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Thursday, July 24, 2008

On Extraordinary Awards, Or, Wounded Troops, Wounded Again

We come together today to discuss one of the more disturbing things that the Administration has done recently…and for a President who claims he “supports the troops”, this story is even more disturbing than usual.

It has his fingerprints all over it, however: laws ignored, rules rendered irrelevant, secrets kept from those who need to know—and ultimately, the cost of his bad decisions are being borne by those who have already paid about a high a price as could be possible in the service of this Nation.

Follow along, my friends, and I will treat you to a magic trick: one in which “Support The Wounded Troops” magically becomes “Screw The Wounded Troops” right before your very eyes…and while you probably won’t feel like applauding at the end, it’s nonetheless a trick you don’t want to miss.

We hear, from time to time, of people who receive very large cash awards for injuries—and while the amounts of money may seem exceptional, we also realize that these are people who will have exceptional burdens in the future.

These burdens are most exceptional when they are borne by soldiers in the field who are wounded in the service of the United States, and the Department of Veterans Affairs (the DVA) will, from time to time, provide “extraordinary awards” to wounded servicemembers. These awards either exceed $250,000 or are retroactive eight years or more…or both.

Until recently, DVA Regional Offices had the authority to issue such awards, and they did so with some regularity. These cases might arise, of course, because the severity of an injury causes the permanent inability of someone to ever return to gainful employment…or they might arise because newly accepted information has made a veteran (or a class of veterans) eligible for retroactive benefits that the DVA chose not to award in the past. The Agent Orange veterans fall into such a category.

The authority for the DVA’s rules and regulations is Title 38 of the US Code; the controlling rules and regulations themselves are found in Chapter 38 of the Code of Federal Regulations. It’s all well understood law with a clear application, decision, and appeals process.

It is unusual law, as well, in that the DVA has a “duty to assist” those who might have a claim in their efforts to convince the DVA to give them the award they seek. The claims system is supposed to be nonadversarial; however, the American Bar Association feels that the system does not fit that description today.

In what must have been an effort to prove the ABA correct, the DVA’s Compensation and Pension Service sent out a “fast letter” in August of 2007 requiring the Regional Offices to submit, for their approval, all “extraordinary awards”. The letter outlined a new approach for this type of review:

…Do not offer these rating decisions to any veteran’s representative for review until the C&P Service makes a final determination regarding the propriety of the decision…

… If the C&P Service concurs with the VSC [Veterans Service Center, meaning “the local office”] decision, the veteran’s representative (if applicable) will then be allowed to review the decision prior to its promulgation…

…If the C&P Service determines the decision is improper, it will provide specific corrective action.

--from the “fast letter” of August 27, 2007 (emphasis from the original)

In a letter that appears to have produced by some sort of stenographically inclined circus clown (I’m not kidding…check the link) the DVA acknowledges to Congressman Mike Thompson (CA-1) that the new reviews have caused 91 of 494 cases to be rejected for reasons that are unknown to the claimants…reviews that were conducted by the C&P Service without any opportunity for the claimants to provide input or participate in the process.

The reason we know about all this is because one veteran, Steven G. Stratford, has begun to push back—and also because of Larry Scott’s VA Watchdog dot Org website, which has been following this story for nearly a year now.

Stratford has presented to the Court of Appeals for Veterans Claims a request for a Writ of Mandamus (mandamus is found today in the word “mandate”…and a Writ of Mandamus mandates a governmental agency to act in a certain manner) that would:

…order Respondents [the DVA] to immediately rescind the unconstitutional “extraordinary award” scheme and fully restore all illegally confiscated entitlements and awards.

Unconstitutional, did you say?

As it turns out, yes.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

--The Fifth Amendment to the US Constitution

The “due process” guaranteed by the Fifth Amendment entitles the veteran to a fair appeals process, not a “double secret probation” kind of process; and the benefits for which a veteran is qualified are a property right guaranteed by the “takings clause” of the Fifth Amendment.

The story of Steven Stratford and his battle with the DVA is amazing in itself.

Stratford was a Vietnam veteran of the Air Force, and he has been at this since 1987, when he filed a claim for post-traumatic stress disorder (PTSD) which was denied twice, in 1997 and 2003. On both occasions the Court of Appeals for Veterans Claims ordered the DVA to rethink the decision…which they did, the San Diego VA Regional Office agreeing in May of 2007 that Stafford was entitled to an award retroactive to 1987.

The very next month the C&P Service began creating a new review procedure, which was announced in the “fast letter” we discussed above. No “rulemaking” was associated with the new review procedure—and no claimant was informed as to the C&P Service’s new plans.

Just before Halloween of 2007 a new decision was issued again denying the claim—it was decided the PTSD was not service-related after all, despite the DVA’s own reports earlier in the year that it was. The two reports that sided with Stratford were noticeably absent from the discussion, it is reported.

To this day the DVA refuses to allow Stratford access to his own files…and Statford’s attorney tells the Court in the application for the Writ that the DVA remains unable to provide any statutory or regulatory authority authorizing the new review process.

Stafford’s not the only one in this fight, either. Veterans For Common Sense and Veterans United For Truth are also seeking to “enjoin” the DVA (through an injunction) to follow their own Mental Health Strategic Plan, to provide immediate care for veterans who present at VA facilities with “suicidal intentions”, and, if the Order as proposed were to be adopted:

“…Defendants are hereby enjoined from applying or taking any administrative action to enforce the provisions of the Extraordinary Awards Procedure…

… Within 90 days of this Order, Defendants shall establish a comprehensive remedial plan to develop and implement procedures to satisfy the requirements of the Due Process Clause, including a right to retain paid counsel, steps to insure the availability of pre-decisonal hearings at the Regional Office adjudication level, and the readjudication of all SCDDC claims where Regional Office grant amounts or retroactive awards were reduced as a result of the Extraordinary Awards Procedure…”

And for the moment, that’s all we know, as both cases are before the courts awaiting decisions.

So that’s the story: we send people overseas to go into harm’s way on our behalf, they suffer injuries and we deny them compensation for years…sometimes even decades…and when they finally do prevail, the DVA introduces a secret new “star chamber” to keep the deck stacked against the veterans.

Unfortunately for the DVA, they may have returned injured—but they also returned as fighters…and if the courts grant the requests, we’ll see a major victory for veterans…and if that happens, maybe this Administration actually will support the troops for once.

Now that’s a magic trick I would applaud.


Paul Sullivan said...

Thank you for your post about how the VA steals benefits from veterans. Please note that in June 2008 the Federal Circuit Court ruled in our case, Veterans for Common Sense and Veterans United for Truth v. James Peake, Secretary of Veterans Affairs. To read the decision, please go to this link, and you will find that the Court found that the veterans suffered injuries "in fact" caused by VA, the Court ruled it lacked jurisdiction. Thank you, Paul Sullivan, Executive Director, Veterans for Common Sense,

fake consultant said...

i'm very glad to have heard from you...and i will read the decision and provide an update over the next 24 hours.

Robert said...

According to a source in the C&P Office in D.C., Fast
Letter 7-19, aka "Extraordinary Award Procedure" has
been canceled.b

fake consultant said...

that's excellent news...and we can only hope there's not something equally sneaky on the horizon.