April Fool’s day at the Court?
Before Hagel, Moorman and Schoelen, a certain appellant named William H. Heino, Sr. pleaded an extraordinary case pro se. It was decided April 11th, 2011, just ten days after my favorite day of the year. It might have been more appropriate to issue it on the first as it is the most bizarre I have read in years. Not for what the august judges decided, but for the sheer madness that was decided by a panel of judges rather than a single judge.
When a novel situation arises in VA law and a Vet appeals up to the Court, a panel is convened. But a run of the mill decision is usually handled by a single judge. Judges are busy people. They have to listen a lot, read a lot and occasionally dictate a long, reasoned decision for their secretary to type up. They are so busy handing out justice to Veterans that only very important law changing justice demands a panel decision.
Mr. Heino contends he has to cough up $7.00 every month to get his high blood pressure medication. To add insult to injury, they only manufacture the tablets in 25 mg. dosage and Mr. Heino’s prescribed dose is 12.5 mg./day. This necessitates Mr. Heino take one of those pill cutter doomoflotchies and whack all his tablets in half. Mr. Heino contends he should get a break on his $7.00 a month co-pay because he has to cut the pills in half. He further argues that he should perhaps get 30 25 mg. tablets a month if they insist on charging this exorbitant amount for 15 tablets. Finally Mr. Heino argues that the $7.00 copay exceeds the actual cost of the prescription and is therefore against the law. Not that this has any bearing on the subject, but Mr. Heino is not service-connected for anything. He merely uses the VA as his pharmacy, and, for all we know, his medical plan. He is entitled to do that. He is also entitled to clog up the Court’s busy schedule to appeal for justice.
Justice in the VA system is slow but inexorable. There are many cases that require extensive development and time consuming legal research to make sure justice is dispensed correctly. With some of these decisions, time is of the essence for medical or financial reasons. Therefore I find it difficult to believe the Court would accord a decision of this minor magnitude a 60-piece orchestra and a top slot on the New York Times Bestseller list. It will consume two sizable pulp trees for publishing the decision and the reams of copies that were preliminary drafts. Mr. Heino will be directed to pay any withheld monies to the VA for past prescriptions. The VA Police at his VAMC will be issued a picture of Mr. Heino as a potential “probable mental deficiency”/ agitator. All this for about $42.00 a year? Hello? McFly? What is going on?
I searched but there is simply no intelligent life in this thing. Judge Hagel went so far as to actually file a separate opinion concurring in part and dissenting in part. Please sir. May I have more pulp for paper?
http://www.uscourts.cavc.gov/documents/Heino-09-112-published-opinion-April-11.pdf
17 pages of decision. Did you know that Gilbert v. Derwinski (1990) which was positively earthshaking for Veterans jurisprudence, took only 19 and addressed multiple, seminal issues that will affect Veterans for many years to come, if not forever? We here believe this is a collective judicial attempt at tardy humor around April Fools day. We certainly needed something to raise our spirits and this is a good beginning.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 
I’m back. Kiedove brings up a good point. Who speaks for those veterans who are not able, those wishing they have the social skills or guts to even help themselves or another veteran by complaining about what they see as wrong? Who? Yes, I made a federal case out of my one prescription. I lost my case with the Veterans Board of Appeals. Sitting home one evening, I received a call from a Washington attorney who wanted to take this case… pro bono. An attorney from one of the biggest law firms in the country. They too, wanted to do what they can for veterans. Anyway, as you know we lost, 2 to 1 Incidentally, as I have read, that when the VA raised prescription costs previously many veterans drop out. I guess getting a script and going to Wallmart or Kmart. Prior to my case the VA was preparing another increase prescription costs and haven’t done so as of yet.
But, getting back to disabled veterans and state court judges, the following is an example of what’s happening not just in Texas, but across the country.
State court violation Separation of Powers DISABLED VETERANS
Despite the ruling by the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, in refusing to exceed their jurisdiction, Texas courts have no problem.
A case for “separation of powers”.
The Texas Supreme Court, in a habeas corpus proceeding, (615 S.W.2d 192 (1981) Ex Parte Billy Bruce Burson), had recognized that a disabled veteran’s VA disability compensation is by federal law exempt. “Burson argues… Veterans Administration disability benefits because the supremacy clause of the United States Constitution preempts this area from the purview of state courts. We agree.”
Richard v Richard Court of Appeals TX 1983. In the case of Ex parte Johnson, 591 S.W.2d 453, 456,“… the Texas Supreme Court held that an award of the husband’s Veterans Administration disability benefits to the wife upon divorce, conflicts with the clear intent of Congress that these benefits be solely for the use of the disabled veteran.”
And as so, legislated and made part Texas law.
Sec. 8.055. AMOUNT OF MAINTENANCE.
(a-1) For purposes of this chapter, gross income:
(1) includes:
(E) all other income actually being received, including ……
(2) does not include:
(F) Department of Veterans Affairs service-connected disability compensation;
However, the Texas legislature in 2013 amended the law.
Section 154.062(b), Family Code
(b) Resources include:
(5) all other income actually being received, including… United States Department of Veterans Affairs disability benefits ….
THE TEXAS CONSTITUTION
ARTICLE 3.
LEGISLATIVE DEPARTMENT
Sec. 30. LAWS PASSED BY BILL; AMENDMENTS CHANGING PURPOSE. “No law shall be passed, except by bill, and no bill shall be so amended in its passage through either House, as to change its original purpose.”
Neither the Supremacy clause of the United States, nor an edict handed down by the Supreme Court of Texas, or the Texas Constitution, relating to exempt status of VA disability compensation would stop the Texas legislature from altering and amending the original purpose of Sec 8.055.
The issue is VA medical disability compensation, the property rights of the disabled veteran, in what VA medical doctors, medical professionals have determined a disabled veterans injuries should be compensated for. If, and when the question is a disabled veteran’s VA disability compensation as alimony/support, now that alimony reform has surfaced in many state legislatures, it’s time that disabled veterans voices be heard in a matter that has long concerned them. State court judges continue to ignore the disabled veteran, and the law, 38 USC 5301, 10 USC 1408. “Separation of powers” doctrine is mandated to end this attempt by the state court to manipulate, overlook, and circumvent the law and their disregard of disabled veterans.
Disabled veteran’s, and the “separation of powers” doctrine, both overlooked, ignored, for years, by Texas and most state court judges, acting like doctors, holding themselves as qualified, as a provider of health care, policy making outside their jurisdiction. Substituting their judgment for the judgment of VA doctors and medical professionals, awarding as alimony, a disabled veteran’s earned VA disability compensation. Acting outside of constitutional boundaries of long held established VA medical protocols, in considering and re-evaluating a disabled veteran’s disability compensation in order to further degrade property rights of the disabled veteran, runs afoul of the “separation of powers” doctrine. Injurious, and an abuse of power to allow what is happening, was this the intent of Congress?
Realizing laws protecting VA disability compensation as exempt, the courts, therefore are unable, in any legal standing, to secure garnishment of veteran’s disability compensation. The court not satisfied, in a final move, will now consider, from any source, an equitable calculation of veteran’s resources, to include…. the very same disability compensation the court has acknowledged as exempt in determining alimony/support. Suggesting the use of a veteran’s disability compensation as alimony, or go to jail! As has happened. The mere mention, innuendo, or thought of VA disability compensation to satisfy indemnity obligations as a equitable consideration in any form, thought or calculation of VA disability compensation, suggests interference in matters, identified as exempt, are beyond the courts jurisdiction, under “separation of powers” doctrine. The court has the responsibility and the obligation to uphold the State Constitution’s “separation of powers” doctrine.
THE TEXAS CONSTITUTION
ARTICLE 2. THE POWERS OF GOVERNMENT
Sec. 1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS.
“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted”
Forgotten are the rights of the disabled veterans. It is clear the court’s have no legal right to, exercise, determine, consider in any equitable calculation thereof, or divide federal VA disability benefits, in order to further enhance martial property. The improper, intrusive practice by state court judges in administration and governing over VA medical rehabilitative disability compensation. The separation of powers doctrine imposes the assumption that the state court, in attacking the disabled veterans legal right to claim as exempt, his or her VA disability compensation, requires subject matter jurisdiction. The court has the sworn duty and responsibility to enforce federal law. The court’s continued attempt to override VA administered rehabilitative services, of disability compensation is not within the courts purview, legal right or jurisdiction to invade.
42 U.S. Code § 1983 – Civil action for deprivation of rights
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or ..causes to be subjected, any citizen of the United States …within the jurisdiction thereof to the deprivation of any rights, privileges,…secured by the Constitution and laws, shall be liable to the party injured in an action at law,.. or other proper proceeding for redress,..”
The United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, ruled, “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,..” As well, Texas is not in any legal position to do so. Bush v. Schiavo, 885 So. 2d 321, (Fla. 2004). Despite the law, it continues.
“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, with due process of law,.. ”
Which leaves the question, ANY alimony reform for disabled veterans when is that going to happen? Support for disabled veterans is all that is needed.
William Heino Sr. Korean era veteran, I am neither in any divorce action nor am I disabled.
I’m glad I had the opportunity to happen upon your website. I am that certain appellant named William H. Heino, Sr., As Kiedov indicates he realizes there is a difference in prescription costs, especially those veterans with multiple prescriptions which means a lot in copay costs. You probably have never had the opportunity to sit in the lobby of a VA hospital and watched those that pass by, a lot of veterans that can use every bit of help in copay costs. If you did, you were not paying attention or don’t care.
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You must remember the VA encourages all veterans to sign up for VA health care. I did, as many thousands of veterans decided to do. To clarify the costs involved in the event you have not researched VA prescription cost compared to outside costs. Perhaps you like to get ripped off. But let me explain the difference.
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A 3 month VA supply of 45 whole pills split comes to 90 split pills. Copay cost $24.
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For $10 from Wal-Mart 90 whole pills split, comes to 180 split pills for a 6 month supply.
Whereas, the VA copay cost for the same 90 pills is $48.
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$10 compared to $48 which will you pay? You are suggesting this difference in cost doesn’t mean a lot to veterans? Well, that’s your opinion.
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I’m back defending disabled veterans on another issue should you want to criticize.
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States such as Massachusetts, West Virginia, California legislators, as well as other states, due to the changing realities of family life, either proposed or passed that ‘permanent current alimony’ obligations be eliminated in alimony reform legislation.
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Looking at these many State legislative proposals, and those ratified into law, one can only wonder, with all this legislative thinking going on, what happened? The subject of the disabled veteran’s VA disability compensation used as alimony, when is this alimony reform suppose to happen? This is something disabled veterans’ have tried to do for a very, very long time.
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In the past two years disabled Oregon veteran Peter Barclay went to both the Oregon Supreme Court and the United States Supreme Court. Failing both, asking, “..whether states violate federal law when they allow divorce courts to count a veteran’s disability compensation in calculating spousal support?” As you will discover, as you read on, the law is quite clear as to a veteran’s rights and a state court judge’s improper judicial authority in denying protections that are guaranteed.
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This veteran had failed in his quest for something that Oregon legislators are now proposing, permanent alimony reform! However, any proposed legislation is discriminatory which completely ignores ALIMONY REFORM for disabled veterans. Unbelievably, this is exactly what disabled veteran Peter Barclay was seeking from the Oregon Supreme Court, as well as United States Supreme Court refusing to acknowledge his petition.
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It is time now to propose similar alimony reform legislation for disabled veterans. Disabled veteran’s have the exact same issue. However, correcting improper legal rulings imposed on disabled veteran‘s is the issue, as much as it is reform. Why now? For the reasons that follow, according to law.
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INFORMATIONAL COMMENT STATE COURT JUDGES
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38 USC 5301 Nonassignability and exempt status of benefits. “Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law,.. a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
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“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
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“Due process”. How is it, that state court judges can arbitrarily and capriciously award as alimony, with the mere wave of a hand, waive away a portion of a veteran’s VA disability rated compensation? Moneys in the form of disability compensation, the disability rights of a veteran, whose disability rating that maybe determined and factored in as critical? Judgment as if all disabilities are exactly the same. State court judges, are in reality, playing doctor, without medical license or knowledge .. a practice forbidden, providing penalties by law , and border on medical negligence. All without any input, or approval from the Veterans Administration. Overstepping those whose authority it belongs, the dedicated VA medical professionals, in the practice of medicine, re-evaluation, and rehabilitation of the veteran. While at the same time violating federal law, 38 USC 5301, 42 USC 1408, and the 14th Amendment.
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Ninth Circuit Says Congress, Not Courts, Have Say Over VA Health Care
VETERANS FOR COMMON SENSE v. SHINSEKI December 13, 2011
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Continually, State court judges disregard the law, as reduction in disability compensation cannot be “reduced unless an improvement in the veteran’s disability is shown to have occurred.” USC 1155 Authority for schedule for rating disabilities.
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How are judges allowed the discretion to award as alimony disability compensation based on ‘statutory’ awards? Which are not predicated directly on the average reduction in earning capacity, but primarily upon consideration of noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability. The purpose of the statutory award for loss or loss of use of a creative organ is to account for psychological factors.
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“Clear and substantial” major damage to federal interests occurs when state court judges make lasting decisions, that seriously impact disabled veterans’ rated compensation and complicate Veterans Administration goals, and responsibilities. Upsetting, by overruling VA medical compensation decisions, which involve many hours of work that VA medical professionals have invested in the medical care, control, follow-up, and rehabilitation of disabled veterans. All this happens with VA complicity, when a state court, arbitrarily is allowed to take away a veterans VA disability compensation in third party alimony awards in violation of….. 38 USC 5301. 42 USC § 407 – Assignment of benefits, carries similar language.
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Where is it written, the VA authority, when a state judge can arbitrarily overrule the VA, the VA medical doctors and other medical professionals’ that determine a veterans’ medical rating compensation? His future now without the compensation that was by law assured? Tax payer monies mandated by Congress purposely, as veterans service compensation for injuries received, life altering as they are, now being diverted purposely by state courts to healthy third parties in many cases, in a determined and engaging violation of the law. To allow what has been happening, was it the intent of Congress that state court judges substitute their judgment for the judgment of VA doctors and medical professionals? I don’t think so!
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Where is it written? Will there be the same eagerness of legislators to extend this proposal and eliminate veterans disability compensation from alimony? The laws are very clear, what is needed is reform in the court system thinking that due process, and property rights do not apply to disabled veterans. Legislators, do the right thing now and fight for your disabled veterans. Because, it is the law!
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The Veteran is nitpicking but that’s okay with me because for all I know, if he made a claim for service-connection, which was unjustly denied like millions of others, had it been approved, he would have paid NO co-pay. For veterans who lost their claims, and didn’t have the heart to fight on, and who need multiple medications, this adds up. Walmart charges less for many prescriptions and they also have administrative costs.
The co-pay went from $2 to $7-8 because Congress kept it there. I wonder what kind of co-pay congressman pay? I recall that taxpayers pay their barbers so they can get free haircuts. Gotta look good for the cameras…