Story 1 – http://www.bluejersey.com/showDiary.do?diaryId=4790
An Expatriated Texan over at BlueJersey.com has an interesting post about the disintegration of benefits for Veterans. He tells the story of a retired Marine who spent 32 years in the service but is unable to convince the VA to help with his back problems.
He goes on to blame President Bush for the erosion of benefits for Veterans saying that Bush sees Veterans as dead weight. They are unable to continue serving the country but are a constant cost for taxpayers. As more and more soldiers are coming home from Operations in Iraq and Afghanistan intending to depend on the services of the VA something must be done to ensure the promised services are available to the men and women defending this country.
Steve Rothman, is taking action on this issue and is fighting to reverse a Bush Administration decision denying honorable veterans needed services. Sign BlueJersey.com’s petition to support Rothman and others fight back for veterans rights.
Story 2 – http://www.fremontneb.com/articles/2007/05/17/news/news2.txt
Angie Newbold-Steffen is a mother in Omaha whose son was a Marine during the Persian Gulf War in 1990-91. In 1992 Todd Newbold was honorably discharged, but in 1996 he became ill. Initial test showed lesions on his brain and after six months of struggling to even get additional tests done his physicians at a VA hospital in Omaha suspected Todd had multiple sclerosis.
There was no treatment or follow-up, but fortunately, his body healed itself and he was able to function again. However, in 2004 his symptoms returned again, and in 2006 he was finally diagnosed with MS. This was 15 years after he was discharged from the Marines.
Unfortunately, the current law states that a Veteran must be diagnosed with MS within 7 years of discharge to receive service-connected status, so Todd is unable to receive benefits that will provide him the care he needs. His mother is lobbying the VA to change the limitations on discovering diseases that could potentially be service related. Senator Patty Murray, a Democrat from Washington, is reintroducing her proposal from 2005 that would extend the seven year window indefinitely.
Murray is receiving lots of support for her bill from veteran groups such as, MS Vets, Veteran of Foreign Wars, the Disabled American Veterans, the American Legion and the National Gulf War Resource Center as well as Newbold-Steffen herself.
Story 3 – http://www.marinecorpstimes.com/news/2007/05/military_vetsbenefits_hamsterwheel_070522w/
Representative John Hall (D – NY) is the chairman of the House Veterans’ Affairs disability assistance and memorial affairs subcommittee and is back in the news after hearing pleas from veterans to get their benefits claims through a never ending cycle of appeals. “This is not the desired result,” Hall said, referring to the bouncing of claims between the U.S. Court of Appeals for Veterans Claims, the Board of Veterans’ Appeals, and a federal court.
One single error in a claim can bounce a case back to one of the lower courts without looking at any other issues in the case. This extends the appeals process for years and many die while waiting for their appeal to be resolved. Under pressure from Congress, some retired judges were recalled and asked to handle some cases. Another change in procedure that could help speed the process along would be to decide all issues covering a case, but this would require a change in the federal law.
Judges overstepping. A veteran’s observation.
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How can state court judges waive away disability rights, and arbitrarily award as alimony a portion of a veteran’s disability rated compensation, determined on a case-by-case basis of a veteran’s whose disability rating that maybe, is factored in as critical? Judgment as if all disabilities are exactly the same? State court judges are overstepping those whose authority it belongs, in the practice of medicine, reevaluation, and rehabilitation of the veteran. And in doing so, ignorance of the law is no excuse, the law is quite clear, along with violating the canons of standard conduct for judges, violating “Authority for schedule for rating disabilities.” 38 USC 1155, “…, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.” Violating as well, 38 USC 5301, 42 USC 1408.
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As veterans’ all too well know, state court judges upon eyeing a veterans disability compensation, and as well as Social Security disability, as alimony, the standards of judicial jurisprudence, and laws are totally ignored. However, the following federal judge’s ruling supports the standard for which state court judges are governed.
State can’t deny kids Medicaid services, judge says.
http://www.ajc.com/search/content/metro/stories/2008/06/16/medicaid_children_lawsuit.html
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“The decision last week by U.S. District Judge Thomas W. Thrash pertains to the case of a 13-year-old developmentally disabled girl, Anna C. Moore of Danielsville in north Georgia. Her doctor prescribed 94 hours of private duty nursing care a week for her, but the state Department of Community Health approved only 84 hours.
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The Atlanta federal judge found the state does not have the discretion to deny funding for services prescribed by a treating physician. “The decision affirms that treating physicians, and not the state, should make those decisions,” said the girl’s attorney, Joshua Norris of the nonprofit Georgia Advocacy Office.”
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VETERANS LAW JOURNAL
http://74.125.45.104/search?q=cache:se1h9j9w5GMJ:www.cavcbar.net/Fall_2004.pdf+the+statutes+in+broadly+precluding+judicial+review+of+the+contents&hl=en&ct=clnk&cd=11&gl=us
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A Quarterly Publication of the Court of Appeals for Veterans Claims
Bar Association
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“Thus, the Federal Circuit found that “[t]he statutory scheme … consistently excludes from judicial review all content of the ratings schedule as well as the Secretary’s actions in adopting or revising that content.” Looking at the legislative history, the Federal Circuit pointed out that “[t]he language in the legislative history is not limited to the percentages of the disability ratings, as appellants argue, but matches the statutes in broadly precluding judicial review of the contents of the disability rating schedule in toto.”
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Is this what returning veterans from Iraq and Afghanistan need? Come home to fight another battle? What needs to be done? As explained above briefly, you know your fellow veterans’ are taking a beating from judges in state divorce court. Seizing veterans’ VA disability compensation. Being awarded as alimony. These judges, although recognizing federal law, somehow justify their interpretation of 38 USC 5301 and 10 USC 1408, and the Supremacy Clause as not being perhaps strong enough. Now comes, 38 USC 1155, “Authority for schedule for rating disabilities”, this is possibly just what the disabled veteran needs to overcome the state court’s opposition and uncertainty, with a law that leaves no room for ambiguity in it’s meaning.
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I don’t believe 1155 argument has ever been tried, or introduced in court. Now is the time to test this. Once introduced, the court will have to deal and rule on this. If there are any upcoming veterans’ court divorce proceedings, or even possibly pending cases, the introduction of 1155 could possibly be the one thing that will challenge and remove, hopefully forever, another burden from our disabled veterans, at an unfortunate time in their lives. I hope you found this advice worthwhile. Please post this notice on your bulletin board, email, or newsletter, there may be a veteran that can benefit from this advice Thank you.
VA prescriptions are dispensed in supplies of 90 days. However, for those unfamiliar with my claim, to explain these over-charges by the VA in violation of 38 USC 1722A, this example will be at it’s simplest and most understandable throughout my explanation, . Let’s say that you are at the VA, standing in line getting your prescription. The vet in front of you is getting the exact same prescription. She picks up her 30 day supply of 30 pills. Her copay for a 30 day supply of 30 pills is $8. You also are dispensed an $8 supply of 30 pills of the same exact prescription. Being that your condition is not as severe, your prescription requires you to split this 30 pill $8 supply. After you sit down at your kitchen table and split your 30 pill supply, now you have 60 split pills, a 2 month supply. But hold on! Except your co-payment cost for this 30 pill, $8 supply, now that it has been split, has increased. It now carries a co-payment of $16. This explains how veterans’ has been overcharged by the VA since 2002. Do you see anything wrong? You should!
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Counsel Taylor of the Board of Veterans’ Appeals references remarks from the July 16, 2001 Federal Register. “Also, as we stated in the proposal, under 38 U.S.C. 1722A, VA may not require a veteran to pay an amount in excess of the actual cost of the medication and the pharmacy administrative costs related to the dispensing of the medication.”
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Counsel Taylor citing the Federal register, 1722A clearly pertains to VA’s cost in dispensing. Dispensing! Where there is no difference in the prescription, supply amount, handling, or dispensing time, a 30 pill supply is dispensed, with a $16 co-payment? Interestingly, in the same exact manner as all 30-day, 30 pill $8 supplies are dispensed, as explained in the Federal Register! No splitting of pills was involved in the dispensing procedure. However, of an exact same $8 dispensed supply, automatically these ‘standard’ 30-day $8 co-payment whole pill supplies are increased 100% (2 month split pill supply).
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Their is no difference! No difference in dispensing two supplies that are exactly alike in prescription and supply, or to the cost related to dispensing! However, counsel Taylor is emphatic in making the point, conclusive, that it clearly pertains to the cost in dispensing? Or is it the ISSUE, the ” 30-day or less supply”? For some unknown reason, which counsel Taylor did not elaborate on, a second exact duplicate supply increases, double the co-pay cost? Although, counsel Taylor may have tried, but failed to explain.
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“38 USC 1722A; (a)(1) Subject to paragraph (2), the Secretary shall require a veteran to pay the United States $8 for each 30-day supply of medication furnished such veteran under this chapter on an outpatient basis for the treatment of a non-service-connected disability or condition. If the amount supplied is less than a 30-day supply, the amount of the charge may not be reduced.” Which then also means, if the amount is not less than 30-day supplies, as described in paragraph (1) the Secretary may not require a veteran to pay an amount in excess of the cost for medication provided to a veteran as described in paragraph (2).
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Citing my argument, BVA’s counsel Taylor, quotes inaccurately. An intentional selection and placing of the word, “of” in order to confuse, and again, to mislead. 38 USC 1722A “Copayment for medications. Paragraph (2) The Secretary may not require a veteran to pay an amount in excess of the cost of the Secretary for medication as described in paragraph (1).”
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The correct reading is, “(2) The Secretary may not require a veteran to pay an amount in excess of the cost to the Secretary for medication described in paragraph (1).”
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“The appellant has not cited to, and the Board is unable to find any authority allowing for a deviation from the standard copayment.” The Board is right! I too, am unable to find that authority.
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Counsel Taylor in an effort in re-enforcing the Board’s position cites “(b) The Secretary, pursuant to regulations which the Secretary shall prescribe may-…(1) increase the co-payment amount in effect under subsection (a);..” Pursuant to regulations? Means according to the law! To regulations as written. Where is this regulation mentioned in the Code of Federal Regulations, this “standard” co-payment he talks about, for $16 split pill supplies? Where, counsel Taylor, does it mention increased co-payment cost for one of two (2) exact duplicate 30-day prescription supplies? Other than my example, where is it mentioned 15 pills is less than 30-day supply? “The Administrative Procedure Act requires that agencies publish administrative regulations in the Federal register before they can be legally effective.” Where?
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Due to the BVA losing the original claim, a rebuilt file was sent to the United States Court of Appeals for Veterans’ Claims. Because they refused to look at a rebuilt file, it was sent back on remand to the Board of veterans’ Appeals. This process took well over a year just to return the file. A practice of deny, lose, stall, delay, until mission accomplished using a rebuilt file! Overcharging veterans since March 2002.
DALLAS, Jan. 13, 2009 — Fewer veterans filled their prescriptions for cholesterol-lowering drugs after an increase in co-payment costs for prescription drugs, researchers report in Circulation: Journal of the American Heart Association.
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The question of excessive copay for VA split pill prescriptions has been settled. Even though the VA mentions their concern for “reasonable charges.., billings practices closer to industry standard charge structures and billing practices”, and the question of “actual cost of dispensing” , veterans will continue to be overcharged for spilt pill prescriptions. The United States Court of Appeals for Veterans’ Claims has made their ruling. A two (2) to one (1) decision. Judge Hagel, dissented, and accordingly, found the ruling, “..arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” and filed a separate opinion. University of Washington School of Law professor Thomas Andrews agrees, “Overall, I am sympathetic to the Court and the VA’s desire to avoid doing a cost analysis on every single drug but find Judge Hagel to be legally more persuasive.” Judge Hagels comments follow.
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS.
NO. 09-112 (Decided April 11, 2011)
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“HAGEL, Judge, joins, concurring in part and dissenting in part: I concur with the majority’s conclusion that the plain and unambiguous language of 38 U.S.C. § 1722A(a)(1) requires a veteran to pay a full copayment for a 30-day supply of medication, without regard to the dosage or number of pills prescribed to the veteran. I write separately, however, to express my disagreement with the majority’s conclusion that the phrase “cost to the Secretary for medication,” as used in section 1722A(a)(2), is susceptible to more than one interpretation.”
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“When a pure question of law, such as the interpretation of a statute, is at issue, the Court
reviews the conclusions of the Board de novo, without deference. Smith v. Gober, 14 Vet.App. 227, 230 (2000). As explained above, after reviewing the language of section 1722A, I would conclude that the plain and unambiguous language of subsection (a)(2) prohibits the Secretary from requiring a veteran to pay an amount in excess of the cost to the Secretary for each 30-day supply of medication furnished to him or her, without regard to the administrative costs incurred by the Secretary in actually dispensing such medication. I would therefore conclude that the Board’s interpretation of that provision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Kent v. Principi, 389 F.3d 1380, 1384 (2004) (holding that the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” standard of review “contemplates de novo review of questions of law”). Accordingly, I would set aside the Board’s December 2008 decision to the extent that it concluded that the appellant’s copayment was not excessive under section 1722A(a)(2) and would remand the matter for further development and readjudication consistent with a proper interpretation of section 1722A(a)(2).
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Lastly, I understand that some might say that the interpretation that I express would place
an unnecessary accounting burden on VA. The calculation that I believe the statute requires VA to make in these instances is, however, routinely made up front by private pharmacies when determining the profit margin sought on each drug dispensed to their customers. Thus, I do not believe that such a calculation places an unreasonable burden on VA. As a result, I do not believe that my interpretation of section 1722A produces an absurd result”.