CAVC–Freeman v. Shinseki 2011–Assigning Fiduciaries


Approximately two and a half years ago, we started examining CAVC cases to see what we could potentially gain from them to help Vets. I must admit we have managed to extract some important information from them. I suspect Groves v. Peake will stand for some time as the holy grail of decisions where hepatitis claims are concerned. 

     We have recently discovered that other sites who advocate for Veterans have taken up this practice. While imitation is considered the most sincere form of flattery, we don’t see it that way. Any medium that furthers the Veteran’s ability to obtain information pertinent to winning his claim is okay by us. We certainly don’t even care if they abscond with it chapter and verse. The important thing to keep in mind is the Vet, not the source or interpretation of the newest ways of succeeding. 

     With that said, let us examine the newest offering from the Court. William E. Freeman, most likely through the able legal representation of Doug Rosinski, petitioned for a Writ of Mandamus to compel a recalcitrant Secretary to allow him to appeal VASEC’s choice of his assigned fiduciary. By way of explanation, Mr. Freeman had been adjudicated non compos mentis for mental reasons. He desired that his sister be his guardian and control his finances. Makes sense to me given VA’s execrable record of fiduciary fraud. The Secretary ignored his wishes and appointed a VA-chosen fiduciary who nicks him for about 3 percent of his monthly stipend. While this only amounts to slightly less than one hundred dollars a month,  it adds up, and more importantly, it deprives Mr. Freeman of choosing a close relative who would serve for free. 

Gen. “Chia” Shinseki

The Secretary took the position that it was his privilege and his alone, to choose who would be the fiduciary. He categorically denied any efforts to disagree with this decision and went so far as to refuse to entertain Mr. Freeman’s NOD filed to contest the choice. As Mr. Freeman had no other venue to appeal to, he approached the Court and petitioned for a Writ to compel the Secretary to allow him to appeal through normal channels. And that is how we find ourselves here reading about it. 

     Some of the Veterans Advocacy groups hold that this order compelling the Secretary to issue a Statement of the Case to Mr. Freeman strips him of a power granted by law. Nothing could be further from the truth. The Court has done nothing more than interpret the law for the statute-challenged Secretary and instructed him to issue said SOC –and to be quick about it. The Secretary has many enumerated powers granted him by Congress in the VJRA of 1989. The Court, created by that same Act, also was granted certain powers that permit it to look over his shoulder and occasionally correct his excesses. This is a prime example. 

     The Court has been exercising its jurisdiction very subtly for the last 22 years and has tried to operate out of the limelight. Occasionally the Secretary compels them to jerk his chain and make him heel when he exceeds his mandate. That is all that has transpired here. Nothing earthshaking, judicially speaking, came to pass last week as some would have you believe.  The decision in Harvey several months ago was far more severe and actually fined the Secretary for his intransigence. 

     Fortunately for Vets, we do have a forum where our best interests are reviewed for legal sufficiency. The Court is nothing, if not thorough, in vociferously defending our rights from the excesses and mission creep of the very one legally appointed to defend our rights. One cannot help but observe that it is incongruous we require an overseer to monitor those employed to grant us those very benefits we are guaranteed by law. The obverse would be true in most cases.  Perhaps the    Anti-Veterans Administration would be more apropos considering past history and our continuing battles for justice.

     Here is the Order directing the Secretary to produce a SOC for Mr. Freeman dee-dee mao. Dee-dee mao is Vietnamese for “be quick about it”.

http://www.uscourts.cavc.gov/documents/Freeman_10-1462_published_opinion_4-26-2011.pdf

 My money is on the sister for Mr. Freeman’s new fiduciary. If not, it will probably resurface soon in the Court’s calendar.

 

About asknod

VA claims blogger
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