall of Shame

    The above is a preface to this section of information.     It is meant to point out just how rare it is to have names added to The Wall in Washington, D.C. for veterans that died from medical conditions after the war versus casualties on the field of battle.     Medical conditions that were adjudicated as service-connected.   You see, this section is designed to speak loudly of the disgrace that the V.A. is, is to veterans and the poor treatment while they were alive and their survivor dependents left with nothing.


    Between the V.A., hereafter referred to as "agency," and Congress, laws have been passed to protect the government against "unnecessary" payments to veterans, dependents and associated interest and penalties for delays in providing those benefits.     In fact, recent scandals in the agency relate to the paying of extravagant bonuses for "jobs well done."

    You see, it makes a whole lot of sense to provide regional executives incentive for processing, or lack thereof, disability claims, adjudicating same in favor of the government (denial) a few thousand dollars (up to $33,000) then to pay out thousands of dollars in veterans disability claims.     Now, a spokesperson for the agency may make a (politically-correct) statement that it is their responsibility to insure that fraudulent claims are not paid, all at the expense of hundreds of valid claims, of course.

A Forgotton Generation of Veterans - Vietnam Era ..

    Faced with an onslaught of disability claims by Vietnam Era Veterans, the agency secretary simply told the regional offices to hold them.     That's right.     No (legal) motion in court; what has been termed an unlawful stay of a recent court ruling.     Since then, though, the court has (mysteriously) granted a stay motion until such matters can be appealed.

    And, everyone knows what that means .. injunction on adjudicating claims affected by the legal precedence that would concede exposure to toxins, or agent orange in Vietnam or Southeast Asia.     If you don't, it means "indefinitely."     You see, the agency has no defense regarding the ruling and the findings that the agency improperly promulgated its regulations for adjudicating claims.

    You can see just how hard the agency is working to present a legal brief demanded the end of last year (2006) by counsel representing the veteran in the matter of Haas v. Nicholson.     Nothing has been done.     In fact, in the Ribaudo ruling where the agency was granted their stay recently, there was nothing in the realm of sworn affadavits submitted by the agency as to the harm of processing such claims and anything to substantiate their position.

    The more you learn how our government works, and those that have become casualties of war, the more it will make you sick.     For instance, did you know that a veterans claim will die with him if it is not settled before his death?     And, that means any surviving dependents will be left denied as well, ie, "hanged out to dry."     Someone in Congress thought that that was fair.     I think of it as "shame," "disgrace" and the world deserves to know how they treat those that answered the call to "country and duty" .. took the time versus get a deferment(s).

    Today, we have an "all-volunteer army" and many seem to feel that that should change the rules of engagement.     That is, you volunteer; suffer the consequences of their own actions, to volunteer.     After all, historically speaking, the mistakes that our leaders have made in the past will repeat themselves in the future, or did you know that?     Our leaders have a very bad track record of not learning from history whether military strategy or world diplomacy versus wars.

    You can depend on it .. happening again, and again and again.     So, what's wrong with a little "insurance policy," ie, rhetoric that goes like this:   they volunteered, knew what they were getting themselves into, so, there is justification for (a) low balling disability ratings, (b) denying or zero-rating disabilities, (c) unsubstantiated claims of "pre-existing" medical conditions and on and on .. sure saves the government (and taxpayers) a helluva a lot of money, ie, entitlements.

    There will be some overlap or redundancy provided in this section of disgrace and shame, but it is only because the entire veterans advocacy section is growing so that many (succinct) facts as to scandals that no longer can be covered up may fall through the cracks .. a lot like veterans' disability claims.

Have your story published here ..

    I would like to publish your story whether first hand or from a surviving spouse.     It is important that such stories be told versus become a matter of vague, unsubstantiated hearsay.     Vietnam Nurses comforting a wounded soldier.
No one is denying the sacrifices many of our comrades suffered on the field of battle.     We just feel that there should be equal protection for those that have suffered long after the war is forgotten.

    I look forward to hearing from you, preferably by email so that I can publish in your exact words and not mine, ie, editting.     I'm a little wierd that way.     Many publishers, or editors prefer to edit what is published.     I prefer your voice to come across.     You can still phone me at (702) 363-3290; always happy to talk with other veterans or their family; answer questions that I can, or be of any help that I can.

Warmest regards,


Franco Picchione
Veterans Advocate

Ribaudo Ruling   ( Argued December 6, 2006       Decided January 9, 2007 )

C. Clear and Indisputable Right to the Writ

In any event, the effect of the Secretary's action in compelling the Board Chairman to issue Memorandum 01-06-24 is abundantly clear –- so long as he does not want to, the Secretary believes that he is empowered to never apply this Court's decision in Haas.     It is telling that Board Chairman's Memorandum 01-06-24 fails to even acknowledge the existence of this Court's decision in Ramsey.     Further, the Secretary might choose to apply a Federal Circuit or U.S. Supreme Court decision in Haas, but that too is unclear, particularly in light of the Secretary's conduct in Gardner.     Indeed, at oral argument, counsel for the Secretary was reluctant to identify any particular event that would trigger the revocation of Board Chairman's Memorandum 01-06-24.     Simply put, the delay at issue in this case is of indefinite duration -– a duration that conceivably includes efforts by the Secretary to legislatively reverse an unfavorable result in the U.S. Supreme Court.     This we cannot accept.

Editorial:     Why would a judge, in a V.A. Board, alude to such implications?     He is saying:   agency loses even in the United States Supreme Court that the Secretary would continue to pursue it with Congress, legislatively.

Summary in Ribaudo Ruling

    In sum, although the Secretary characterizes the issuance of Board Chairman's Memorandum 01-06-24 as a proper exercise of his "inherent authority" to manage the docket before him, he possesses no authority, inherent or otherwise, to stay, arbitrarily and unilaterally, the processing of appeals merely because he disagrees with a decision of this Court in a proceeding to which he is a party.   See infra at 5-7.     To hold otherwise would be to allow an executive agency to nullify the effect of a judicial decision.   See INS v. Chadha, 462 U.S. 919, 951 (1983) ("The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, [l]egislative, [e]xecutive, and [j]udicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.");   Marbury v. Madison, 1 Cranch 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").     This we will not permit.

Editorial:    This is why in other places I have said these judges deserve the "Red Badge of Courage" per the JFK standard.     The judge is explicitly stating the facts and the primary issue is the agency secretary does not have the (inherent) authority to deny a court ruling as this Bush administration secretary has.     And, the bottom-line of what can and can not be permitted to happen, ie, responsibility of the judicial branch of government to "say what the law is."

    We therefore conclude that the petitioner has satisfied all three conditions for the issuance of an extraordinary writ.     Because the appeals process before VA is halted as long as the Secretary's directive and Board Chairman's Memorandum 01-06-24 continue in effect, and direct appeal to the Secretary or Chairman would likely be futile, the petitioner lacks adequate alternative means to attain the desired relief.   See Cheney, 542 U.S. at 380.     Further, because the law does not give the Secretary and Board Chairman the authority to unilaterally stay cases before the Board because they disagree with a decision of this Court or pending an appeal to the Federal Circuit, the petitioner has also demonstrated a clear and indisputable right to extraordinary relief.   Id. at 381.     Finally, as discussed above, we are convinced that the issuance of a writ is warranted under these circumstances.   Id.

Editorial:    Plain'n simple, the desired Writ by the petitioner has been substantiated as the V.A. system does not provide any other alternative for appellant action.     The agency has acted as judge and jury and this can not be permitted.

    Accordingly, the petition is granted.     Board Chairman's Memorandum 01-06-24 is unlawful and we order that memorandum rescinded .   See 38 U.S.C. § 7261(a)(3) (providing that the Court may set aside "decisions, findings, conclusions, rules, and regulations" of the Board or the Secretary "found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").     The 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 to those appeals. 38 U.S.C. § 7107(a)(1).     Of course, the Secretary is not precluded from filing a motion to stay the effect of this Court's decision in Haas -- an option that has been available to him since August 16, 2006, the date on which the Court issued that decision.

Editorial:    This is a very powerful conclusion of the facts:     [the] secretary has always had the option of filing a motion for stay on the prior Haas ruling, but because of personal doubts, I'm sure, that they would not prevail, chose to proceed in an unlawful manner.     Keep in mind, the use of the adjective "unlawful" is that of the Board judge(s) and not an arbitrary choice of negative description on my part.

Conclusion in Ribaudo Ruling

    On consideration of the foregoing, the Court concludes that the petitioner has demonstrated a clear and indisputable right to a writ.     The petition is therefore GRANTED to the following extent:     Board Chairman's Memorandum 01-06-24 is ordered rescinded.

    The Secretary will decide Mr. Ribaudo's appeal "in regular order according to its place upon the docket," and will apply this Court's decision in Haas.   38 U.S.C. § 7107.

Editorial:    The only authority the agency secretary has in his control is the administration of the Board docket; that unlawful memo was supposed to be rescinded providing a clear path for other appellants in the system, ie, class action versus individual.

Of course, not to be over-ruled ..

Order in Ribaudo Ruling

  ( Argued December 6, 2006     Decided January 9, 2007     This Order April 13, 2007)

    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.     On January 24, 2007, the petitioner filed a motion to dismiss the Secretary's motion on the basis that it must be filed not in this case, but in Haas.     Separately, the petitioner also has filed an opposed motion for the Court to order the Secretary to show cause why he should not be held in contempt for violating our January 9, 2007, order granting the petition for extraordinary relief.

Editorial:    Again, not to be undone, the secretary proceeded in a legal manner with a stay motion noted above and had an obscure ruling in his (secretary) favor allowing the agency to stay all claims yet to be adjudicated, but not affecting those at the appeal stage, some 1,500.     But, until you read the final Order of the Court, the footnotes, you will not see that the favorable ruling was made without really any legal basis.     That is, the agency did not present anything more than "baldface" statements versus sworn affadavits substantiating an injunction.

More Details

    You see, one may conclude that the agency (Secretary) is going to do what he wants, irregardless of legal precedence in which the agency disagrees.     As the administrator for veterans benefits, you can be sure that the interest of the claimant is not a consideration.     In fact, the above Order in Ribaudo Ruling points to the fact that the agency can not provide a defense of (a) irreversible harm and (b) ability to prevail upon appeal of the under-lying Haas ruling.

    The agency can simply "stone-wall" a claimant and deny financial asssistance through disability payments.     Therefore, circumventing the purpose of the Petition for Extraordinary Relief.     Read carefully, please, the two documents regarding Ribaudo:   (a) Ribaudo Ruling, and (b) subsequent Order in Ribaudo Ruling.

Have they no shame?

    The simple answer is "No."     The agency has the status quo of the government judicial bureaucracy to play games against any veteran in need.

    The agency must feel justified, after all, they are providing healthcare benefits in a priority system based upon service-connection rules (of law) and just because they refuse to pay a decent disability rating payment to the claimant, no big deal.

    If you missed that last point, it is related to the "cart before the horse" issue.     The veteran is not acknowledged as a service-connection condition for both disability compensation and service at the appropriate priority level.     Therefore, everything from making an appointment to associated co-payment for related pharmaceutical requirements is at a lower priority.

    The claimant is not only denied just disability compensation, but placed in the system as a "second-class citizen" or veteran for not being deemed service-connection.     He will receive annual notices for maintaining enrollment in the V.A. Healtcare System, eg, financial means tests and told time and time again of his lower priority .. that helps those at the desk refuse service pending availability (at that lower priority.)

    In other words, the veteran is screwed out of service-connection compensation to maintain a certain standard of living and all healthcare is provided on a "catch can" basis because he is treated as non-service connection.     And, you say "Why?"     Simple.     The adjudication process is invalid.     It is administered in a way that the veteran can be sure not to get a "fair shake" and be placed on hold indefinitely, anticipate an appeal process that places him in a backlog for years and finally receive retro pay without interest or penalties.

    It is a win/win administrative model for an agency that does not care one bit about the medical complications of military service of its veterans, but how to deny benefits to these veterans and save the government the costly affects of veterans benefits paid out.

    The observations made in Order in Ribaudo Ruling by the panel of judges point to such reality:   no substantial argument for a stay of legal injunction on the prior Haas ruling and only the simplest presentation of case.     Where is the Haas appeal going?     A:no where.     Legal brief .. defense .. there is none.

    The leading panel judge in the Haas ruling was also a member of the panel for the Order in Ribaudo Ruling and gave an undeniable opinion as to the likelihood of success on any appeal of same .. nada.

    If ever a "deck was stacked" against the class of veterans, it is how the agency does business.

V.   Conclusion in Ribaudo Order

    In this instance, the only issue properly before the Court is the Secretary's request to stay the processing of claims on appeal to the Board that might be affected by the Haas decision, which is now on appeal to the Federal Circuit.     The Secretary falls far short of demonstrating that the processing of claims on appeal to the Board should be stayed.     He has not demonstrated a substantial likelihood of success on appeal in the Haas case.     To the degree the issues on appeal are serious and substantial, he has not demonstrated that the other factors weigh heavily in favor of the status quo, to wit:   he has not demonstrated that he would suffer irreparable harm, that other parties interested in the proceeding will not suffer substantial injury, or that public policy weighs in favor of a stay.     Indeed, the totality of the circumstances and facts in this case overwhelmingly demonstrate just the opposite. ²³ There is simply no basis for granting the Secretary's motion, and it should be denied.
 
The only good defense is a good offense ..

    This class of veterans are held indefinitely in limbo; Congress will not be taken any intervening action on behalf of this relatively small group of veterans that as the "clock ticks" are dying before their claims are processed, or intimidated into submission some where along the way.     See my actions to date.

    If we can not bring the public attention to this problem, it is difficult to shame the agency into proper response.     The current agency secretary was a political cabinet appointee based upon loyal service to the GOP in other associated political committees.     And, for those that think President Bush was going to appoint a secretary with compassion for disabled veterans, you better think again.

Ribaudo Legal Issue

    Veteran Nicholas Ribaudo filed a Petition for Extraordinary Relief.     This judicial option is meant to circumvent the system when a claimant can demonstrate a need either medical or financial or both and their case placed on the docket for hearing.

    The V.A. Board agreed with the petitioner Nicholas Ribaudo and the matter was argued until an Order by the Court was issued on April 13, 2007.     The Order was worded in such a manner that the overall affect was "class action" and meant not only to affect Ribaudo's appeal, but the appeals of an estimated 1,500 claimants in the system.
 
Under Investigation   15 May 07 - Email to Senator Harry Reid's office

Senator Reid's response, 18 May 07 email:

    Thank you for your recent inquiry. I appreciate knowing your views.

    I have contacted the Department of Veterans Affairs on your behalf and have brought this action to the attention of the appropriate officials.     They have been asked to review your letter and provide a written response.     In the meantime, if you feel that I can be of assistance in any other way, please let me know.

    My best wishes to you.

Sincerely,

HARRY REID
United States Senator

HR:ss

Briefs:   VA     Haas     Source:   NVLSP

Editorial:    This (response) should be a good one.     But, ole Franco is dying waiting ..     re:   "Fox guarding the hen house"     First of all, there is absolutely no excuse for preparing an appeal defense nine (9) months hence.     See the (immediate) appeal of the Ribaudo Order given January 9, 2007; motion filed January 16, 2007, and granted January 26, 2007 (properly.)

.. One week later     See Ribaudo Petition for Extraordinary Relief Court Order.

    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.

    If you are a part of this class action, ie, stay of claim processing due to Haas, please email your Congressional representatives in both the Senate and House; asking them where the legal brief and other documents for the government appeal is.     Ask them to provide you with a copy of these documents.

    The Bush administration does not like to be accountable for their actions.     It is time that they be made accountable for the dire needs of veterans.     The entire agency system for adjudicating veterans' claims may be thought of as having flaws and excuses abound in their own defense which ultimately creates a backlog at the appeal judicial stage.     This is because they do not want to pay benefits to our veterans.     They have historically ignored their needs, otherwise, they would begin disability payments prior to completion of the investigation and when found invalid, stop same and either proceed to collect those payment benefits, or simply drop the matter.

    Congress treats matters of having the Draft reinstated as a political "hot potato" and does not want to address the manpower and equipment needs of our all-volunteer army, but when it comes to the casualties of war both seen by KIA and medical complications years later, they (collectively) would rather look the other way.

    It is a perfect system of incompetence where no one can blame the other in a three-branch system of government.     Oh, the primary blame will be placed on the executive agency, but what is not understood by the American people is that those, like myself, caught up in the judicial system is a result of actions, or lack thereof, of the legislative branch.

    The judiciary unique to veterans affairs is caught in the middle; attempting to resolve legal issues with an executive agency that prefers to proceed with unlawful acts.     Unlawful acts such as when it loses in Court, ignoring the ruling, staying without proper court motion(s) and in general, doing what it wants irregardless of the legal rules of law and public policy founded on legal precedence.

    For a V.A. Reviewing Officer to ignore citings provided in support of my claim is a perfect example of "creating work" for the appeal court, ie, backlog.     The system does not need more judges.     They need competent administrators in the first place.

    A recent scandal of paying agency executives across the board nationwide hefty annual bonuses without justification other than saying that they were required to retain "competent staff" does not compute with reality.     Details

Food for thought -- if the agency staffing is so competent and deserving of large bonuses, then why is its #800 Help Line in such horrible shape?     Details

    If you can answer the following questions in favor of the administration, the agency, then we can not convince you that the agency is working against the claimants:   Why does the agency refuse to grant extraordinary relief for a petitioner that has shown the court valid needs?     Why is the agency taking an adversarial position as to veterans' benefits, in the first place?     That #800 Help Line referenced above illustrates the level of misinformation dissiminated by the agency .. is it designed to create a "stop gap" on future claims, or simply incompetence?     Why would the government and the Veterans Service Organizations (VSOs) be against legal counsel representation from the "get go" in filing a veteran's claim?     And, why did President Clinton wish to leave in his legacy a new act of law designed to create reform in this agency; reform that is questionable at best?

What is wrong with this picture?

Is it the "Off Limits" signs on the Capitol?
.. the Supreme Court?

Or, the character of a wheel-chaired vet getting the boot?

    In any case, it is all wrong.     Details

Do not be confused
.. by the generation of veterans
- it is a prevalent problem
for all generations of veterans!

The GOP Administration would rather forget accountability/liability in favor of not doing anything when the needs are dire and emergency in nature.

"Good boy .. good men .. good soldier .. good-bye."
The Courts have ruled that representations made by military service recruiters
is not a binding contract.     In other words,
if you received a "line of bull shit," and acted upon it,
the government holds no responsibility.
See story at "Broken Promise"

Disclaimer:   I am not an officer of a VSO.     I can not represent you in filing your disability claim.     I will do my best to assist you by (attempting to) direct you to a professional source, but matters of medical record and other legal matters are best addressed to your physician or counsel, whether that counsel is a VSO-type or lawyer.

Franco in Bangkok (Wat Arun) visiting family - 1984
.. just return from a surfin safari in Western Australia
Programmer for the Association of Surfing Professionals (ASP)
National Scholastic Surfing Assoc (NSSA)

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