Wednesday, January 31, 2007

VA Granted Stay on Blue Water Claims

On Friday, January 26th, 2007, the Department of Veterans Affairs was granted a stay it sought on January 16th for relief from the writ of mandamus issued January 9th in Ribaudo v. Nicholson. Ribaudo sought to force the VA to comply with the court decision in Haas v Nicholson overturning the VA policy to exclude Blue Water Navy vets from receiving presumptive eligibility under Agent Orange enabling legislation (despite the language in the original legislation!). Subsequent to the Haas decision, the Secretary of Veterans Affairs overstepped his legal authority and ordered his staff not to process any claims under the Haas ruling; hence the Ribaudo writ of mandamus.

Now the Court of Appeals for Veterans Claims (CAVC) has granted a stay on the processing of claims under the Haas ruling, reversing the Ribaudo ruling. In other words, Blue Water Navy claims are on hold.

The effect on this may be greater than one thinks. The stay is issued pending the outcome of an appeal filed by the Secretary of Veterans Affairs. The additional worrisome part of this is that any claims currently in the queue for processing will go on hold, with processing stopped completely. Veterans will be allowed to add to their claims, and to inquire after them, but the staff of the VA will not be taking any other action on their claims.

Meanwhile, thousands of claims are being processed that are not affected by the stay. More claims are being added that are not affected by the stay. Once the stay is lifted – presumably when the Haas decision is upheld – then processing will pick up again, and who knows how many old and new claims will have moved ahead of the Blue Water claims on the VA's queue. The court, in Haas and again in Ribaudo, ordered that Blue Water claims not be advanced but that they should be processed in the regular order.

We can only hope that at the point when Haas is upheld, the Blue Water claims will be expedited.

And Haas will be upheld. Our prediction is this: Nicholson will argue that the VA does not have enough staff to process all the Blue Water claims (a facetious and dishonest argument to begin with…) and that there is not enough money in the budget to pay the Blue Water Navy claims. We predict the court will uphold Haas as being a correct interpretation of the law, and that the VA’s claims of insufficient staff and insufficient funding does not alter the law as written, nor as interpreted by the CAVC, and therefore, the VA’s remedy is with Congress, not with the courts.

In other words, whatever court hears the VA’s appeals will throw it out, [and also lift the stay recently granted, and order the immediate processing of all claims affected by the Haas ruling].

Let’s pray the court sees through this obfuscation, and malfeasance on the part of the Secretary of Veteran’s Affairs. Lack of funding and lack of staff are not matters for the courts!

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." --President George Washington

Copyright © 2007: VNVets Blog; All Rights Reserved.

Tuesday, January 30, 2007

The Great Sin of American Government

President Abraham Lincoln, at the end of his Second Inaugural Address, eloquently declared,
With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.
This epitomizes the promise of the American people, through their government, to provide adequate care for those who serve the nation in its military, in peace and especially in war.

The record has not been a good one. Returning veterans of the Great War were promised a “bonus” benefit that would be paid to them in 1945. When the hard times of the Great Depression hit, they began pressing for an immediate payout. The government was slow to act. Eventually they formed what was called the Bonus Army, and marched on Washington. They camped on the Mall, creating a large tent city there. They were peaceful. A bill was introduced in the House to pay the “bonus” immediately. It died in the Senate. The Bonus Army began agitating more loudly, and after several incidents President Hoover ordered Army Commander General Douglas MacArthur to clear the camps. He, in turn ordered General George Patton to use the 12th US Infantry and the 3rd US Cavalry regiments to clear Washington DC of the “Bonus Army”. The troops moved on the camps, with fixed bayonets, and tear gas, and several of the veterans were killed, as were some children, victims of the tear gas. One veteran lost an ear to a cavalry saber.

The men went home without their money. They eventually got it in 1936, but that is a story for another day.

But imagine it – US Army troops assaulting a large body of veterans and their families in a camp on the Mall in Washington, DC – within sight of the United States Capitol. A shameful event in our history.

So, with the exception of the post-WW II and post Korean War eras, when millions of returning vets got educational and housing benefits, as well as medical care for service connected disabilities, the record is more than dismal, it is downright shameful.

And here is the Great Sin of the American Government. The VA has been arbitrarily denying benefits to naval veterans of Vietnam [a class of veterans called Blue Water Sailors], claiming that unless you set foot on the ground in Vietnam, you did not fall under the legislation’s umbrella for presumptive eligibility for service connected disability under the Agent Orange legislation. Nowhere in the legislation is there any reference to a requirement for setting foot on the ground. The legislation states that service in Vietnam is to include service in offshore waters. Period. There is nothing in the legislation that alters that statement in any way. The requirement that Blue Water Sailors had to have set foot on the ground inside the Republic of Vietnam is an invention of the VA’s General Counsel about ten years ago. This requirement is, essentially, what the Haas v. Nicholson ruling overturned back last summer.

Now the VA is fighting that decision. The Secretary ordered all Blue Water Navy claims sidetracked and placed on hold while they appeal.

The VA, by this most ignominious policy, has denied benefits to an entire class of veterans, numbering perhaps in the tens of thousands, perhaps more. In so doing, they have denied those veterans and their caregivers, and loved ones, the care, comfort and security due to them. In so doing they have denied the relief of suffering that such benefits would bring, and precipitated the early demise of thousands of Blue Water Sailors who died from the Agent Orange diseases, hastened because of a lack of care that was unaffordable without the disability benefits they should have received. And now their widows and survivors are left to fight for what should have been theirs by right.

And the reason for it? Money. The Secretaries of the Department of Veterans Affairs have decided that to pay the claims to the Blue Water Vietnam Veterans would bust their budget, and their staff. Instead of asking for the money in their annual budget requests, they spend money fighting the court cases, tying up the resources of the Department of Veterans Affairs, and allowing good men and women to die horrible deaths uncared for, and uncomforted by the benefits Congress wanted to give them. This discrimination began under President Clinton, and has been continued during the entire Bush administration.

This hideous and reprehensible policy is nothing short of malicious negligence, malfeasance, and discrimination. It is, in short a heinous crime against an entire class of veterans. It is the Great Sin of the American Government.

VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." -- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious." -- President George Washington

Copyright © 2007: VNVets Blog; All Rights Reserved.

Saturday, January 20, 2007

Extra Social Security Benefits for Veterans

A debt of gratitude goes to Larry Scott for his most excellent website VA Watchdog dot org for this invaluable tip (among many others). All Veterans of all ages should visit this site regularly. In the meantime, check out this benefit for Veterans who are receiving Social Security benefits, or who are, or will soon be applying for Social Security benefits.

The following is from the Social Security Administration’s website on
Special Extra Earnings for Military Service:

Special Extra Earnings for Military Service
Under certain circumstances, special extra earnings for your military service from 1940 through 2001 can be credited to your record for Social Security purposes. These extra earnings may help you qualify for Social Security or increase the amount of your Social Security benefit.

Special extra earnings are granted for periods of active duty or active duty for training. Special extra earnings are not granted for inactive duty training.

Note: Social Security cannot add these extra earnings to your record until you file for Social Security benefits.

How You Get Credit For Special Extra Earnings
The information that follows applies only to active duty military service earnings from 1940 through 2001. Here's how the special extra earnings are credited:

Service In 1978 through 2001
For every $300 in active duty basic pay, you are credited with an additional $100 in earnings up to a maximum of $1,200 a year. If you enlisted after September 7, 1980, and didn't complete at least 24 months of active duty or your full tour, you may not be able to receive the additional earnings. Check with Social Security for details.

Service In 1957 Through 1977
You are credited with $300 in additional earnings for each calendar quarter in which you received active duty basic pay.

Service In 1940 Through 1956
If you were in the military during this period, including attendance at a service academy, you did not pay Social Security taxes. However, your Social Security record may be credited with $160 a month in earnings for military service from September 16, 1940, through December 31, 1956, under the following circumstances:

  • You were honorably discharged after 90 or more days of service, or you were released because of a disability or injury received in the line of duty; or
  • You are still on active duty; or
  • You are applying for survivors benefits and the veteran died while on active duty.

You cannot receive credit for these special extra earnings if you are already receiving a federal benefit based on the same years of service. There is one exception: If you were on active duty after 1956, you can still get the special earnings for 1951 through 1956, even if you're receiving a military retirement based on service during that period.

We urge all veterans recewiving or having filed for Social Security benefits, who served any time between 1940 and 2001 to contact their local Social Security Administration and provide them with a copy of the pertinent pages from your Military Personnel Records showing the dates of all of your active duty and active duty for training. For reservists, this will require more than a DD-214. Your records should show when you went to Boot Camp if you returned to your reserve unit afterwards, awaiting orders to go to active duty. Reservists also will qualify quarters in which they did their 2 weeks active duty for training. Those who did the 28 day June-July split will qualify for two quarters for that year. Anyone mobilized or activated for TAD will earn qualifying quarters, and each quarter registers $300 more in your earned income for Social Security calculations, resulting in a higher monthly payment for Social Security Retirement or Disability.

Please do not delay this if you are already receiving or have filed for Social Security benefits. If you soon expect to file for Social Security Benefits, you should acquire a copy of your Military Personnel Records as soon as possible if you do not already have a copy. A link is in the sidebar that will take you to a National Archives website to order a copy of your records.

VNVets

“With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations.”
-- President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2007: VNVets Blog; All Rights Reserved.

Monday, January 15, 2007

Latest on Blue Water Navy & Agent Orange

Here is the latest news regarding the VA and the Haas v. Nicholson case. As you know, last summer the Court of Appeals for Veterans Claims (CAVC) ruled that the VA’s longstanding policy discriminating against “Blue Water” sailors for Agent Orange presumptive eligibility be overturned. The decision in Haas v. Nicholson means that thousands of Naval veteran’s claims already filed and rejected, appealed and rejected, or unfiled may now move ahead.

However, in early December, 2006, Secretary of Veterans Affairs Nicholson issued a decree sidetracking and stalling all claim decisions from Naval Vietnam Veterans under Agent Orange presumptive rules until the Department of Veterans Affairs can appeal the Haas v. Nicholson decision.

Almost immediately, the National Veterans Legal Services Program filed a writ of mandamus with the CAVC (Ribaudo v. Nicholson) seeking extraordinary relief from Nicholson’s delaying tactics.

The court granted the writ on January 9th. [see the decision by clicking here:
Ribaudo v Nicholson]. The Ribaudo decision states that Nicholson overstepped his authority by attempting to contravene an order of the court. In so doing, he crossed the bounds between the three branches of government [Executive, Legislative, and Judicial] as laid out in the early Supreme Court case Marbury v. Madison, to wit: "It is emphatically the province and duty of the judicial department to say what the law is."

However, in taking the Secretary to task for overstepping his authority, the CAVC also inserted language telling Nicholson what his remedy is, and how and where to file a request for a stay. They also outlined the four criteria for issuing the stay:
(1) The likelihood of success on the merits of the moving party's appeal;
(2) whether the moving party will suffer irreparable harm in the absence of a stay;
(3) the impact on the non-moving party of that stay; and
(4) the public interest.

The VA has decided to file a request for a stay of Haas, and to lift the writ of mandamus in Ribaudo.

Stay tuned folks. The request is to be filed with the same court that overturned the original VA policy against Naval vets in the Haas case. Lets take a look at the four criteria listed above.

The likelihood of success on the merits of the moving party's appeal
Since the request is to be filed in the same court (CAVC) that ruled on the Haas case, it would logically follow that the CAVC would not deem the likelihood of success for the appeal of Haas to be viable. However, courts have issued even stranger rulings than this would be. In effect, the CAVC would be admitting it will likely be reversed on Haas.

whether the moving party will suffer irreparable harm in the absence of a stay
This is the criteria the VA will attack most heavily. Their appeal of Haas, and the subsequent illegal memorandum instructing the Department to sidetrack and suspend decisions on Naval veterans’ claims under the provisions of the Agent Orange legislation is based almost solely on this criteria. Essentially, Nicholson claims that processing the number of claims—he says as many as 500,000—would stress the VA’s staff beyond the breaking point, essentially destroying their ability to handle any claims at all. Further, Nicholson claims the amount of money required to begin paying Agent Orange benefits to Naval veterans exceeds his budgets by “billions” of dollars. In short, he has neither the staff to process the claims, nor the money to pay them. Is this irreparable harm? We think not. Nicholson pointedly ignores another remedy that would solve everything. He could go to Congress and request emergency funding to cover the cost of outsourcing the claims process. It is a one time deal in terms of no more Naval veterans will be created…in fact, the numbers will diminish, as they have been for decades due to the deaths of many Naval veterans who have waited in vain for their government to fulfill its obligation to all those who served. Once the claims are processed and those requiring adjudication are complete, the issue becomes one of maintenance, and that is far easier to handle as part of the regular Congressional annual budget process.

Nicholson would also be required to ask for a second emergency funding bill to cover the cost of paying the claims. Again, once the initial claims are processed, the matter becomes part of the annual budgetary process. At that point, the VA, and Congress will have a much better idea how much this will cost them annually.

the impact on the non-moving party of that stay; and the public interest
The Haas decision, if upheld, will result in the payout of millions, perhaps billions of dollars in claims to Naval veterans, and the cost of processing and adjudicating those claims. Such a hit to the annual national budget would have an effect that might require some sort of tax increase.

Haas will also result in the financial relief of tens of thousands of Naval veterans who have been suffering from Agent Orange exposure for the past several decades, and have been unable to gain any relief from the government. Such financial relief can in many cases result in medical relief as well.

There is an excellent website from which you all can keep up to date on the latest machinations of the VA’s discrimination against the Naval veterans of the Vietnam War. It is called Blue Water Navy. It is run by two very remarkable ladies, Susan Belanger, and Taura King, who have been in this fight for years and deserve a great deal of respect, honor and gratitude for their tireless efforts to assist Blue Water sailors in their fight for benefits that are due them. As they say on their main page:

“Approximately 19 million gallons of Agent Orange sprayed in Vietnam between 1963 and 1970 Where do you suppose they went?”

Please visit their website often. Click here:
Blue Water Navy

When I first got involved in this fight in 2003, Taura and Susan were of great assistance to me in helping me with my claim, and with understanding the system. We all did research together, but those two were the ones who came up with the evidence floating around that proves exposure to Agent Orange through ship’s desalinization systems. My hat is off to them, and always will be.

Had the VA, and the Congress not conspired to discriminate against all those who served in the offshore waters of Vietnam during the war, tens of thousands, of those veterans might possibly still be alive today, having received benefits and treatment for the vicious diseases inflicted on those subject to Agent Orange. Others would have enjoyed a better lifestyle, not being forced, for example, to decide between paying for the heat in the winter, or paying for insulin, or chemotherapy drugs. Others who were diagnosed with Type II Diabetes may not have suffered from their secondary diseases of the heart, kidneys, teeth, legs and feet. There is much more.

The decision taken over a decade ago to exclude those who served in the “Blue Water” borders on criminal negligence. It could be that is what Nicholson fears most, the lawsuits that will inevitably pop up from vets, dependents, and survivors.

As far as this sailor is concerned, the VA has never really been there for us. It is time they stood up to their responsibility under the law, and stop killing innocent victims simply because they think they can’t afford to do what the law intended. There is something very wrong with that kind of twisted logic.

What can you do?
Visit the Blue Water Navy website often. Contribute if you can, in time or money, or both, and talent if you have it. Contact your Congressional Representative and Senator. Tell them to support emergency funding for the VA to fund the claims of the Naval vets so long overdue.

File your initial claim if you have not. File to reopen if you have. File an appeal if you have been denied.

If you need further motivation, go to the VA’s website and search for the appeal decisions of Navy vets denied for Agent Orange benefits because of their discriminatory policy. It is gut-wrenching, heart rending reading. But even that cannot match the dozens of emails I received from daughters, sons, and wives of Naval veterans who were forced to watch their loved ones die because the VA would not help. Personally, after a while, I could not go on, and I dropped away from Taura and Susan. I regret that, but the emotional toll was too much. I do not know how they do it. But they have my undying respect for what they have done, and what they do.

VNVets
Copyright © 2007, The VNVets Blog. All Rights Reserved.