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Posted by haiki
on 10/28/2008, 6:38 am, in reply to "Disability Alimony Award, A veteran's observation"
172.129.8.158
--Previous Message--
: How can state court judges arbitrarily award
: as alimony a portion of a veteran’s
: disability rated compensation, and waive
: away the disability rights of veteran’s
: whose disability rating that maybe
: determined and 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, the law is quite
: clear, violating the canons of standard
: conduct for judges, along with violations of
: 38 USC 1155, 38 USC 5301, 42 USC 1408
:
:
: --Previous Message--
: I've followed this case and although I am
: sypathetic to it I also see the reality of
: it. If one is married and subsisting off VA
: disability with his or her spouse it seems
: equitable for her to share in that benefit
: even after divorce as long as she is
: unremarried. Disabled Veterans have no
: problem with spouses sharing health benefits
: while married etc. Of course it's all
: nonsense anyway, I don't see how even single
: veterans can exist on a disabilty pension
: much less dividing it with an ex. Life sucks
: and gets worse for the disabled.There's just
: no easy way for them to exist. I personally
: think we owe them more, but I don't make the
: laws for this country.
: Tom; This is a followup to my "How can state court judges..." and perhaps help you in court.
: 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 law 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 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.
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