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Vets Lawsuit against the VA and Mandatory Funding

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As most vets know by now, the Veterans Administration (VA) has requested that the lawsuit initiated by Veterans for Common Sense (VCS) be summarily dismissed. The VA is claiming that even IF veterans are being mistreated, mislead, lied to and taken advantage of, that VCS has "no standing" to represent such a broad base of vets since not all veterans have been abused or mistreated equally. (And I am trying to be charitable to the VA. I imagine, though, that had the VA simply killed off all of us then the lawsuit could proceed.)

 They further issued that only the Court of Appeals for Veterans Claims (“CAVC”), and the Federal Circuit, by law, are the only venues where veterans can air greivances against the VA.

 Of course, most veterans know how well that works. In 1998 Chief Judge Frank Nebeker (CAVC) reported to Congress that the court has absolutly no power to force the VA to follow the court's orders. And he added that most VA's will carry out the courts orders only when they felt they had to.

 The fact that - according to Knight-Ridder News Service - thousands of veterans have died while waiting for their cases to even be heard by the court, would seem irrelevant.

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 In July I wrote a piece titled "VCS SUES THE VA BUT THE DECK IS STACKED" in which I stated the lawsuit would be kicked out of court because of Title 38 United States Code Section 511, which vests all power over the VA into the hands of the VA Secretary. The law specifically creates a dictatorship that has complete control over every aspect of the VA including when or if you recieve medical care or benefits.  As unbelievable as it sounds, that is exactly what the VA lawyers are arguing.

38 USC Sec 511: (b)), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

 Here are a few excerpts from the VA's written position on why vets have no rights:

 "Congress has also expressly directed with 38 U.S.C. § 511(a)6 that determinations by VA that affect veterans’ benefits are not reviewable in district court:..."

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 "The scope of VA’s mandate reaches only ‘to the extent and in the amount provided in advance in appropriations Acts for these purposes’ [and] creates no such expectation [that veterans are entitled to care].”
"It is “axiomatic that the United States may not be sued without its consent..."

 "Thus, even if plaintiffs could bring their claims concerning delay of health benefits and a related VA regulation to this Court, those claims fail as a matter of law and should be dismissed..."

 Let's assume for the moment that the lawyers for the VA are absolutely correct in their interpretation of the law (but not for too long because that's just scary!). This puts vets and Congress into an odd paradox; namely whether to mandate funding for the VA.

 As an issue all to itself I support mandatory funding of the VA. Sounds like a great idea, right? Pass a law saying it's mandatory to fully fund the VA. No more shortfall budgeting! Wouldn't that be great! But has anyone else seen the flaw with this plan?

 If Congress votes in mandatory funding for the VA and doesn't simultaneously repeal Title 38 Section 511, then Congress will loose any and all oversight of the VA. Right now the only real means of control the Congress has over the VA is their "power over the purse."

 If you think 600,000 backlogged benefits claims and massive wait times for appointments are bad (and they are), wait until the VA can ignore Congress completely. That's exactly what could happen when a well-meaning but uninformed Congress tries to do the right thing and mandate funding.

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 So if you have a Congressperson that will listen to you, please ask them to work toward repealing Title 38 USC Section 511 before they pass the mandatory funding bill they are currently considering.




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USAF 1986 - 1991

Disabled Vet

Mensa Member 1992

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