VA General Counsel Shoots Self In Foot Before Resigning

VA General Counsel

Benjamin KrauseWill Gunn, the VA General Counsel (GC), resigned in disgrace on July 3, 2014. His resignation was announced in mid-June 2014, along with that of Joan Mooney, the equally disgraced head of VA’s Office of Congressional & Legislative Affairs. Mooney gave undeniable, evasive, dishonest testimony to the House VA committee in late May 2014, but Will Gunn never testified. Instead, he quickly resigned. And this was only after Joan Mooney fingered him as the mastermind who gave the order to destroy the incriminating Phoenix VAMC records. Gunn knew his subpoena to testify was coming next.

However, Gunn issued a memorandum on May 13, 2014 to all VHA employees after the wait list and fraudulent statistics scandals broke out in the press. But the memo on document preservation was apparently written before he gave the green light to later destroy VHA documents in a move that fired up Congress.

We will get to the contents and ramifications of Gunn’s pre-resignation “Litigation Hold” records retention memo shortly, but first a bit of history to refresh the memories of our readers.

[Read Will Gunn Memorandum Here]

Readers should first remember some of the shocking corruption that went on at the VA GC’s office under Mr. Gunn’s leadership. We cite two of the biggest examples of fraud where GC used dishonesty for a calculated advantage.

The first was when U.S. Supreme Court Chief Justice John Roberts lambasted a government attorney at oral argument, over the VA GC lawyers’ unethical actions for their repeated legally “unjustified” challenges to the EAJA attorney fee awards to veterans’ lawyers; even after they won appeals at BVA, the U.S. Court of Appeals for Veterans Claims (CAVC) and the U.S. Court of Appeals for the Federal Circuit in Washington, DC. (see excerpt of Astrue v. Ratliff, Case No. 08-1322). In other words, VA lawyers under Gunn were making “substantially unjustified” and “legally erroneous” claims in making these baseless challenges to court-awarded attorney fees. Chief Justice Roberts’ remarks clearly displayed his disgust and contempt for VA lawyers because of the policy of fraud Mr. Gunn encouraged.

[Read Chief Justice Roberts’ Remarks Here]

The second major fraud committed by Mr. Gunn was also in May 2014 when he ordered the wait list records from the Phoenix VAMC could be destroyed. Gunn’s game there was to simply change the name of the VHA records from “official VA medical records” to mere “interim work product.”  The latter is not “required to be kept” under the federal records retention regulations imposed by the National Archives and Records Administration (NARA). With one craftily worded memo, Gunn gave the green light to the Phoenix VAMC staff to illegally destroy records that would have proven beyond any doubt the wait lists existed and exactly how many veterans were affected by it. It was a shameless, unethical cover-up. We reported on this newest scandal story on May 29, 2014.

Now we turn to Gunn’s May 13, 2014 memo to all VHA employees through the Executive in Charge of Information Technology and the VHA Under Secretary of Health. In Gunn’s memo, he ordered all VHA employees in all VA facilities to retain “all responsive records” “that may be relevant to consult and appointment delays within VHA.”

We must ask now whether Gunn’s May 13th memo pre-dating the illegal destruction of the Phoenix VAMC wait list and consult records in late May 2014, have a lot to do with Gunn’s abrupt and unexplained resignation announced in late-June 2013, just a month later??

Your attention is drawn to paragraph No. 5 of Gunn’s memo titled: “Preservation.” All along over the years, VA has sworn that their medical records system will not allow alterations or deletions, without any exceptions. However, Gunn’s own memo reveals that such assertions by VA simply cannot be true – and in fact are not true, but entirely false. We see this clearly as follows:

Do not delete, discard, overwrite, or destroy any Information that might be relevant even if it appears unimportant. If you believe that any relevant information might be destroyed, you must suspend, or arrange for the suspension of, the scheduled destruction.”

So how can these deletions, overwrites or destruction of critical VHA records occur at all if VA truly has a records system that really prohibits any attempts to delete, alter or destroy them?

Gunn then goes on in his memo, under paragraph No. 7, titled: “Types and Sources of Information,” and reveals where these critical VHA medical records may currently be stored:

“The information may be in a tangible form (e.g., paper) or electronic form (e.g., email, word processing documents, spreadsheets, databases, electronic calendars). The information may be found in office files, desktop or laptop computers, hard drives, portable storage media (e.g., CDs, DVDs, flash drives), mobile communication devices (e.g., cell phones), and other locations where documents, either paper or electronic, may be stored. Sources of information may include personal computers or personal email accounts, if they were used to conduct agency business.” (Emphasis ours)

Now just wait a minute, here! The VA has repeatedly assured us veterans that VA officials and employees may NOT use their personal computers and mobile devices to store privacy-protected and confidential veteran medical data. VA has also repeatedly sworn to us that neither can veterans’ data be downloaded to personal flash drives, mobile phones, CDs, DVDs, or any other digital storage media. They swear to us that such things just do not happen, and are impossible to do by VA employees.

The memo by Mr. Gunn clearly speaks its own condemnation and reveals that VA has been lying to us veterans all along. If not, then how and why would Willie Gunn make explicit reference to deleting or destroying veteran data on all these other personal media devices if such a thing were impossible, as VA asserted over many years past?

Gunn’s own memo is a tacit admission that such illegal actions by VA staff can and do occur. Moreover, we know now that even secret wait and consult lists were destroyed by simply renaming them. We wonder if the IRS employees under Lois Lerner received the same “records retention” memos.

The other big question that needs to be answered is how could Gunn write and sign his name to a memo like this before he gave the greenlight for the Phoenix VAMC officials to deem the wait list and consult lists to be “interim work product” that could be destroyed in mid-May 2014?

Seems to us that Willie Gunn and his legal staff at VA Central Office have no lack of shame, imagination, or creativity over just how many times they can lie and get away with it. Willie is gone for good and now runs a “Gunn Consulting Services, LLC” in DC.

We can just guess who he is giving consultations to based on past history, especially when it comes to creative renaming of federal records and how to destroy evidence of criminal wrongdoing by U.S. Government employees. Within this new growth niche in DC, it is safe to say business is BOOMING, at least for now.

As the saying goes, “There’s a rat in the woodpile” on this one.  And it stinks to High Heaven.

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  1. The memo that this article is criticizing is a template issued for all litigation holds. It is not a personal memo from Mr. Gunn. The author of the article fails to recognize the fact that a litigation hold applies to more than just sensitive medical information and Personal Identification Information. That is why it can also apply to any personal devices. In addition to that, personal devices have been used in the past for telework and provided with qualified encryption protection by VA IT, although I don’t think that is the case anymore — all devices used off site are now VA supplied to my knowledge.
    Regarding the articles’ comments on the disagreement with Chief Justice John Roberts – how does it become fraud to have a legal disagreement which happens to fall on the side of disagreeing with Chief Justice John Roberts? The Supreme Court itself disagrees on almost every case that comes before it, with a split vote. We don’t call that fraud.
    And where is the reference to the quote “interim work product” on which you base the accusation that Mr. Gunn allowed for the destruction of records? I don’t see a reference given, nor a context explained. Somewhere you are quoting an explanation that there is a difference between what is defined as official VHA record and what is defined as interim work product — yes that is true, but now how was that misused where to allow destroying of records during a litigation hold which embraces more than official VHA records?

    1. Your reference to “interim work product” vs official VA record has nothing to do with any personal issuance by Mr. Gunn – Why do you connect it with him? If the VA facility destroyed interim work product before the litigation hold, then technically they did not break the law. If they destroyed interim work product after the litigation hold (which extends to more than official VA record) then they broke the law. What does that have to do with Mr. Gunn?
      My personal interaction with Mr. Will Gunn was limited, but my impression is that Mr. Will Gunn was one of the best, most competent government employees I have encountered in my 15 years working in the federal government. He was certainly the most motivated to bring about competency in his subordinates that I have met in the government. He was simply expected to resign because with a new secretary of the VA they put in their own team of people.

  2. If you are the same vet trying to contact me through, I replied to your post there yesterday.

    Here is my reply:

    “If you , Rodney T, are the same vet who commented today at an older post I made re: FTCA at Ben Krause’s

    site…..I suggest that you make an appointment with the VAMC director to try to straighten this issue out.

    I went through similar problems myself under FTCA but what they said never existed (a critical Peer Review ordered by Regional counsel and done by a VA director who also was a doctor supporting my malpractice charges) meant I had to continue my case without it.

    The RC and also the doctor did confirm to me that this report had been prepared and sent to the RO for my 1151 case, and the RC suddenly retired but he wanted to settle with me right away,under FTCA due to this report,before he retired but the report came up ‘missing’ and then “never existed”.

    I found the non existent report at the bottom of my C file in 2003 and used it for my AO IHD claim.

    You might not be the same vet there …..just a guess.

    Maybe this will help others too.

    Malpractice has a paper trail and does not rest on one missing medical record or on one or two specific documents.

    If the VA was negligent to the point they caused a veteran harm, there will be much more in the med recs to support the charges.

    However, unless one has the time to practically become a doctor, that is best left up to an IMO doctor ,with expertise in the field of the malpractice , to review the entire set of VA medical records and then opine on the basis of the malpractice charges..

    It took me a long time to even figure out all of the medical acronyms in my husband’s med recs.

    There was one specific document however that made me know for sure they killed him.

    It was an ER certificate. But even if that certificate had been missing, I could still reconstruct from what happened the med recs, …that the VA failed to properly diagnose and treat him..

    I had to review the medical records from the day VA gave him his employment physical to work there ,(that was evidence for my FTCA ) up to the autopsy. I did that backwards as well , autopsy first then the “Watergate “question… what did they know and when did they know it.

    If anyone is malpracticed on by VA, the records will reveal it but most non medical lay people cannot understand detailed medical records , MRis, odd symbols and even blood chem values ,so best that a real doctor can review them.”

    I didn’t make the point at hadit that I also proved a cover up occurred when my husband was sent from one VAMC to another one.The whole story is at hadit anyhow,.

    There were crossed out medical entries and other handwtitten notes that took me a long time to decifer. at the VAMC that tried to cover up the malpractice up but they made it worse.

    I didn’t have an IMO doctor or a lawyer. In those days the internet was nothing like it is now., whereby malpractice attorneys and IMO docs these days can easily be found.

    But I won.

    Due to documenting positive proof of 6 years of VA malpractice.
    and the fact that lawyers at the OGC can read.

    Dont get me wrong…we ( GC and I) went round and round but at some point the VA had to cave in.

    If you read the 1151 HBP claim I had denied recently and then reversed due to CUE in the denial fairly fast, at hadit
    and the fact that I am preparing a Writ of Mandamus on the other 1151 Stroke claim
    to get the court to order my RO extend to me basic VA case law (38 CFR. 4.6) as they refuse to read my evidence for the additional 16 months of accrued, you will see how
    malpractice that caused my husband’s death 20 years ago is still costing them cash.

    Your entire medical record profile ,if any negligence or malpractice occurred, will reveal those facts to the trained eye of any IMO doctor with expertise in the field of the disability.

    BTW if you are the same hadit vet trying to contact me personally , I do not deal with claims by email or by phone.

  3. I just say thank GOD for being out of the military, thank god, that I have no reason to be in line down at the VA medical place, and finally, thank god, that I did not get married, while in the military. Lots to be thankful for, there.

    1. BERT, I wasn’t married when I was in the service, but a judge ordered me to pay my Ex from my VA disability compensation anyway. I also know that it doesn’t matter if you are retired or disabled the court will still award up to half, and sometimes more of your retirement and disability.

  4. “”Secretary McDonald Announces the Start of a National Recruitment Effort to Bring Needed Medical Professionals to VA””

    This is what Congress is charged to do, from both the Senate and House Veterans Affairs Committee’s, as to the needs of the peoples responsibility, in this case, the Veterans Administration and the effects of the flag waving, Poser Patriotic, wars especially. Decades and wars from of not, as issues are ignored or blatantly denied they even exist to bolster the long conservative excuses for not fully funding. As they seek to privatize for corporate profit and thus build bigger budgets to increase that profit, bringing the private sector problems into all area’s of the VA charges for us Veterans!

    Congress should also, as the people’s representative’s, be helping the specialized higher education, industry now, facilities in whatever needs to recruit the high school grads into the fields of health care as shown by the dangerous low levels and problems from when a few years back the VA started recruiting trained mental health professionals and found the huge shortage of in the private sector to recruit from. And that’s been seen also in other area’s of the society and the many dangerous problems caused by that shortage of trained experienced health professional especially in mental health needs.

    In these present times, the past decade plus, two more wars and long occupations, after abandoning so quickly the missions and those sent to accomplish after 9/11, came with two tax cuts, huge for the wealthy. Neither of these wars have yet to be paid for. The monies requested, then obstructed by congressional conservatives, DeJa-Vu over and over again, for the Veterans Administration, continue to be mostly borrowed and if ever paid done so by future generations. The VA thus is still grossly under funded especially when related to wars aftermath for the coming decades after.

    Fact: TX-19 Congressional Candidate Neal Marchbanks – Veteran: 28 March 2014 – “Congress controls the budget for the VA and it is the fault of Congress that the VA does not have enough employees and that the facilities are too small.”

    Fact: Sixth District Congressional candidate Seth Moulton: “Congress has made ‘travesty’ of veterans care” 05/14/2014

    Read ‘Congress’ as the 99%plus People Served!!!

    Fact: “We are dealing with veterans, not procedures—with their problems, not ours.” —General Omar Bradley, First Administrator of the Veterans Administration

    Fact: “If military action is worth our troops’ blood, it should be worth our treasure, too — not just in the abstract, but in the form of a specific ante by every American.” -Andrew Rosenthal 10 Feb. 2013

    Fact: “Why in 2009 were we still using paper?” VA Assistant Secretary Tommy Sowers “When we came in, there was no plan to change that; we’ve been operating on a six month wait for over a decade.” 27 March 2013

    Much of what comes from Research and Development, and first hand initial filling any needs, treatments, equipment and improvements on etc., and often with collaborations with Universities and Colleges, with no royalties shared as the private sector uses for profit, in the DoD and VA, not only in health care, is then used to improve the private sector in the similar area’s, like health and care, so it’s never monies wasted, it’s investments into an improved society and world!

    USN All Shore GMG3 ’67-’71 Vietnam In Country ’70-’71 – Independent **

  5. The following statistical analysis accompanied my letter (posted below) sent to the U.S. Senate Veterans Affairs oversight committee


    The following is a rough statistical estimate of the annual theft occurring when it comes to unsuspecting disabled veterans paying illegally converted child support amounts of their disability benefits award via the recently signed into law, HB 3017, by Governor Perry and enforced by the Texas Child Support System. A System made up of family law attorneys, judges and the Title IV-D state agency, overseen by Attorney General Greg Abbott.

    How many veterans are in the Texas child support caseload?

    To facilitate our understanding of veterans in the child support caseload, both the Department of Health and Human Services and the Department of Veterans Affairs conducted a data match in December 2010 to determine how many veterans were in the caseload and their case characteristics. This information is important for assessing the potential for implementing such collaborations nationwide.

    Veterans comprise a small proportion of the noncustodial parent child support caseload. Out of 10.7 million noncustodial parents included in the match, veterans comprise just over 5 percent of the total. This proportion does not vary much by state. It ranges from just under 4 percent of the noncustodial parents in Utah to 9 percent of noncustodial parents in Alaska.

    However, small percentages do not necessarily mean small numbers. The number of noncustodial parents who are veterans in the child support caseload ranges from about 500 in the Virgin Islands to almost 61,000 in Texas. About half of the states have more than 10,000 veterans in their child support caseload.

    Source: The Story Behind the Numbers, Veterans in the Child Support Caseload, OCSE November 2011

    From a 2003 Department of Veterans Affairs Houston Regional Counsel letter sent to Texas Child Support Office in Austin, we know that Texas Title IV-D offices have been ‘inappropriately’ submitting writs or Income Withholding Orders on an estimated “9 out of 10” disabled vets appearing in Texas family court.

    The following numbers and percentages are established with 2011 statistics found within Veterans in Texas: a Demographic Study found at

    Approximately 19 percent of Texas veterans (309,299 individuals) have a service connected disability rating.

    Therefore, of the 61,000 veterans in the Texas child support caseload and all things being equally applied, about 11,590 veterans have a service connected disability rating. We know in 2011 that 25.1% of these 11,590 vets had at least a 70% to 100% disability rating. i.e. 2,909

    Therefore calculating 90% of 2,909 establishes 2,618 disabled vets who do not waive a portion of military retired pay in order to receive their benefits award.

    Assuming all of these 2,618 disabled veterans were getting compensated at the 100% disability rate (an individual unemployability rate for those rated 70, 80 or 90% and all with children benefits) and each has received an apportionment ruling stating that no portion of their award is to go to their children, we proceed to the last assumption necessary to arrive at an estimated amount of theft. And we know the Congressionally ordered apportionment rulings are backed under the full authority of Title 38 U.S.C. Section 511 signed in 1991.

    Finally, also assuming an ordered child support calculation establishment of 25% on an estimated $3,000/month benefits award for each vet, $750/month is being illegally withheld or collected under duress of incarceration &/or fine from each of these unemployable, disabled veterans. For a case in point, see Mr. Williams had a 2002 Special Apportionment Decision letter stating that no portion was to go to his children i.e. “apportionment denied”. See attached file

    This contemptuous tactic results in an estimated $23,562,000 annual theft from Texas disabled veterans! This estimated figure fails to take into account those disabled veterans rated less than 70% but also experiencing illegal attachment of their benefits award.

    And we know that the feds reward the state of Texas with annual incentive money (see 42 U.S.C. Section 658a) for enforcing these illegal amounts of child support upon disabled veterans who find themselves in the adversarial system. To add insult to injury, some of the $65,000,000 incentive money Texas just received from the feds in 2013 was based upon illegal attachment of disabled veterans’ benefits awards in child support orders and subsequent enforcement!

    “It is a remarkable achievement that the Texas child support program is responsible for more than 72 percent of the nation’s annual growth in child support collections,” Attorney General Greg Abbott, currently running for Governor, proclaimed. source:

    LT(j.g.) Gregory Parsons USN, PDRL

  6. Love what your doing, reporting and helping us veterans. God Bless Ben. P.S. I think you might enjoy my and many others under Chapter 31. I have been suspended from the Voc rehab program with just 2 courses left for this fall semester and I receive my B.A in Psychology. I brought legal documents that I downloaded from Harvard Law that are the codes and regs for Chapter 31 extension of Voc rehab benefits.Which would give me the ability to do graduate work for my masters in Psych. She and her supervisor refused to look at and read above said documents. Told me I didn’t qualify, I asked for her to show me the laws and codes that negate my position. They refused to accommodate my simple request. I left abruptly and told them in earnest that there is a wall of separation between us,I have retained a pro-bono law firm that specializes in Veterans. I am sick and tired of their pundit, made up arrogance of condescending laws that are just made up to insure their Jimmy Carter bonuses of 1967

  7. If you are a U.S. Military veteran your military service will be used against you in a divorce. Benjamin Krause has only hit the tip of the problems our veterans face when they return home. Good reporting Ben! Great comments!

    In today’s world marriages which last a lifetime are extremely rare. In our society today, failed marriages and divorce are common place. You no longer need a real reason to file for divorce; you merely have to file and the divorce will be granted. In most states, it’s about that easy.
    The information contained in this article is nothing new. The coldhearted tactics described below are used successfully every day in every state in the U.S. Divorce attorneys and Department of Family and Children Service professionals make their living on broken families and failed marriages. Divorce and child custody law is a multibillion dollar business. Attorneys and DFAC professionals thrive on those going through a divorce. The more divorces there are, the more money these individuals make. If no one got a divorce, they would be out of business.
    In addition, divorce attorneys will not hesitate to use every trick in the book to get their client the largest award possible. To many attorneys it is all about money and nothing else.
    One particular group of individuals is more vulnerable to civil court abuse than most others. Sadly, our military personnel and disabled veterans (men and women) have been singled out as very likely to be discredited and disqualified as parents for several different reasons. These men and women routinely have their military service used against them in divorce court. From their mandatory extended deployments, to Post Traumatic Stress Disorder (PTSD), to the inclusion of VA disability compensation as ‘income’ when calculating alimony, it often seems that everything possible is used against the veteran. Divorce attorneys have a wide range of tactics and strategies they use to portray our veterans as irresponsible, unpredictable, mentally and emotionally unstable, and many as capable of domestic violence.
    In May of 2010, a delegation from Operation Firing For Effect (OFFE) traveled to Key West, Florida to attend Earnest Pridemore’s divorce hearing. Mr. Pridemore represented himself, and attorney David L. Manz of Marathon, Florida represented Mrs. Pridemore. At one point in the hearing, in support of a restraining order against Mr. Pridemore, Manz implied that all military veterans were high risks for spousal abuse and domestic violence by virtue of their military training, which aggressively teaches them to kill and destroy.
    Civil Court Judge Mark Jones did not strike Manz’s statement and it was allowed into the hearing transcript. This anti-military statement by attorney Manz is a perfect example of how low some attorneys will go to discredit an honorable military veteran. Earnest Pridemore was ordered to surrender his antique firearm collection to sheriff’s deputies. OFFE has received dozens of similar complaints from active duty personnel and veterans. Every day in courtrooms across the nation military veterans and active duty personnel are having their service in the United States Armed Forces used against them.
    Veterans and active military personnel are losing custody, parental rights, and even visitation based on PTSD ratings and overseas deployments. The twisted logic behind these unjust court rulings is: a PTSD diagnosis implies emotional instability and unpredictable behavior; and an extended tour of duty overseas indicates a lack of contact and involvement in the development of one’s child or children. In fact, in some cases where a parent ‘voluntarily’ and ‘willingly’ joined the military after the birth of a child, they are being accused of intentional abandonment. Unfortunately, all of these factors (& others) are being used against our veterans and military personnel who are going through a divorce and seeking custody of, or just visitation with, their child or children.
    Another tactic being used by attorneys is convincing court judges to award alimony and child support based solely on a totally disabled veteran’s disability compensation. This practice goes against established federal law which protects disability compensation from attachment in any legal process whatsoever. The disabled veteran is forced to give their VA disability compensation to their ex-spouse, or go to jail for contempt. Some civil court judges claim that they do not have to honor federal law in state divorce court.
    Attorneys have even gone as far as to include wording in divorce settlements covering the possibility that a veteran might become disabled and might receive disability compensation in the future. If that occurs, those funds will then be used to increase their ex-spouse’s alimony award. In other words, before a disabled veteran even receives a disability rating or compensation, their ex-spouse has already been awarded a significant portion of this money.
    Divorce attorneys routinely paint a distorted picture of our military personnel and disabled veterans. OFFE has documented multiple cases where disabled veterans have unconscionably had their hunting guns taken away during a divorce for no reason other than that the veteran had a PTSD rating. This action automatically depicts the veteran as dangerous, which is the opposing attorney’s objective.
    Another abuse OFFE has documented is retired military personnel losing as much as half of their retirement to an ex-spouse to whom they were not married to during their military service. Although the ex-spouse contributed nothing to the veteran’s military career, they will receive military retirement moneys.
    OFFE has also documented cases where the reason given for the divorce is because the veteran is disabled and the spouse does not wish to contribute to their care any longer. Then, adding insult to injury, the ex-spouse is awarded a large portion of the veteran’s disability compensation. Compensation the veteran receives for the same disabilities their former spouse used as an excuse for the divorce.
    Some of our nation’s most deserving (our disabled veterans) are suffering great hardship at the hands of civil court judges who couldn’t care less how many Purple Hearts they have, or how many limbs they have left. Too often, the primary objective of divorce attorneys is to shake loose the federal money our veterans receive as compensation for their disabilities – so their client can pay them for their legal representation. Everyone in the court room has a vested interest in the veteran’s disability compensation.
    Realizing every case is different; ask yourself a very simple question. Take the word “veteran” out of the divorce equation. Two individuals get a no-fault divorced. One is able bodied and capable of working, and one is severely disabled and unable to work. Which one do you think should receive alimony?
    OFFE is currently monitoring 150 separate cases of veteran abuse in divorce courts nationwide. OFFE has devoted 10 years of research to these problems. To date, 9 of OFFE’s disabled veterans have been jailed for refusing to use their VA disability compensation to pay alimony and/or support. Suicide among our former and active duty military far exceeds the national average. Depending on the age range examined, veteran suicide rates are as much as 400% higher than that of the corresponding civilian population. OFFE is convinced that there is a direct link between divorce, homelessness and suicide among our veteran and active duty military population. Creating a situation where a parent is homeless or takes their own life is not in the best interest of any child.
    As a nation, we ask our young men and women to serve in our military, and if necessary kill and destroy for our protection. Then, we stand quietly by as aspects of our legal system use their military service against them.
    [Footnote] Finding an attorney to represent a veteran’s best interest in a divorce is extremely difficult, as most are not willing to go against the status quo. It is also very difficult to find case law which rules in the veteran’s favor. Two attorneys who deserve an honorable mention are; Frederick Stud Jones of Georgia, and Patricia Campbell of Ohio, both of whom recognize the problems facing our veterans in civil court. In addition, Cote v. Cote (2011 VT 92 No. 2010-057) heard by the Vermont Supreme Court in August 2011 demonstrates the proper way to treat veteran’s disability compensation in a divorce. Veterans have no friends in the VAGC.

  8. Benjamin, you might also note that my following letter blasting GC Will Gunn was received by a U.S. Senate Veterans Affair oversight committee contact on Monday, June 23, 2014:


    Here are recent articles that shows the disdain of a family law judge for both the military and federal preemptive law:

    Last year, Steve Bresnen [ ] was hired as a lobbyist by the Texas Family Law Foundation to ensure that well over 10,000 of their clients, disabled vets, would continue to be regularly paying subjects until the veteran’s last child aged out of the contentious, adversarial system.

    Lobbyist Bresnen was paid handsomely, a reported $50,000 to $100,000, to twist Texas Legislator arms for TFLF last year:

    “With over 6,000 members (including family court judges), the Family Law Section has become the fourth largest section of the State Bar… and is made up of smart, hardworking and compassionate lawyers from across the State committed to the practice of family law”…

    Legislative Session

    “May 27, 2013 brought a close to the 83rd Regular Session and another successful legislative effort by Texas family lawyers. While it would be impossible to acknowledge and thank every individual that had a hand in our legislative success, it was a great team effort. The Sections Legislative Committee, chaired by Jack Marr and Diana Friedman, began work in August 2011 and drafted 16 family law bills. We owe a huge thank you to the legislators who sponsored these Section bills including Rep. Eddie Lucio III, Rep. Senfronia Thompson, Sen. Royce West, and Sen. Jose Rodriquez. When the legislative session began, the Bill Review Committee, led by Chris Wrampelmeier, reviewed and analyzed hundreds of filed bills. During each week of the regular session, members of the Texas Family Law Foundation, at their own expense, spent the week in Austin reviewing and amending bills, meeting with legislators and lobbying on behalf of Texas family law.

    The Section is also thankful to Rep. Tryon Lewis, Chair of the House Judiciary and Civil Jurisprudence Committee and Sen. Royce West, Chair of the Senate Jurisprudence Committee for working with the Foundation. Last, but certainly not least, none of our success would be possible without the hard work and dedication of our lobbyist and friend, Steve Bresnen”….from

    HB 3017, which became law in September 2013, ensured that a disabled veteran’s due process would not be codified in the new family code.   Lobbyist Bresnen assured legislators that the 1987 Rose v. Rose U.S. Supreme Court case was the definitive ruling on disabled veterans and child support:

    “In 1987 the United States Supreme Court held that a state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, even if the veteran’s only means of satisfying this obligation is to utilize veterans’ benefits received as compensation for a service-connected disability.  Rose v. Rose, 481 U.S. 619 (1987).  Currently the application of child support guidelines presumptively includes a disabled veteran’s compensation and pension as a net resource, pursuant to Section 154.062 (Net Resources).  Although sections of the Texas Family Code provide guidance for treatment of a disabled obligor’s net resources when the obligor is receiving Social Security benefits the code is silent as to how to appropriately calculate and allocate a disabled veteran’s United States Department of Veterans Affairs (VA) compensation and pension benefits… 

    H.B. 3017 addresses the inconsistency of the law as it treats disabled parents who struggle with contributing to the economic well being of their children.  The treatment of disabled parents under the law should be the same regardless of whether the disabled parent is receiving Social Security benefits or VA benefits…

    H.B. 3017 amends the Family Code to clarify the treatment of disability payments from the VA in determining child support”.

    However, Mr. Bresnen didn’t mention to legislators that for all of the disabled veterans appearing in family court for a child support hearing, only about 10% waive a portion of military retired/retainer pay in order to receive their VA benefits award.  See attached 2003 VA to TX letter 

    For about 90% of the disabled veterans, their benefits award was not remuneration for employment i.e. not disposable earnings/income and therefore, not legally equivalent to Social Security Disability Insurance benefits which are disposable earnings.See 5 CFR 581.401 & 15 U.S.C. Section 1672  Other laws signed post 1987 were not mentioned in the Bill analysis include 38 U.S.C. Sections 5301, 5307 & 511, 42 U.S.C. Section 659 (h)(1)(B)(iii), 5 CFR 581.103(c)(7) nor the federal Consumer Credit Protection Act beginning at 15 U.S.C. 1671. 

    Public policy directive, IM-98-03, Financial Support for Children from Benefits Paid by Veterans Affairs failed to make the guidelines.

    The states are no longer authorized, by the authority of the Secretary of the Department of Veterans Affairs, to attach or establish a portion of a disabled vet’s benefits award, when legally defined in granted due process as ‘not remuneration for employment’, in a child via hearing:

    38 CFR § 3.452 Situations when benefits may be apportioned.

    “Veterans benefits may be apportioned:

    (a) If the veteran is not residing with his or her children and a claim for apportionment is filed for or on behalf of the … children”. 

    See the authorized claim form here


    38 CFR § 3.458 Veteran’s benefits not apportionable.

    “Veteran’s benefits will not be apportioned:

    (g) … If there are any children of the veteran not in his or her custody an apportionment will NOT BE AUTHORIZED unless and until a claim for an apportioned share is filed in their behalf”.

    18 U.S.C. Section 641 is also deemed irrelevant in Texas when it comes to converting VA disability benefits awards, defined as not gross income at 26 U.S.C. 104 b.2.D, into taxable child support income.  And despite the fact that the Family Code had long ago engrossed the benefits award as not gross income in Section 8.055.  But then again, how else can Texas receive promised federal incentives for child support enforcement mentioned in 42 U.S.C. Section 658a if it merely honors the VA Apportionment laws, regulations and policy directives which provisions non-taxable benefits directly to the veterans children? A similar case in point, the recent Nicholas Viltrakis case at

    Perhaps Mr. Bresnen was not aware that U.S. Congress actively legislates to repeal discovered deficient laws and to preclude a detrimental Supreme Court ruling from standing in the way of their intentions? After all, what new laws, regulations and policy directives regarding this legal issue could the U.S. Congress possibly pass in 26 years time? Has Congress ‘positively required by direct enactment’ that state law be preempted?

    The Department of Veterans Affairs Act of 1988 (Pub.L. 100–527) changed the former Veterans Administration, an independent government agency established in 1930, primarily at that time to see to needs of World War I, into a Cabinet-level Department of Veterans Affairs and resulted in implementation of many new, additional legislative Public Laws.

    See Legal Jurisdiction files attached by Protect Veterans Benefits facebook Community owner, Peter Barclay


    “Since early 2010, the Department of Health and Human Services through its Office of Child Support Enforcement (OCSE), the Department of Veterans Affairs (VA), and the American Bar Association have been engaged in a pilot project to develop models of collaboration to help veterans who are homeless or at risk of being homeless with their child support issues”.   Really?  Where was Houston & Waco Department of Veterans Affairs Regional Counsel during the vetting of HB 3017 last year?  They did not register for any of the public hearings held in April to voice concerns about the above mentioned deficiencies that would lead to substantial harm to disabled veterans within their jurisdiction. 

    The functions and responsibilities of Regional Counsel found at 38 CFR Section 14.501 includes (d) … “is authorized to cooperate with affiliated organizations, legislative committees, and with local and State bar associations to the end that any State law deficiencies relating to Department of Veterans Affairs operations may be removed. No commitment as to proposed legislation will be made without the approval of the General Counsel”.  Will anybody take the blame for this inexcusable federal harm that has come to pass for thousands of unsuspecting disabled veterans who continue to pay recurring, substantial amounts of their benefits award to Texas family attorneys entrusted to realize due process of all laws, regulations and policy directives in contentious, adversarial child support hearings?  Hearings that only include the following due process guideline for all judges:   

    “Sec. 154.062.  NET RESOURCES.  (a)  The court shall calculate net resources for the purpose of determining child support liability as provided by this section.
    (b)  Resources include:

    (5)  all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected  disability pension benefits, as defined by 38 U.S.C. Section 101(17)….”


    “We conclude that granting VCS its requested relief would transform the adjudication of veterans’ benefits into a contentious, adversarial system—a system that Congress has actively legislated to preclude.  See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 323-24 (1985). The Due Process Clause does not demand such a system”.    case link

    LT(j.g.) Gregory Parsons USN, PDRL                  June 22, 2014

  9. Is there anyway to find out how many cases the inspector general of the v.a., have received against the v.a. and how they are handled. Regulations or how veterans can be assured that their case’s are being reviewed and how can the v.a. denigh claims, that are legit and the v.a. hides the veterans records of veterans that have been hurt while in the military. They use the excuse they have no record of the injury, when they actually did have the information and only tell the veterans this in an effort to discourage the veteran from following up on their case, expecily when the veteran has a traumatic brain injury. and make them think the v.a. is trying to help the veteran, when infact they are hiding the information in hopes the veteran will give up and let their claim lapse so they will not have to pay the back pay deserved when it is found out that the v.a. was lieing all the while and it found out they had all the needed information for a ligit claim all the while, when the veteran finely is able to get their disability, be told oh well you did not keep fighting your claim. The v.a. must remember that this is a voluntary military that is still fighting for their freedom and we do not fight for our own country to fight us when we come home and do everything they can to save a buck, so they can get their bonus for keeping cost down. How can veterans go back and get the disability they deserve back dated and obtain back pay for the injustice caused by the v.a.’s misdeeds.

    1. I am a veteran’s disability advocate and I tell all vets or newly discharged OEFs to get their own copies of their SMRs.

      Vets can get them and their 201 file by going to the NARA website and clicking on the vet record thing.

      VA WILL lie about them in order to delay and deny.

      You need a printer to download the bar coded thing that you need to sign, copy and sent to them if you use the on line SF 180 form at NARA.

      Newly discharged should make sure they carry a copy of their SMRs out with them and a contact list of their unit buddies.

      They might well need to get ‘buddy statements’ to prove their claim.

      The IG does not handle VA Claims issues as they dont have jurisdiction to do that. They do handle other types of complaints..their web site can direct you.

      I agree with everything you said about VA. I have been at a large veterans web site for almost 13 years, I am a hardcore claimant myself, and we have all “hadit” with the VA…I dont think I am allowed to post the link here but I gave you a clue …hadit…..we are all volunteers trying to help daily, to insure that vets and their dependents and survivors get their rightful compensation.

      I asked IG to investigate Buffalo RO many years ago because I said I have proof that they cant even read, but OIG quickly advised me they have no jurisdiction over that.
      They are still working on my June Hotline complaint.

      A “back date” or better EED might be available to you via CUE claim or a claim under 38 CFR 3.156.
      Lots of info on that where I work ,at the on line site.

      The VA is and always has been a national disgrace in my opinion, at many levels,taking advantage of the fact that vets are disabled
      and the good paying jobs they have at VA is solely due to the service and sacrifice of all of you great men and women.

      I wish Petraus could run that show.

  10. Great reporting Ben…..

    I have been a OGC PITA ( pain in their butt) since my FTCA case was settled,….asking them the same question over and over again every couples of years.

    Phoenix inspired me to again contact them by fax and I got a BS letter from Bradshaw at OGC, VA..

    So I responded by fax and told him I would take up my valid concerns with the IG and the FBI.( and I did and with Chairman Miller too)

    A week later the resignation of Will Gunn was announced…..there is far more to Phoenix than meets the eye.

    To try to wangle out of my FTCA wrongful death case they (OGC) tried to say ‘he might have died anyhow’ meaning my husband, 47 years old at death and a decorated Vietnam Combat vet , would have died with no VA liability, but I said BS to that .I won my wrongful death case but feared this is what they would pull on the Phoenix vet’s survivors because
    I got the impression those waiting lists contained many elderly vets.

    The survivors need to obtain independent medical opinions from real doctors, if they intend to pursue FTCA or 1151 claims against VA for these deaths.

    We dont live in a “Soylent Green” society and the Hippocratic Oath does not contain any medical treatment codicil that says, except for anyone over some specific age.

    I handled my FTCA case myself, and have a limited legal background, so I had no lawyer and no IMO doctor…but I studied enough medical stuff to know the evidence was there in the medical records from VA, and I proved their attempt to cover it all up as well. I don’t advise anyone else doing that though.


    Yeah it stinks…I just hung my wash outside here in beautiful farm country, NY wondering how long it would take to wash the VA’s dirty underwear at OGC………

    Keep up the GREAT reporting !

    1. I might have proof part of my medical records where deleted. Had a ENT appointment that I had issues with. I obtained a copy of my medical records which showed appointment.

      After complaining to the patient advocate that appointment and everything relating to it dissappeared.

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