Defending Veterans' Rights

(WASHINGTON, DC) - Veterans across the country are outraged and frustrated with the Department of Veterans Affairs’ (“VA”) improper denial of their benefits. Many vets are unsure of their rights and how to proceed in a legal action against the VA. Some are not even aware that they may bring a legal action against the VA for improperly denying their benefits.

Recently a vet asked me if he could use the System of Records regulations to sue the VA for denying his Vendor Information Pages ("VIP") application—resulting in his ineligibility to bid on VA contracts. I told him trying to sue the VA under those regulations was a bad idea. The System of Records regulations, found at 5 U.S.C. § 552, et seq., provides broad guidelines for agencies (including VA) to adhere to when collecting and maintaining records. These regulations were implemented for the benefit of the VA, not veterans. Using these procedures would likely alert the VA to a legal challenge making it harder for a vet to obtain relief. I almost never use procedures designed to allow the VA to act internally, unless they are a pre-requisite to bringing a federal action.

In my experience, the VA respects individual rights less than any other federal agency—it is a truly tyrannical agency. Time and time again, the VA improperly denies veteran’s benefits by deviating from mandatory regulations and using unreasonable grounds to deny veterans well deserved benefits. Many (not all) VA employees are careerist who have no concept of justice and in my experience will do almost anything to advance their careers, including, improperly denying a veteran’s benefits. It is essential that veterans learn how to protect themselves from mistreatment by the VA.

This US soldier served in Vietnam, Iraq, and Afghanistan.
2007 photo Jalalabad, Afghanistan, by Tim King Salem-News.com

There is a widespread culture at the VA, where VA employees are rewarded for taking advantage of veterans' “military mindset” of taking orders without question and using it against veterans to improperly deny veterans’ benefits with impunity. Such conduct is unconstitutional. Specifically, the Fifth Amendment of the United States Constitution prevents the government (which includes the VA) from depriving a person’s life, liberty, or property without due process of law. In many instances, veterans’ benefits constitute a constitutionally protected property interests that cannot be deprived by the VA without due process of law.

Due process of law requires the VA to provide veterans with notice of the exact grounds for denying a veteran’s benefits and also an opportunity for that veteran to respond to the stated grounds for denial. In many instances, the VA does not afford due process of law to veterans when making benefit determinations. A typical tactic used by the VA is to state unreasonable grounds to deny a veteran’s benefits. Most veterans don’t know how to respond to such a denial decision and lose their benefits. The VA counts on veterans walking away without a fight. Occasionally, a veteran will respond to a decision denying his or her benefits by explaining that the VA got it wrong and that he or she is eligible to receive benefits. In many of these cases, the VA will then use new grounds to deny the benefits—without providing notice of the new grounds to the veteran. This is a clear violation of due process of law and veterans are entitled to sue the VA for denying their constitutional rights. Unfortunately, most vets don't know how to sue the VA for unconstitutional conduct, and they wind up losing their benefits as a result. Veterans must arm themselves with legal knowledge to defend against the VA’s unconstitutional conduct. In the civilian world, legal knowledge is the equivalent to M16 rounds—don’t go into combat unarmed!

The Administrative Procedures Act ("APA"), found at 5 U.S.C. § 701 - 708, provides a powerful statutory remedy to challenge improper VA actions. In an APA action, the VA is a defendant in federal court, and a federal judge presides over the dispute. Although, the APA does not provide for compensatory damages, it allows the federal judge to vacate or reverse improper VA actions, grant benefit applications, etc. An APA action could be very useful in overturning a denial of a VIP application.

To obtain money damages from the VA, veterans have to sue the VA through the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. The FTCA is the only statute where the United States and its agencies (including the VA) have waived some of their sovereign immunity allowing individuals to sue them in federal court, under circumstances set forth in the FTCA. A veteran would use the FTCA, for example, to sue the VA for medical malpractice. In such an action, the VA, like any defendant, may use all available defenses including statute of limitations—so a veteran should act quickly upon learning of negligent conduct by the VA. I have used the FTCA to successfully sue the VA for medical malpractice, negligence, and intentional infliction of emotional distress. All of which are tort claims actionable under the FTCA.

Probably the most powerful lawsuit a veteran can initiate against VA officials is a Bivens action, from the Supreme Court case Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). In a Bivens action a veteran can sue VA officials, in their individual capacity, for violating their constitutional rights. In these actions, VA officials are liable for both money damages and punitive damages for violating a veteran’s constitutional rights. For example, a veteran may use a Bivens action to personally sue VA employees for depriving his or her benefits without due process of law. I have used a Bivens action to successfully sue dozens of VA officials for unconstitutionally denying veterans’ benefits. Senior VA officials, including Secretary Shinseki, may also be liable in these actions for the VA’s widespread culture of unconstitutional conduct towards veterans. I have witnessed firsthand a federal judge’s outrage at VA officials’ unconstitutional conduct—it was not pretty for these despotic government officials—whom I believe a more accurate description is a “traitor” or “enemy to veterans.”

Most disturbing, the VA’s unconstitutional policy was implemented to benefit VA employees at the expense of veterans! VA officials are rewarded with lavish bonuses, to deny as many veterans’ benefits as possible. Indeed, denying veterans’ benefits without due process of law is VA’s most effective methods to achieve their goal—getting themselves bonuses. Needless to say this policy is unconstitutional and outrageous! Not only is Secretary Shinseki currently being sued for it, but Congress is currently investigating him as well. Outrageously, Secretary Shinseki refuses to change VA’s unconstitutional culture and he refuses to respond to Congress’ demands—forcing Congress to subpoena Secretary Shinseki and create a website entitled “Trials in Transparency!”

Make no mistake, VA officials do not have veterans’ interests in mind—they are working for personal aggrandizement and enrichment—and they will unconstitutionally deny a veteran’s benefits until that veteran gives up or dies, and then bury their “mistakes”. It is essential that veterans learn how to protect their constitutional rights in order to defend against the VA’s unconstitutional policies.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE (I DON’T EVEN KNOW YOU). IF YOU ARE HAVING A PROBLEM WITH THE VA, CONTACT AN ATTORNEY IMMEDIATELY. YOU MAY CONTACT ME AT STORMS001@HOTMAIL.COM