Hear’s an excellent article sent in by member John of the Syrup of the Month Club up in Vermont. The article was written by Michael Allen under the auspices of the University of Cincinnati Law Review.
What is important about this is the implications of due process brought up in the Cushman decision. It’s droll reading for all but the legally adroit. However it does come across without too much trouble for those of us who want to explore the basics of due process and understand how it will soon affect VA law.
Always remember that law is in a constant state of flux. It matures and metamorphoses over time into something more and more nuanced to deal with each new permutation. Veterans Law is unique and there will always be some situation that demands a new viewing in a different light to accommodate these circumstances.
I think you’ll take a new understanding of law away from this as it’s closer to Dick and Jane speak that it is to Lawyerspeak.
LawBob Squarepants had this to add:
Veterans are 3rd class citizens in the eyes of the law. Veterans fighting for VA benefits do not receive the due process that a VA contractor receives in a fee dispute. They do not receive the due process an illegal alien receives. Due process lite, or sham due process is what a veteran receives. All hat and no cowboy describes VA due process.
I agree… It’s like being a private E-nothing in boot camp all over again. Just another boot and a warm body with a ssn number. I still Bellevue Cushman is our only hope for the future. Getting treated like shit/3rd class status is not new to us old farts waiting in line. Some of will die waiting just like the AO veterans did. If we remove the democrat/liberal/socialist/political correct deadbeats out of Washington we could have a fighting chance for change. For now we have 4 more years of an abomination that sits where he should not. In spite of it all God is still in control…
The sorry state of affairs is because Veterans don’t know how their congressman/Senator votes on key veteran issues. Veterans vote party or other issues. The fact is (Anybody can look up their voting records), Democrats over past doz years have supported veteran issues, far better, than the Republicans and way more than Tea party. If Veterans would vote based on how congress votes on key veteran issues…Pols would start listening. Go to DAV or capwiz and find out about veteran key votes
Yes sir you would be correct regarding the democrats voting re: veteran issues. HOWEVER which party politician will run on or DEMAND a total and complete restructure of the vA and how to do it? Politicians are selfish and hedonistic when running for office. They choose to exploit their opponents weaknesses or voting records. Everyone seems to know what’s wrong with the vA. Who will go against the grain and demand a complete house cleaning with new sop?
Alan Cranston was a Ca politician who is now deceased. As I read this writing I see how the vA evolved into a monarchy without any checks and balances. The thing I liked is the comment “the law cannot grow” as it does in other venues. The other thing lightly mentioned is the backlog and wasted time it takes to go up the chain of command. Time is not of the essence in vA court system. Time is used against the veteran hoping his claim will die with him. This is good fodder to argue over a beer and a gripe but we cannot apply any law unless we have a bar card. A good read and not boring…
The expression, “the law cannot grow” caught my attention too.
From Ralph Waldo Emerson’s journals: “The moment a man says “give up your rights; here is money,” there is tyranny.
In the past, veterans trusted their elected officials, who convinced them that giving up their due process rights was a good thing, but in 90% of cases, monetary benefits due were not forthcoming as promised.
The old VA system, built on sand, seems near collapse. Images of Winston-Salem claims folders. Lying and or incompetent doctors, slanted studies. Homeless veterans. Incarcerated veterans. Veterans dying before their claims are processed. Hunger. Stress. Foreclosures. Terrible physical and emotional injuries.
I do think that if veterans could employ lawyers to confront their VA adversaries,
it could be set right. Even if a veteran doesn’t think about the concept of “property interest” in a claim, his attorney would.
Thanks to John for contributing this intelligent article. The author leads one through the concepts painlessly.
Re: The discussion on interrogatories: Wouldn’t it be great if veterans could challenge the fake or dated medical opinions of VA doctors post-Cushman? Two quotes from the end pages:
“The process by which medical opinions are obtained and evaluated provides fertile ground for arguments that could be framed under the rubric of due process. I consider only one to make the point about Cushman‘s potential systemic implications. The issue is the one the
Federal Circuit faced, but did not resolve, in Gambill: what rights does a veteran have under the Constitution to ―confront‖ a doctor on whose examination the Board or RO relies?”
“…However, unlike Judge Bryson, Judge Moore argued that the system has become more
adversarial than in the past. Importantly, she noted that holding that due process requires a means to test medical opinions would not make the system adversarial precisely because ―by the time a veteran has the need to question a doctor, that doctor has already provided an opinion
adverse to the veteran‘s interests–the system has already become adversarial.”
Judge Moore sounds like a good judge.
Well thought out, Kiedove. Very well presented. A Vet does have an opportunity to object on an IMO/IME within sixty days of its issuance. Try finding that out from the AMC before the two months have come and gone. You usually read about it several years later after the fact when you belatedly receive your BVA cheatsheet. Due process is a slippery concept that VA has artfully dodged much the same way they avoided publicity up until their “splendid isolation” evaporated under the glare of Sen. Alan Cranston’s bright lights (VJRA). As I love to point out, VA law is far from being done yet. Look at how much has changed since 1989. Due process will simply begin a new chapter in an old book-much to the dismay of the VA.