The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 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. Title 38 U. S. C. § 511. Decisions of the Secretary; finality
This single act of the Congress has removed the Department of Veterans Affairs out from under any congressional control and the Congress has no supervisory authority over it. The United States Congress can pass all of the legislation it wants and as long as 511 remains on the books the Department of Veterans Affairs is authorized by this Section to totally ignore any part thereof as well as the law in it?s entirety if it so desires.
An example of this is found in Sections 1110 and 1131 of Title 38.
§ 1110. Basic entitlement
For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a
result of the veteran's own willful misconduct or abuse of alcohol or drugs.
§ 1131. Basic entitlement
For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs.
Both of these laws clearly state that our disabilities resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty and which are not due to our own willful misconduct are compensatable from the period of service in which said injury or disease was incurred. Or a Veteran's date of discharge. These are both valid Laws which have been on the books for the past 60 or so years and yet the DVA chooses to ignore them both in their entirety. But then what about the Federal Courts? Surely the DVA must abide by the Federal Court rulings?
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 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 , whether by an action in the nature of mandamus or otherwise. Title 38 U. S. C. § 511(a). This even encludes the Supreme Court of the United States as we will see in the following Supreme Court decision in Jesse Brown v. Fred P Gardner and how the DVA continues to deny Veterans claims inspite of this Supreme Court Ruling.
The Supreme Court of the United States has told the Department of Veterans Affairs that where the Laws are plane and clear that it must abide by them as they are written without DVA interpretation and regardless of the DVA?s regulations age or time in existence.
" Despite the absence from the statutory language of so much as a word about fault [n.2] on the part of the VA, the Government proposes two interpretations in attempting to reveal a fault requirement implicit in the text of §1151, the first being that fault inheres in the concept of compensable "injury." We think that no such inference can be drawn in this instance, however. Even though "injury" can of course carry a fault connotation, see Webster's New International Dictionary 1280 (2d ed. 1957) (an "actionable wrong"), it just as certainly need not do so, see ibid. ("[d]amage or hurt done to or suffered by a person or thing"). The most, then, that the Government could claim on the basis of this term is the existence of an ambiguity to be resolved in favor of a fault requirement (assuming that such a resolution would be possible after applying the rule that interpretive doubt is to be resolved in the veteran's favor, see King v. St. Vincent's Hosp., 502 U.S. 215, 220-221, n.9 (1991)). But the Government cannot plausibly make even this claim here. Ambiguity is a creature not of definitional possibilities but of statutory context, see id., at 221 ("[T]he meaning of statutory language, plain or not, depends on context"), and this context negates a fault reading. Section 1151 provides compensability not only for an "injury," but for an "aggravation of an injury" as well. "Injury" as used in this latter phrase refers to a condition prior to the treatment in question, and hence cannot carry with it any suggestion of fault attributable to the VA in causing it. Since there is a presumption that a given term is used to mean the same thing throughout a statute, Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932), a presumption surely at its most vigorous when a term is repeated within a given sentence, it is virtually impossible to read "injury" as laden with fault in the sentence quoted. "
Here the Supreme Court blasts the DVA?s forcing a Veteran to prove DVA fault for an injury or the aggravation of a preexisting condition while a patient at a DVA health care facility. This same reasoning by the High Court is also applicable to the DVA?s forcing Veterans to prove service connection as we will see later on in this historic Supreme Court decision. Please note the use of the words "as a result of", "injuries suffered", "aggravation of a preexisting condition", and "veteran's own willful misconduct or abuse of alcohol or drugs". They can also be found in Sections 1110 and 1131 of Title 38.
"Textual cross reference confirms this conclusion. "Injury" is employed elsewhere in the veterans' benefits statutes as an instance of the neutral term "disability," appearing within a series whose other terms exemplifydebility free from any fault connotation. See 38 U.S.C. § 1701(1) (1988 ed., Supp. V) ("The term `disability' means a disease, injury, or other physical or mental defect"). The serial treatment thus indicates that the same fault free sense should be attributed to the term "injury" itself. Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961) ("[A] word is known by the company it keeps")."
Here comes the connection made by the Supreme Court. The key word here is "Compare".
"Moreover, in analogous statutes dealing with service connected injuries the term "injury" is again used without any suggestion of fault, as the administrative regulation applicable to these statutes confirms by its failure to impose any fault requirement. Compare 38 U.S.C. § 1110 (1988 ed., Supp. V) ("disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, . . . during a period of war," is compensable) and 38 U.S.C. § 1131 (1988 ed., Supp. V) ("disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, . . . during other than a period of war," is compensable), with 38 CFR § 3.310(a) (1993) ("Disability which is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition")."
There it is in plane old fashioned black and white. The Supreme Court ruled that DVA fault like service connection is under the law and need not be proven. That means that exposure to Agent Orange, Gulf War Sickness, Hepatitis C, Parasite Infestations, Skin Fungus, etc. are presumed service connected under the law and that the DVA must pay each and every person exposed to them a service connected disability compensation. But wait there is more. The High Court is not done with the DVA yet.
"In a second attempt to impose a VA fault requirement, the Government suggests that the "as a result of " language of §1151 signifies a proximate cause requirement that incorporates a fault test. Once again, we find the suggestion implausible. This language is naturally read simply to impose the requirement of a causal connection between the "injury" or "aggravation of an injury" and "hospitalization, medical or surgical treatment, or the pursuit of a course of vocational treatment." Assuming that the connection is limited to proximate causation so as to narrow the class of compensable cases, that narrowing occurs by eliminating remote consequences, not by requiring a demonstration of fault. [n.3] See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §42 (5th ed. 1984). The eccentricity of reading a fault requirement into the "result of" language is underscored by the incongruity of applying it to the fourth category for which compensation is available under §1151, cases of injury resulting from a veteran's "pursuit of vocational rehabilitation." If Congress had meant to require a showing of VA fault, it would have been odd to refer to "the pursuit [by the veteran] of vocational rehabilitation" rather than to "the provision [by the VA] of vocational rehabilitation."
Please keep in mind that once the Supreme Court used Sections 1110 and 1131 as a basis for their decision this case went from a solely DVA fault case for injuries received while a patient in a DVA medical facility to a service connection ruling as well. And everywhere the High Court uses the term "fault" the words "service connection" can and should be substituted. In this instance they are by the Courts own actions considered one and the same. Likewise §1151, §1110, and §1131 are all now interchangeable.
"The poor fit of this language with any implicit requirement of VA fault is made all the more obvious by the statute's express treatment of a claimant's fault. The same sentence of §1151 that contains the terms "injury" and "as a result of" restricts compensation to those whose additional disability was not the result of their "own willful misconduct." This reference to claimant's fault in a statute keeping silent about any fault on the VA's part invokes the rule that "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted). Without some mention of the VA's fault, it would be unreasonable to read the text of §1151 as imposing a burden of demonstrating it upon seeking compensation for a further disability.
In sum, the text and reasonable inferences from it give a clear answer against the Government, and that, as we have said, is " `the end of the matter.' " Good Samaritan Hosp. v. Shalala, 508 U. S. ___, ___ (1993) (slip op., at 7) (quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)). Thus this clear textually grounded conclusion in Gardner's favor is fatal to the remaining principal arguments advanced against it. "
It is interesting to note at this point that there are no dissenting opinions in this case. This case was a unanimous decision by all of the Supreme Court Judges.
"The Government contends that Congress ratified the VA's practice of requiring a showing of fault when it reenacted the predecessor of §1151 in 1934, or, alternatively, that Congress's legislative silence as to the VA's regulatory practice over the last 60 years serves as an implicit endorsement of its fault based policy. (Get ready here it comes)There is an obvious trump to the reenactment argument, however, in the rule that "[w]here the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction. Demarest v. Manspeaker, 498 U.S. 184, 190 (1991). See also Massachusetts Trustees of Easter Gas & Fuel Associates v. United States, 377 U.S. 235, 241-242 (1964) (congressional reenactment has no interpretive effect where regulations clearly contradict requirements of statute). But even without this sensible rule, the reenactment would not carry the day. Setting aside the disputed question whether the VA used a fault rule in 1934, [n.4] the record of congressional discussion preceding reenactment makes no reference to the VA regulation, and there is no other evidence to suggest that Congress was even aware of the VA's interpretive position. "In such circumstances we consider the . . . re enactment to be without significance." United States v. Calamaro, 354 U.S. 351, 359 (1957). "
Just when you would think the High Court was through chewing out the Department of Veterans Affairs they slam a round right into her bow.
"Congress's post-1934 legislative silence on the VA's fault approach to §1151 is likewise unavailing to the Government. As we have recently made clear, congressional silence " `lacks persuasive significance,' " Central Bank of Denver, N.A. v. First Interstate Bank of Denver, 511 U. S. ___, ___ (1994) (slip op., at 22-23) (quoting Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650 (1990)), particularly where administrative regulations are inconsistent with the controlling statute, see Patterson v. McLean Credit Union, 491 U.S. 164, 175, n. 1 (1989) ("Congressional inaction cannot amend a duly enacted statute"). See also Zuber v. Allen, 396 U.S. 168, 185-186, n. 21 (1969) ("The verdict of quiescent years cannot be invoked to baptize a statutory gloss that is otherwise impermissible. . . . Congressional inaction frequently betokens unawareness, preoccupation, or paralysis")."
Then in a final shot. The High Court sent a torpedo directly into the DVA?s midship sinking any chances the DVA might have in recovering any part of this case.
"Finally, we dispose of the Government's argument that the VA's regulatory interpretation of §1151 deserves judicial deference due to its undisturbed endurance for 60 years. A regulation's age is no antidote to clear inconsistency with a statute, and the fact, again, that §3.358(c)(3) flies against the plain language of the statutory text, exempts courts from any obligation to defer to it. Dole v. United Steelworkers of America, 494 U.S. 26, 42-43 (1990); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., supra, at 842-843. But even if this were a close case, where consistent application and age can enhance the force of administrative interpretation, see Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978), the Government's position would suffer from the further factual embarrassment that Congress established no judicial review for VA decisions until 1988, only then removing the VA from what one congressional Report spoke of as the agency's "splendid isolation." H. R. Rep. No. 100-963, pt. 1, p. 10 (1988). As the Court of Appeals for the Federal Circuit aptly stated, "[m]any VA regulations have aged nicely simply because Congress took so long to provide for judicial review. The length of such regulations' unscrutinized and unscrutinizable existence" could not alone, therefore, enhance any claim to deference. 5 F. 3d, at 1463-1464. "
So then, if this is a true Supreme Court Decision, then why isn?t the DVA abiding by this High Court decision and granting Veterans their just disability compensation for their exposure to Agent Orange, Gulf War Syndrome, chronic back pain, deafness, degenerative nerve disease, degenerative spine disease, and other combat related diseases and conditions? The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 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. Title 38 U. S. C. § 511. Decisions of the Secretary; finality
To start with it should be noted that the Supreme Court does not even recognize the Federal Court of Appeals for Veterans Claims as a true Federal Court. In this decision the High Court completely jumped over this Court from the Board of Veterans Appeals to the Federal Court of Appeals thus leaving out the Federal Court of Appeals for Veterans Claims completely as if it does not exist. As demonstrated by the lack of mention of this court by the United States Supreme Court the Federal Courtof Appeals for Veterans Claims is not an Article III Federal Court and it lacks the same authority as a true Federal Court. It is in fact another Article I hearing board with a fancy title and in essence it is nothing more or less than another extension of the Department of Veterans Affairs.
Finally any person who has ever attempted to file a claim in a Federal District Court against the Department of Veterans Affairs knows that the Department always claims "Sovereign Immunity" from prosecution stating that their actions or lack thereof are done under the "Color of Federal Law" and that under Section 511(a) the Federal Courts "lack subject matter jurisdiction".
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. Title 38 U. S. C. § 511(a).
This Section of Title 38 must be by the Congress. Every Veteran must be given their Right to appeal any adverse decision by a DVA Adjudications Officers at the Regional Offices directly to a Federal District Court. When this happens the case load within the DVA Adjudications Offices will drop as well as the need for additional litigation of Veterans claims.
We would be able to hire our own attorneys from the beginning of the filing process and the Court decisions would by natural process reduce the number of Veterans cases heard by the Federal Courts to those where the Laws are either not clear and require a judicial interpretation, are unconstitutional or are when 2 separate laws are in conflict with each other.
In other words repealing Section 511 will grant us our Right to proper counsel and open up the Federal Court system to us. The Government will save billions of dollars a year that is now being spent on wages for the Board Members at the Board of Veterans Appeals, Judges to sit on the Federal Court of Appeals for Veterans Claims, and unnecessary office space and equipment. It will also mean that instead of taking up to 20 or 30 years to settle a Veteran?s claim a Veteran's claim would be settled in a matter of months. One single Court ruling could very well eliminate up to 1,000 cases waiting to be reviewed by the courts if not more. Thus deminishing the case load the Courts would have to hear.
America's Disabled Veterans are the only members of our society who are denied their Right to Due Process of Law. We need your help in getting this unconstitutional Law REPEALED.
