FED UP – Court Holds VA Secretary In Contempt, Sanctioned

18
2268
Advertisement
Get the Voc Rehab Guide

Veterans Court

Benjamin KrauseIn an answer to my pre-Thanksgiving prayers, I received news that the US Court of Appeals for Veterans Claims held VA Secretary in contempt and leveled sanctions for ignoring a Court Order through gross negligence. The sanction in this instance is a fine to pay for attorney fees.

Secretary McDonald will obviously not pay the funds out of his own pocket, but the US Court of Appeals for Veterans Claims leveled sanctions against the Secretary in an official capacity for the failure of his underlings to process a veteran’s remand in a timely manner after losing numerous letters from the veteran’s attorney.

But shouldn’t it be more than a fine for mere attorney’s fees? After all, as you read what happened, this veteran was likely harmed by the misdeeds of VA employees when they unjustifiably cut his PTSD from 100% to zero only to reinstate it two years later claiming the cut was an error. Imagine wrongly being deprived of $60,000 for two years as a disabled veteran. That is an injustice of enormous proportions.

[Download Gene Groves v. Robert McDonald opinion here]

Here is the gist of the case from the Court’s introduction published on Tuesday. Be sure to read the full opinion by downloading it, because the decision may help with your own claim and be an indication that the Court is done with VA games:

In the context of the instant January 24, 2014, petition for extraordinary relief in the nature of a writ of mandamus, the question before the Court concerns the petitioner’s request for sanctions based on the Secretary’s failure to correct an error of the Board of Veterans’ Appeals (Board) in characterizing this Court’s March 2012 remand decision as an affirmance in its database, despite numerous letters from the petitioner raising the error. This ultimately resulted in the Secretary’s failure to expeditiously handle the Court’s remand order as required by 38 U.S.C. §§ 5109B and 7112. During the pendency of the instant petition, the other relief requested by the petitioner–compliance with this Court’s March 2012 remand decision concerning VA’s reduction of his disability rating for post-traumatic stress disorder (PTSD) from 100% to noncompensable– became moot when, on May 6, 2014, the Board issued a decision that determined that the reduction was improper and ordered restoration of the 100% rating for PTSD, effective May 1, 1997 (Secretary’s May 7, 2014, Notice). See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting the case-or-controversy constraints imposed by Article III of the Constitution and dismissing a portion of a petition seeking mandamus relief because the controversy surrounding the petition was moot).

The Court holds that, under the unique and particularized circumstances of this case, the Secretary’s failure to provide a minimum amount of scrutiny to any one of multiple letters from Mr. Groves following this Court’s March 2012 remand order showed gross negligence and lack of reasonable diligence in handling this Court’s March 2012 remand order. Had a reasonable inquiry been made by VA during the approximate two-year period, the Board’s mischaracterization of this Court’s March 2012 order as an affirmance would have been corrected. Because the standard for holding a party in civil contempt established by this Court has been met, the Court will hold the Secretary in civil contempt. See Harvey v. Shinseki, 24 Vet.App. 284, 287 (2011); Pousson v. Shinseki, 22 Vet.App. 432, 437 (2009). To ensure the Secretary’s diligent compliance with future remands from this Court, the Court will order the Secretary to pay sanctions in the form of reasonable expenses associated with the litigation of this matter.

Stay informed on VA news, scandals and benefits. Get our daily newsletter via email.

17343

DisabledVeterans.org

Get our free daily newsletter.

18 Comments

  1. So what will happen on remand? While I’m impressed with the legal action, I would truly like to see the court decide a) that those involved be made to personally pay all costs, including back disability compensation or serve prison time, and b) that the individuals still in active federal service be fired and charged with dereliction, gross negligence, malfeasance, and collusion in conspiring against the veteran. There are additional charges which should be levied against the OGC legal staff at the VACO and/or VARO. They should be debarred and prevented from future government service.

    Without meaningful punishment at all levels at the DVA nothing will change. It is time that certain determinations long used by the VBA to deny, such as each case is individual, should be overturned to stop the pattern of corruption at the DVA/VBA/VHA.

    • Kurt, unbeknownst to you, you are my hero. Thank you for opening the doors for Thailand vets. I am fighting my husband’s claim for AO disability.
      Karen Stern, TSgt, USAF/100% Disabled Vet ([email protected])

      • Karen, there is no need to thank me, I just want everyone to pay it forward and help there brothers and sisters in arms anyway they can. May you and yours enjoy a peaceful and happy holidays and continue the fight. God speed each of you this coming year.

  2. Seems to me the Court is going after the wrong person. Secretary McDonald just took over in July 2014. Even though he is now in charge there has to be some allowance for the new person taking over. he’s got more than one item on his plate to handle. As far as any fines or fees that need to be paid, it only hurts the Vet because that where the money will come from, the funds set aside for the vet. Go after the idiots who failed to respond. The worker bee who has the responsibility of making that decision. He/She can’t use passing the buck upstairs as an excuse.

  3. I’m glad to see one small victory on behalf of a veteran. Even though it is long overdue. I for one would like to see more intervention from the Justice Dept. in investigating the cycle of corruption that permeates the DVA. The entire system (VHA and VBA) needs to be investigated from top to bottom. This bureaucratic system needs to be skeletonized by throwing these corrupt officials at the VA into jail and then putting them on trial and sentencing them to do prison time. That’s not ever going to happen though. At least not in my lifetime.

  4. Have been paying is forward since my own claim was approved in 1997. My greatest thrill was getting DIC approved last year for a widow who’s husband died in 1988. If you have time, may I contact you?

  5. Brothers / Sisters we are the only HOPE for FUTURE Vets, just as the Vets before us were our only HOPE.
    Our Govt has REPEATEDLY shown us the DOOR when it came COMPENSATION, but just as those before us, we MUST fight for the RIGHTS being DENIED us to ENSURE that FUTURE Vets will not have the same PROBLEMS. To see the CHANGES in our lifetime would truly be a blessing.

  6. This sort of thing nauseates me. That soldier was willing to take a bullet for God and country to protect the innocent from the Darkness, and how vets and currently serving Armed Forces personnel are treated by the current administation and the VA infuriates me.I look up to and respect the honorable people who have served or currently served in the Armed Forces, particularly Marines, for they are worthy to be role models, as my Marine foster father was. I was not deemed worthy to be a Marine myself, nevertheless, is there any way a mere civvie can help in this matter?

  7. I hope that the plaintiff received interest on the restoration payment of lost benefits. Interest is due by law. He should also receive compensatory damages for any pain and suffering and medical costs that he suffered due to any reduction in medical care benefits that he was denied during the course of time when he was rated at 0%.

    • You are on track, but only someone like Ben Krause knows if this is right: Groves probably has grounds for a solid “torts” (injury) claim against the VA, for damages caused to him (mental duress, social stress caused by undue loss of income). He would likely win a few hundred thousand dollars or more. The VA often pays out on tort actions similar to this one.

    • The government can start printing an extra stack of money to pay for damages through tort (damage) claims, a flood of them that may come from this case. Any vet with PTSD who committed suicide over something like this or reasonably similar, their survivors should get a huge award, and their have been many such cases. The new Secretary is clearly inconsistent on things he says and does and fails to do. Sure, he has a huge job but his underlings from the highest VA executives to the lowest level VA employee, and even anyone associated with VA services (county employees, contract workers, etc.) that exploits veterans must be held accountable. Civil law, criminal law, relative to the VA’s own court system face a limit to US Constitutional decisions that have found them exempt from prosecution. That is, the VA can get by with just so much murder, just so much incompetence, greed and avarice, until they must answer to criminal prosecution and civil actions outside the VA court system. A flood of criminal prosecutions and break-through civilian courts civil actions that have previously been barred because of how the Supreme Court has blocked civil recourse actions against the VA has long since gotten to the absurd level. Watch federal district judges start accepting actions against veterans who have been victimized by the corrupt VA system. Watch court orders start coming down very soon. The wind has changed and the VA still does not quite get it. The legal principle often used by all levels and types of arresting authorities is, “badly seized, soundly held”. This means a person, including a VA employee of any kind right up to the highest executives, can and will be arrested by anyone from the local sheriff to a cop on the street, then processed into jail and then held in prison to make sure they are not prematurely released on a VA exemption. This is coming very, very soon. The Secretary must realize that even he is not immune from this sort of action, and he likely knows that already. Watch him start being more candid and consistent because it is so obvious that this is the new direction of the wind in the weather system of the ongoing VA storms. He learned in Spec Ops training to “improvise, overcome and adapt”. He is so far not adapting very well considering the fact that so many of the incompetent actors at the VA are either still doing the same old thing of cheating vets and serving themselves (stealing in one form or another), yet only a small percentage of a percentage have been held accountable in any way. You can’t shoot people at work, including patients and other clients, just because you work for the VA. In just the same way, you cannot commit fraud and steal and misappropriate and misdirect funds and misuse resources for your own convenience at the expense of those they are meant by Congress and law to serve. Arrests are coming, very few believe that or can even see it, but they are coming soon nevertheless. It is called a “transposition shift”, where things suddenly go opposite of what they were for a long time. The shift is upon us; watch it happen. We will see how wise the new Secretary really is based on whether he starts a flood of doing good and right or sits back and lets the good ol’ boy system prevail as it always has. We will see.

  8. My wifE has been waiting since 2007 for her for her initial claim and in 2008 it went to BVA. We finally got her BVA Hearing on August 14, 2014. Although every one who has looked at her claim and evidence can’t believe it was ever denied. Even the hearing judge after combing through the evidence told us that after her hearing was transcribed she wanted to just see the 4 letters written by her VA Rhuematory doctor x2 her Neurologist and her primary doctor who all wrote that after reviewing her medical records and discharge medical paper they all feel that her condition was caused by her time in service, which is when her symptoms all started according to her medical records. Well with that said we still haven’t heard anything and the sad part isn’t the money. It’s the fact that this whole time since she was only 60% a lot of her fee basis consults were disapproved because she wasn’t 100% service connected and now she has Chronic Lung Disease and may more likely sooner than laster may need to put her on the lung transplant list. To top it off I am a 340% service connected disabled Veteran in a wheelchair, so it is imparitive that her claim is done. All we can do is pray. We have had the Paralized Veterans of America and 2 senators helping us with no luck yet. We hope we will hear something soon. She definitely hope a desision should be soon but we hoped that for almost 8 years ago in early March. Actually Allison (under secretary) contacted us and said she would check on it. Hoping, but we know there are always more worse off Veterans than us. Thanks for letting me vent. Tim

  9. Hello, I have been writing about the disruptive committee and how I was set up by a current V.A. employee who told the V.A. Disruptive committee that on numerious occasions, I would come into the clinic at least twice a month and become Disruptive. I was a Federal Employee with the V.A. and this employee retaliated against me for making a statement about the way I felt she was not using the Hispanic Committee to its full potential.

    The employee was also mad at me, as the Director made me the Hispanic chairman of that committee and she did not like this at all. I have been fighting this for over 10 years and have written to senators, The V.A. Denver V.A.M.C. director, whom responded to a senators inquiry and that letter stated Mr. Gallegos records were never coded for disruptive behavior, His records were never Red flagged and there was never an investigation completed.

    Since the V.A. Director states this, the employee who is retaliating against me was sitting in on the Disruptive Committee and was able to convince the committee that I had been Disruptive not only once but on Numerious Occasions and did not produce any proof in writing that I had ever been Disruptive. As I have never been Disruptive so there can not be any evidence, still she was able to fool the committee to believing that I had been Disruptive. I have written to the Office of Inspector General Hot line through a Senators office and they replied as follows.

    Dear Mr. Gallegos
    The U.S. Department of Veterans Affairs Office of Inspector General (OIG) Hotline received your complaint dated November 4, 2014. The VA OIG’s mission is to detect and prevent fraud, waste and abuse within VA programs. The Hotline accepts tips or complaints that, On a Select basis, result in reviews of, VA related criminal activity, Systemic patient safety issues, Gross mismanagement and Misconduct by senior VA officials.

    Because we receive more complaints than the OIG has resources to review in dept, we limit investigative efforts to issues that have the most serious potential risk to Veterans and VA operations. The Hotline does not accept complaints that are unrelated to VA or are addressed in another legal or administrative forum. Additional information concerning the types of complaints the OIG accepts for review maybe found at http.//www.va.gov/oig/hotline/default.asp.

    Our staff examined your complaint, but we did not select it for formal review as an OIG case. We determined that the issues you raised are addressable within other existing legal or administrative forums. The Veterans Health Administration (VHA) which comprises all medical facilities within VA is divided into health system networks called Veterans Integrated Service Networks, or VISN’s. The VISN’s exercise oversight authority of medical facilities within their designated areas. If you are not satisfied with the care you are receiving or received at a VA facility, you may wish to contact the respective VISN that has oversight authority of that medical center or clinic.

    The contact information for your respective VISN 19: Rocky Mountain Network at 303-756-9279

    There is no appeal process on the disposition of a Hotline complaint. THIS IS OUR FINAL RESPONSE ON THIS ISSUE> Thank You

    VA OIG HOTLINE DIVISION STAFF

    This must be a standard letter sent out as there is no signature on this letter, I do not understand how they can state that a V.A. Employee can slander a person and punish them for something that never happened and get away with it. The Denver VA let the employee that is retaliating against me answer all inquries from the Senators office and the DAV (FOX watching the Hen house), she will never admit that she did this on purpose to get back at me for what I said about her not using the chairpersons duties to its full potential. Just because her fillings were hurt, She was able to get the VA to punish me with out having to produce any evidence at all and the disruptive committee only used hearsay, to punish me.

    I can not understand how the OIG determined that this case does not fall into one of their accepted tips of VA-related criminal activity, Systemic patient safety issues, Gross Mismanagement or Misconduct by a senior VA officials.

    I also sent the full packet to Mr. McDonalds office and its been confirmed that he received it, So I guess it a wait and see. Its sad that no one seems to care. Its just Pass the Buck.

  10. Good morning Benjamin,

    Our brothers and sisters in arms serve this great nation with honor and devotion. I love America and for what she stands. I am a disabled Army veteran myself. It is such a sad injustice that our fellow veterans continue to struggle, fight, and stress for is rightfully theirs. And yet, they get slapped in the face with excuses, delays, and empty promises. Delays in their benefits directly affects their health, and threaten their very lives especially when it comes to chronic or terminal illness. Why is this happening? In a perfect world, when a veteran qualifies for their medical benefits and compensation, they should get them immediately! However, with “red tape”, politics, some inept employees, and the lack of accurately processing claims in a timely matter, our veterans continue to suffer. Something has to be and needs to be done. Please continue to pursue what is fair and just for all!!! Thank you for allowing me to passionately voice and support all veterans.

    Donna M. Stubblefield
    Proud Disabled Army Veteran
    Sergeant/16.5 Years of Honorable Service

    • Now im 63 years old and im a disabled vet. My last kid is 15, he stay with me and also disabled. The umc hospital messed up two surgeries on him and get paid a dime. The city police made me messed up my last car. For over 30 years the va and bva been messing over my case. Every time i when the case the va and bva will root back. They even pay a private lawyer on last end of the game from Ohio name Michael j mooney 5,480 and still want pay me or the kids. Every time you turn around what makes things so bad me and my son on a fix income, social security messing with us trying to cut of the lil check we is getting dolphuscollins Jackson ms x veteran and civil right person for all people rights. (fight of a veteran is the name of my video on YouTube )check it out

  11. Now im 63 years old and im a disabled vet. My last kid is 15, he stay with me and also disabled. The umc hospital messed up two surgeries on him and get paid a dime. The city police made me messed up my last car. For over 30 years the va and bva been messing over my case. Every time i when the case the va and bva will root back. They even pay a private lawyer on last end of the game from Ohio name Michael j mooney 5,480 and still want pay me or the kids. Every time you turn around what makes things so bad me and my son on a fix income, social security messing with us trying to cut of the lil check we is getting dolphuscollins Jackson ms x veteran and civil right person for all people rights. (fight of a veteran is the name of my video on YouTube )check it out I NEED A ATTORNEY TO FILE A WRIT MANDAMUS AGAINST THE VA
    P.s.this is dolphus collins again jks ms from benton ms country .black xarmy man e2 rank stay now jks ms 63 age no bad record no drugs no drunk love god .love people .civil rights for vets and people .two all people on facebook and people that love god and love all people and my friends onfacebook ..look up dolphus collins on facebook. And cha 16 teen and cnn news report onfacebook about my self and the va bva .help me help vets .help me keep the va bva in the spot light .this could be you are your wife kids are people .thanks dolphus collins news 16 teen cnn news va story on facebook thanks share it

Comments are closed.