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allan
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Posts posted by allan
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CHRONIC EFFECTS
Excerpt:... of PB concomitantly withexposure to other chemicals, such as a low-level nerve agents, pesticides, orsolvents. (See Chapter Nine, “Interactions Between PB and Other Exposures.”)For ... Studies have evaluated effects of exposure to AChE inhibitors (predominantlyOP pesticides and nerve agents) on the EEG. Acute and chronic EEG alterationshave been reported in several ...
http://www.rand.org/pubs/monograph_reports...18.2.chap14.pdf
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Chapter Five: Nerve agents
http://www.rand.org/pubs/monograph_reports...18.5.chap5.html
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VA claims adjusters that continue to process claims according to law, shouldn't have anything to worry about or sweat over.
Those who spend their day cheating disabled veterans, need to be in jail with the other con artists if you ask me. So some of you, need to worry alot.
ERROR's? Get real.
Try CRIMINAL activity to defraud disabled veterans.
That has a different sound to it when you present evidence to, TODAYS jury, don't you think?
Times, they are a changin!
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>WE NEED FORM VETERAN ELECTION GROUPS FOR EVERY STATE
Hello Jay,
I generally vote the candidate. Whether they be Republican, Democrat or Independent.
One qualification requires the candidate to actively work for the care of our troops & veterans.
If they don't, whatever else they do doesn't matter. They won't receive my vote, nor would I support their campaign.
If a vet can afford it, I say support as many vet groups as you can. But not if their intentions are to just collect membership fees.
Maybe we can get a tax placed on corporate profits, say like haliburton or exon, to help pay for benefits? If we're going to supply their security while they profit billions, it seems fittin to me they pay a death & injury tax to support veterans benefits. 30% sounds good to me.
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>our AO list-in my opinion- does NOT reflect all problems it caused in serviceprsonnel and civilians.
Hello Berta,
they don't want anyone to know how toxic it actually is. It alters DNA !
I've never received an answer to, "what does it alter too, generations down the line"? I just get stared at.
When they should learn all they can to develop ways to treat the effects, they stick their heads in the sand & watch their troops & their families suffer & die.
Weapons of mass destruction"? Thats exactly what it is.
What time tommarow night?
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fwd from: Colonel Dan
At U.S. Military Hospitals, 'Everybody Is Overworked'
(USA Today, June 5, 2007, Pg. 1)
Months after the problems revealed at Walter Reed Army Medical Center caused
a massive shake-up throughout the military's system of healthcare, the
service is still struggling to find enough doctors and nurses to care for
troops and their families. The Army operates 36 medical facilities
worldwide. For the past two years, more than half have failed to meet
Pentagon standards for providing a physician within seven days for routine
medical care. And the Army has been forced to spend more money sending
military families to doctors in nearby communities.
Give Vets More Mental Healthcare Funds, Panels Urge
(Miami Herald, June 5, 2007)
Saying they are "very concerned" that the Department of Veterans Affairs is
not spending enough on mental health treatment, congressional members of
both parties are pushing for more money in next year's VA budget. While the
budget and appropriations plan for fiscal 2008 is in the works and will not
be settled for months, veterans committee members in the House and Senate
say more needs to be done to reach out and treat soldiers returning from
Iraq and Afghanistan.
Ex-FW Congressman Faces Host Of Problems As Incoming Army Secretary
(Dallas Morning News, June 4, 2007, Pg. 1)
The Army is mired in Iraq. Combat tours are growing longer. Equipment is
wearing out fast. And the last civilian Army chief got ousted over shoddy
conditions at the famed Walter Reed hospital. Into the line of fire comes
Pete Geren, a former Democratic congressman from Fort Worth who has toiled
at the Pentagon since 2001 and is now President Bush's pick to serve as
secretary of the Army. Soft-spoken, methodical, unflappable, Geren takes
each challenge in stride. He has worn two hats since early March, as
undersecretary of the Army and as acting secretary.
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Fwd:
PN Challenge Response
Many of your were hoping we would get a positive response from our Challenge
on Peripheral Neuropathy. I would suggest it is all in vain, as neither
Congress nor the NAS/IOM want to hear the issues.
_http://www.2ndbattalion94thartillery.com/Chas/PNChallengeResponse.htm_'>http://www.2ndbattalion94thartillery.com/Chas/PNChallengeResponse.htm_
(http://www.2ndbattalion94thartillery.com/Chas/PNChallengeResponse.htm)
We tried anyway. We can take pride in that effort.
Kelley
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Section A. Eligibility for Hospital, Nursing Home, Domiciliary, and Medical Care
http://www.warms.vba.va.gov/admin21/m21_1/...7/ch07_seca.doc
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Section C. Adjusting Awards Involving Aid & Attendance (A&A) Allowance
http://www.warms.vba.va.gov/admin21/m21_1/...6/ch06_secc.doc
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Section A. Information Exchange Between VA Regional Offices (ROs) and Medical Facilities
http://www.warms.vba.va.gov/admin21/m21_1/...6/ch06_seca.doc
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Fibromyalgia & Chronic Fatigue Syndrome
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Follow-up, New Website, AO in Milk in Nam, New Zealand Media Report,
http://www.2ndbattalion94thartillery.com/Chas/Followup.htm
9/11 Toxic Chemical Victim to be added to the list of 9/11 Victims
Follow up on decontamination of AO drums or anything with AO
Follow up on AO and Benzene Posting - reference DoD decontamination procedures.
I don't know if this would help or not. Back in the early nineties, I was working for a toxic clean-up corporation. One day I was asked if I knew anything about AO. It seems there was a spill or something and the Company (Magnum Tank Service, Pompano Beach FL) was thinking about taking the job. However, I was later informed that the reason they (Magnum) did not take the job was that had they taken the job the Tankers that would have been used would have to be destroyed, as there was NO KNOWN way to clean the Tankers out. Once used for AO, that is all they could ever be used.
Thanks Nick
I wonder what the Fort Detrick instructions were. If anyone has a copy, please let me know so we can post it.
“On October 23, 1969, an urgent message was sent from Fort Detrick, Maryland, to MACV concerning cleaning of drums containing herbicides. The message provided detailed instructions on how to clean the drums and warned that it was particularly important to clean Agent Orange drums.”
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New website to me on Vietnam Archives, including AO.
Thanks to John, there is a searchable website by the Red Raiders of Texas Tech University.
If you go to http://www.vietnam.ttu.edu/vietnamarchive/...agentorange.htm
Then select on the left side Reference Information and then slide over to Reference Databases.
When that loads on the left, you can select Search the Virtual Vietnam Archives.
When that loads you can type in search criteria such as “Peripheral Neuropathy” – of course hit search and then display results. Just on, Neuropathy it came up with 479 hits in their archive on AO. Yet VA, DoD, and NAS/IOM say it is not associated.
Of course the VA Cosa Nostra will probably pay them a visit and shut it down.
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From Gibbo in Australia -
If you drank milk in 'Nam between 1965 and 1972 you ingested Agent Orange and a variety of other herbicide residues.
As you may know, the Foremost Milk Company (now out of business in the US) based in Los Angeles held the DOD contract for the US military's milk supply in So'east Asia. Before and after shipping packaged 'finished milk' in its distinctive orange/white containers, Foremost shipped a milk concentrate to 'Nam which was to be mixed with water. Unfortunately, the water used was taken from the Saigon River that, DOD belatedly learned, was infested with herbicide drainage. Foremost USA went defunct several years ago but Foremost Vietnam is still in operation.
Milk became an essential export by the USG to Vietnam after 1967 after doctors in the States discovered they were treating large numbers of Vietnam vets suffering from gastroenteritis and other colon inflammatory illnesses due to lack of the enzyme used by the intestines to digest milk. If a person continues to drink milk, their body will continue to produce the enzyme (kind of like a wet nurse who continues to manufacture breast milk for decades after giving birth as long as her milk continues to be suckled.)
However, if a person stops drinking milk their body stops producing the enzyme. Because milk was not as available in 'Nam during America's early deployment thousands of Americans assigned to Vietnam gradually stopped producing the enzyme... but when they returned back to The World the first thing they consumed in large quantities was milk... which made them sick because they could no longer adequately digest it.
As a result, Foremost was contracted to ensure there was always a large supply of milk for GI's to consume. Unfortunately, the high demand resulted in its Vietnam production being mixed with tainted water. Hence, many American's who served in Vietnam but had no direct contact with herbicide distribution or deployment contracted the chemicals through the milk they drank.
REFERENCES:
1. Herbicides Used in Vietnam
http://members.aol.com/warlibrary/vwhr1.htm
2. Foremost Vietnam
http://www.asemconnectvietnam.gov.vn/Local...5&DnID=7503
I think the NAS/IOM and our government are the only ones left in the world that deny most Vietnam Veterans came home with gastro problems – such as intolerance to milk and milk products – heavy red meats, or anything greasy. I know that I could no longer eat the things I grew up on after being gone for 365 days and many I have talked with said the same thing.
The University of Fl I think it was around 70 or 71 did a study on why so many Veterans were coming home with this disorder. My mother was the one that pointed it out to me since she knew then, something was wrong. I just passed it off as something you had to live with. Most of us were diagnosed from anything from IBS, or a spastic this, or a spastic that which meant the doctors had no idea. I had three lower GI series and two upper GI series with a stay in the hospital to try and find out what was wrong. Of course, the VA says no no on that since the doctor I was treated by and the hospital, which was a humanitarian hospital out of business now (since hospitals are big business these days) decades ago and I have no records. I have testimony of at least three folks in the family and one friend he served with the 25th that indicate I was treated in the hospital and had severe gastro problems after coming home.
It was only after I put it together and had the appropriate tests run did it verify the damages.
Now that was probably the first sign we had a toxic chemical issue “immune system issues” but the testing that was not available then and or course our truthful government denying all of the toxic chemical issues with VA in the lead as the denier of facts working with DoW and Monsanto. Moreover, lets add in the EPA at that time also – when some EPA scientists blew the whistle, then they were punished - not the chemical companies for their lies in court.
Had the proper testing been done then they would have found the small intestine celi were burnt to hell and back. The tips of the celi make the enzyme for the milk double sugar. If it is damaged then you no longer produce the enzyme for milk. In addition, it can be associated to a lack of absorption of essential minerals and vitamins such as loss of B12 another noted AO association. That by the way, can also be associated with neurological damages?
--------------------------------------------------------------------------------
New Zealand media report -
American Vets, while our government has been full of malfeasance, collaborations, and conspiracies as criminal as it is; the New Zealand Vets have been treated even worse by their government and their citizenry, if one can imagine that.
Big Vietnam claim to Waitangi Tribunal
By KRISTIAN SOUTH - Sunday News | Sunday, 3 June 2007
EXCLUSIVE
THE former head of the Anglican Church in New Zealand has lodged a $170 million Waitangi Tribunal claim on behalf of Kiwi Vietnam War veterans.
Bishop Te Whakahuihui Vercoe, who stood down as Archbishop of Aotearoa last year for health reasons, said he laid the claim because veterans' exposure to Agent Orange had ruined Maori bloodlines.
"About 60 percent of those who served in Vietnam were Maori," Bishop Vercoe told Sunday News from his Rotorua home.
"My goal is to protect our children and wives, because if the Government does not care about them, who will? And what would become of those children born without limbs?
"This is about improving the amount that has been allotted to the widows and families of veterans."
Agent Orange was used to kill foliage which provided cover for the Viet Cong in the war. It also destroyed the health of American troops and their allies, including New Zealand troops.
A Sunday News investigation last year uncovered medical tests which showed the defoliant caused genetic damage in up to 3500 Kiwi vets. The DNA damage was suspected to be so bad it could affect multiple generations with cancer, spina bifida and a host of other genetic diseases.
Bishop Vercoe's $170m Waitangi Tribunal claim came less than a month after a group of angry veterans announced they were suing the Government and individual ministers for $5 billion.
The vets' launched their massive suit because they were furious with the $30 million compensation package announced by the Government earlier this year, which was believed to assist less than 100 veterans and their families.
"The Vietnam veterans have asked me to do this and it is hoped that this will back up any claims they have against the nation and the Government," Bishop Vercoe said.
"(The money) will be used to accommodate the widows and children of soldiers that are suffering as a result of Agent Orange."
Bishop Vercoe served in the Vietnam War as a chaplain in 1968, often joining the soldiers on the front line rather than sticking to the safety of his office. The 79-year-old is battling a brain tumour but has put his pain on hold to fight for the rights of Kiwi vets.
Sunday News has obtained a copy of Bishop Vercoe's Waitangi Tribunal claim, dated May 25.
In it, the bishop is quick to point out he believes Pakeha soldiers should also be covered in the settlement.
"I wish it to be known right from the outset that the only reason my Pakeha fellow-Vietnam vet is not standing as a co-claimant with me is the Treaty of Waitangi Act 1975," Vercoe writes.
He told Sunday News: "(Pakeha) cannot go to the Waitangi Tribunal but we are still working with them to make sure that they are not left out. This is not just for our Maori veterans, this claim is as much for the non-Maori I shared foxholes with."
Representing Bishop Vercoe in his claim is top Waitangi Tribunal and public law specialist Paul Harman - also the New Zealand legal representative for the pending $5 billion lawsuit against the Government.
Harman said the claim was valid under the Treaty of Waitangi Act.
"The sooner the government stops worrying about saving money and starts focusing on ensuring the needs of these veterans and their families are addressed the better," Harman said.
Bishop Vercoe, a principal companion of the New Zealand Order of Merit, led Maori on the 1998 Hikoi of Hope march to Parliament.
But he said the Waitangi Treaty claim was his crowning achievement.
"This is No 1 as far as I'm concerned,"," Bishop Vercoe said.
"I think the veterans have been treated very badly since Vietnam. The nation has never recognized them and they went into a war zone that they were told wasn't a war zone. The local prisoners do better than us. They get compensation and we don't."
--------------------------------------------------------------------------------
9/11 Toxic Chemical Victim to be added to the list of 9/11 Victims
9/11 Victim List
I guess you heard on the news that a person died from what was determined exposure to toxic chemicals (probably dioxins) (recall the NY Times article of concern of dioxins in the area) from the burning of the attack on the trade centers. This persons name will be added to the list of "victims of the attack itself."
I wonder how that medical decision for a civilian was ascertained and how differently the process is compared to the NAS/IOM processes used to determine our Veteran Victim status in death and disability; not caused by terrorist but our own government. I would bet the decisions making process is like night and day; or Veterans controlled by the VA and an honest doctor's opinion.
I wonder if that family will now be eligible for the millions in government compensations.
If they did that for the Veteran Victims, it would take about four times the space we have now for the wall.
In my opinion, just another government slap in the face to Veterans compared to civilians.
--------------------------------------------------------------------------------
Kelley
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Follow-up, New Website, AO in Milk in Nam, New Zealand Media Report,
http://www.2ndbattalion94thartillery.com/Chas/Followup.htm
9/11 Toxic Chemical Victim to be added to the list of 9/11 Victims
Follow up on decontamination of AO drums or anything with AO
Follow up on AO and Benzene Posting - reference DoD decontamination procedures.
I don't know if this would help or not. Back in the early nineties, I was working for a toxic clean-up corporation. One day I was asked if I knew anything about AO. It seems there was a spill or something and the Company (Magnum Tank Service, Pompano Beach FL) was thinking about taking the job. However, I was later informed that the reason they (Magnum) did not take the job was that had they taken the job the Tankers that would have been used would have to be destroyed, as there was NO KNOWN way to clean the Tankers out. Once used for AO, that is all they could ever be used.
Thanks Nick
I wonder what the Fort Detrick instructions were. If anyone has a copy, please let me know so we can post it.
“On October 23, 1969, an urgent message was sent from Fort Detrick, Maryland, to MACV concerning cleaning of drums containing herbicides. The message provided detailed instructions on how to clean the drums and warned that it was particularly important to clean Agent Orange drums.”
--------------------------------------------------------------------------------
New website to me on Vietnam Archives, including AO.
Thanks to John, there is a searchable website by the Red Raiders of Texas Tech University.
If you go to http://www.vietnam.ttu.edu/vietnamarchive/...agentorange.htm
Then select on the left side Reference Information and then slide over to Reference Databases.
When that loads on the left, you can select Search the Virtual Vietnam Archives.
When that loads you can type in search criteria such as “Peripheral Neuropathy” – of course hit search and then display results. Just on, Neuropathy it came up with 479 hits in their archive on AO. Yet VA, DoD, and NAS/IOM say it is not associated.
Of course the VA Cosa Nostra will probably pay them a visit and shut it down.
--------------------------------------------------------------------------------
From Gibbo in Australia -
If you drank milk in 'Nam between 1965 and 1972 you ingested Agent Orange and a variety of other herbicide residues.
As you may know, the Foremost Milk Company (now out of business in the US) based in Los Angeles held the DOD contract for the US military's milk supply in So'east Asia. Before and after shipping packaged 'finished milk' in its distinctive orange/white containers, Foremost shipped a milk concentrate to 'Nam which was to be mixed with water. Unfortunately, the water used was taken from the Saigon River that, DOD belatedly learned, was infested with herbicide drainage. Foremost USA went defunct several years ago but Foremost Vietnam is still in operation.
Milk became an essential export by the USG to Vietnam after 1967 after doctors in the States discovered they were treating large numbers of Vietnam vets suffering from gastroenteritis and other colon inflammatory illnesses due to lack of the enzyme used by the intestines to digest milk. If a person continues to drink milk, their body will continue to produce the enzyme (kind of like a wet nurse who continues to manufacture breast milk for decades after giving birth as long as her milk continues to be suckled.)
However, if a person stops drinking milk their body stops producing the enzyme. Because milk was not as available in 'Nam during America's early deployment thousands of Americans assigned to Vietnam gradually stopped producing the enzyme... but when they returned back to The World the first thing they consumed in large quantities was milk... which made them sick because they could no longer adequately digest it.
As a result, Foremost was contracted to ensure there was always a large supply of milk for GI's to consume. Unfortunately, the high demand resulted in its Vietnam production being mixed with tainted water. Hence, many American's who served in Vietnam but had no direct contact with herbicide distribution or deployment contracted the chemicals through the milk they drank.
REFERENCES:
1. Herbicides Used in Vietnam
http://members.aol.com/warlibrary/vwhr1.htm
2. Foremost Vietnam
http://www.asemconnectvietnam.gov.vn/Local...5&DnID=7503
I think the NAS/IOM and our government are the only ones left in the world that deny most Vietnam Veterans came home with gastro problems – such as intolerance to milk and milk products – heavy red meats, or anything greasy. I know that I could no longer eat the things I grew up on after being gone for 365 days and many I have talked with said the same thing.
The University of Fl I think it was around 70 or 71 did a study on why so many Veterans were coming home with this disorder. My mother was the one that pointed it out to me since she knew then, something was wrong. I just passed it off as something you had to live with. Most of us were diagnosed from anything from IBS, or a spastic this, or a spastic that which meant the doctors had no idea. I had three lower GI series and two upper GI series with a stay in the hospital to try and find out what was wrong. Of course, the VA says no no on that since the doctor I was treated by and the hospital, which was a humanitarian hospital out of business now (since hospitals are big business these days) decades ago and I have no records. I have testimony of at least three folks in the family and one friend he served with the 25th that indicate I was treated in the hospital and had severe gastro problems after coming home.
It was only after I put it together and had the appropriate tests run did it verify the damages.
Now that was probably the first sign we had a toxic chemical issue “immune system issues” but the testing that was not available then and or course our truthful government denying all of the toxic chemical issues with VA in the lead as the denier of facts working with DoW and Monsanto. Moreover, lets add in the EPA at that time also – when some EPA scientists blew the whistle, then they were punished - not the chemical companies for their lies in court.
Had the proper testing been done then they would have found the small intestine celi were burnt to hell and back. The tips of the celi make the enzyme for the milk double sugar. If it is damaged then you no longer produce the enzyme for milk. In addition, it can be associated to a lack of absorption of essential minerals and vitamins such as loss of B12 another noted AO association. That by the way, can also be associated with neurological damages?
--------------------------------------------------------------------------------
New Zealand media report -
American Vets, while our government has been full of malfeasance, collaborations, and conspiracies as criminal as it is; the New Zealand Vets have been treated even worse by their government and their citizenry, if one can imagine that.
Big Vietnam claim to Waitangi Tribunal
By KRISTIAN SOUTH - Sunday News | Sunday, 3 June 2007
EXCLUSIVE
THE former head of the Anglican Church in New Zealand has lodged a $170 million Waitangi Tribunal claim on behalf of Kiwi Vietnam War veterans.
Bishop Te Whakahuihui Vercoe, who stood down as Archbishop of Aotearoa last year for health reasons, said he laid the claim because veterans' exposure to Agent Orange had ruined Maori bloodlines.
"About 60 percent of those who served in Vietnam were Maori," Bishop Vercoe told Sunday News from his Rotorua home.
"My goal is to protect our children and wives, because if the Government does not care about them, who will? And what would become of those children born without limbs?
"This is about improving the amount that has been allotted to the widows and families of veterans."
Agent Orange was used to kill foliage which provided cover for the Viet Cong in the war. It also destroyed the health of American troops and their allies, including New Zealand troops.
A Sunday News investigation last year uncovered medical tests which showed the defoliant caused genetic damage in up to 3500 Kiwi vets. The DNA damage was suspected to be so bad it could affect multiple generations with cancer, spina bifida and a host of other genetic diseases.
Bishop Vercoe's $170m Waitangi Tribunal claim came less than a month after a group of angry veterans announced they were suing the Government and individual ministers for $5 billion.
The vets' launched their massive suit because they were furious with the $30 million compensation package announced by the Government earlier this year, which was believed to assist less than 100 veterans and their families.
"The Vietnam veterans have asked me to do this and it is hoped that this will back up any claims they have against the nation and the Government," Bishop Vercoe said.
"(The money) will be used to accommodate the widows and children of soldiers that are suffering as a result of Agent Orange."
Bishop Vercoe served in the Vietnam War as a chaplain in 1968, often joining the soldiers on the front line rather than sticking to the safety of his office. The 79-year-old is battling a brain tumour but has put his pain on hold to fight for the rights of Kiwi vets.
Sunday News has obtained a copy of Bishop Vercoe's Waitangi Tribunal claim, dated May 25.
In it, the bishop is quick to point out he believes Pakeha soldiers should also be covered in the settlement.
"I wish it to be known right from the outset that the only reason my Pakeha fellow-Vietnam vet is not standing as a co-claimant with me is the Treaty of Waitangi Act 1975," Vercoe writes.
He told Sunday News: "(Pakeha) cannot go to the Waitangi Tribunal but we are still working with them to make sure that they are not left out. This is not just for our Maori veterans, this claim is as much for the non-Maori I shared foxholes with."
Representing Bishop Vercoe in his claim is top Waitangi Tribunal and public law specialist Paul Harman - also the New Zealand legal representative for the pending $5 billion lawsuit against the Government.
Harman said the claim was valid under the Treaty of Waitangi Act.
"The sooner the government stops worrying about saving money and starts focusing on ensuring the needs of these veterans and their families are addressed the better," Harman said.
Bishop Vercoe, a principal companion of the New Zealand Order of Merit, led Maori on the 1998 Hikoi of Hope march to Parliament.
But he said the Waitangi Treaty claim was his crowning achievement.
"This is No 1 as far as I'm concerned,"," Bishop Vercoe said.
"I think the veterans have been treated very badly since Vietnam. The nation has never recognized them and they went into a war zone that they were told wasn't a war zone. The local prisoners do better than us. They get compensation and we don't."
--------------------------------------------------------------------------------
9/11 Toxic Chemical Victim to be added to the list of 9/11 Victims
9/11 Victim List
I guess you heard on the news that a person died from what was determined exposure to toxic chemicals (probably dioxins) (recall the NY Times article of concern of dioxins in the area) from the burning of the attack on the trade centers. This persons name will be added to the list of "victims of the attack itself."
I wonder how that medical decision for a civilian was ascertained and how differently the process is compared to the NAS/IOM processes used to determine our Veteran Victim status in death and disability; not caused by terrorist but our own government. I would bet the decisions making process is like night and day; or Veterans controlled by the VA and an honest doctor's opinion.
I wonder if that family will now be eligible for the millions in government compensations.
If they did that for the Veteran Victims, it would take about four times the space we have now for the wall.
In my opinion, just another government slap in the face to Veterans compared to civilians.
--------------------------------------------------------------------------------
Kelley
-
I thought the Seattle VARO was Bad. Then they sent my claim to St. Petersberg.
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>I am going to ask my Doc on Medicare if he will write a prescription for me and just buy it myself.
Im sorry to hear your still getting this type of treatment Pete.
This is the model system the rest of the country wants to switch to?
Maybe if they screw up enough, every one will pay for their own meds.
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Welcome to hadit.com USMC,
Good luck!!!!!!!!!
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Jon,
Yes I've had the same problem of C&P's not showing upgo to the records dept at the Spokane VAMC. REquest seeing your "Administrative Folder" records. They may hide favorable C&P's in there. Atleast, that's where mine was.
You will not get any cooperation between any facilities. In state or between states. Seattle & Spokane VAMC's act like complete rivals at times. There records dept. do not coexist. Their medical records concerning you, ARE NOT linked by computers according to staff. Staff within the same facility can't find any of your records on their own computers, if they don't want to help you. Same at the RO.
Get ahold of the your team Social Worker & the clinics Patient advocate. Theres some very good folks at Spokane. Let them try to get you help first.
If you get no action in 24 hrs, then I would get on the horn to Sen Patty Murrays office followed by a fax & a letter.
If you live in Idaho, try Sen Craig's office.
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Hello Betrayed,
the claims I've submitted for depression & chronic pain have been given the same treatment. They don't exist according to the VARO or BVA level.
Health care for chronic pain hasn't been much better. The only long acting medication they will prescribe is Methadone. They say take it or take nothing. When I say I've tried it & didn't have a good reaction to it, with the other meds I have to take. Then they put in the records, that "the patient refuses", long acting pain meds.
The only way I can recieve any kind of consistant pain relief, is to use what I know that works. I've had chronic pain during active duty up until today. I've tried most everything that is available. When you find something that takes away a miserable existance for a life, why would you refuse it?
I've had several issues filed by me or my reps over the decades, as I discovered the evidence in records or through medical science.
Many of these yrs I tried putting things together, with undiagnosed & untreated illnesses, such as TBI, MS, Hypertension, Ischemia, Fibromyalgia, Hypothyroidism, PTSD/Depression, ashma, COAD, Spinal Stenosis/Spondylosis, to list a few.
I have alot of days where nothing works right. Mind, body or spirit, so it really plays with your mind when some types of pain go untreated, or your medications are suddenlly withheld or delayed.
I use medicare for a private Dr & pay a couple hundred a month for long acting pain meds, since the VAMC refuses to supply them. I can now go to any non-VA pharmacy every month & make sure my prescription is continued on time, EACH month. It feels much better to not have to go through sudden medication withdrawals so often.
I'm also not fond of health care personel, that laugh at you about a week or two into withdrawals & say, "what's wrong with Methadone, your going to get hooked on something"?
My thoughts are, why die from something that provides bad results with combining my other meds?
-
fwd
AO and Benzene Questions and Request for Help
Below is a request for help associated to Myelofibrosis and exposures to Benzene mixed with AO or anyone that mixed AO with diesel, kerosene, and gasoline to spray.
Actually, Fort Detrick, MD sent out an emergency directive in mid 1969 to MACV on how to decontaminate the used AO barrels in 1969. The reason was that used AO drums were being used to transport PLO also and when mixed with gas AO readily burned. The result was an internal combustion engine Agent Orange Aerosol Dispenser. How many Blue Suitors actually followed the decontamination instructions, as anybody knows that served in the Military, is questionable even after 1969 when the emergency directive came out.
AO was always used with AW. AW contained Picloram, which had Hexachlorobenzene. The issue is we do not know how much was in there because it was conveniently of course DOW proprietary.
We do know that in 1985 to re-qualify Picloram our EPA made DOW reduce the amount of Hexachlorobenzene. Reports have shown this is now at <100 parts per million but what it was in that toxic swill they used on us is at this time conveniently unknown. Government amnesia is somewhat convenient when it comes to VA claims and telling science exactly what we drank and ate.
You might check with the 9th Infantry Division website – One of the 9th Infantry said a directive came out on how to use AO and Diesel fuel (50/50) injected into an tube on the exhaust manifold to make a mosquito fogger.
I know some Marines drank boiled water out of the used AO and AW barrels prior to mid 1969. Therefore, it is doubtful they were decontaminated. We also cleaned canteens in the hot water.
Best of luck.
Marvin you can tell Congressman Gary Miller from me and millions of Veterans, we do not need anymore damn studies that the government can manipulate to hell and back while congress sits back with closed eyes and deaf ears. We spent 146 million dollars and 25 years on nothing but outcomes that are lies and more lies. What we need is some damn integrity in Congress and for them to let us speak, and then demand answers from our questions. Another damn study is the last thing we need – the data is there already in Odds Ratios and Risk Ratios. Someone just has to be honest about it and that at this time is not our own government.
It seems clear that these herbicides and combination of herbicides can induce hematopoietic disorders either in autoimmune form or cancer form.
Keep fighting -
Kelley
AO & Benzene, did you mix or spray it
Mon May 21, 2007 10:43 am (PST)
AO & Benzene, did you mix or spray it?
Anyone who mixed AO with diesel, kerosene, gasoline to spray
Please contact: derrickdecker@cox.net
Purpose to get Myelofibrosis recognized as caused by AO, to prove AO was
mixed
http://www.bt.cdc.gov/agent/benzene/basics/facts.asp
Long-term health effects of exposure to benzene
The major effect of benzene from long-term exposure is on the blood.
(Long-term exposure means exposure of a year or more.) Benzene causes
harmful effects on the bone marrow and can cause a decrease in red blood
cells, leading to anemia. It can also cause excessive bleeding and can
affect the immune system, increasing the chance for infection.
Some women who breathed high levels of benzene for many months had irregular
menstrual periods and a decrease in the size of their ovaries. It is not
known whether benzene exposure affects the developing fetus in pregnant
women or fertility in men.
Animal studies have shown low birth weights, delayed bone formation, and
bone marrow damage when pregnant animals breathed benzene.
The Department of Health and Human Services (DHHS) has determined that
benzene causes cancer in humans. Long-term exposure to high levels of
benzene in the air can cause leukemia, cancer of the blood-forming organs.
-----Original Message-----
From: derrickdecker@cox.net [mailto:derrickdecker@cox.net]
Sent: Saturday, May 19, 2007 1:25 PM
To: colonel-dan: sbcglobal.net
Subject: Help
Colonel Dan, I need help finding anyone who sprayed Agent Orange in Vietnam.
Anyone who mixed AO with diesel, kerosene, gasoline to spray.
This is very important, possibly to hundreds, if not thousands of Vets.
Can you put out the word? I have statements from New Zealand, Australian
vets, but need 1st hand accounts from US Vets.
I have a bone marrow disease Myelofibrosis, I'm terminal have 1 maybe two
years, according to my DR. I have just completed my final BVA via a
teleconference with a Judge in DC, April 30. I supplied information and my
research regarding my illness. I have battled this claim for 4 years for
recognition as caused by AO. My illness is one of many directly linked to
Benzene, leukemias, etc. Mixing AO with kerosene, diesel fuel, gasoline to
spray, directly caused my illness, and the many other cancers VETS are
suffering from. This could answer many cases for Vets. The VA mandate to
research AO, only included AO and its components. These studies were and
are limited to just that, failing to recognize the total picture. Benzene is
the cause of many Vets problems. My congressman, Gary Miller, CA has helped
my effort. He suggests I write congress and suggest hearings regarding this,
and allow congress to mandate further studies.
I need to this for all the families and those Vets, fighting for other
related diseases, unknowingly caused by Benzene.
Having Myelofibrosis recognized as caused by AO, will open the door wide
for those Vets, suffering MPD's Benzene is absolutely known to cause many
cancers. Bone marrow depression, immunological deficiencies, etc Recognition
will greatly advance the solutions for Vets.
Look what Benzene causes online; you’ll see what I’m talking about.
This, I pray will be a legacy of mine to help them.
Testimonies of Vets, who mixed these deadly components, who support my
premise.
Please help,
Marvin Derrick
519th MI Bn Vet 67-68
http://www.2ndbattalion94thartillery.com/C...amp;Benzene.htm
-
fwd
AO and Benzene Questions and Request for Help
Below is a request for help associated to Myelofibrosis and exposures to Benzene mixed with AO or anyone that mixed AO with diesel, kerosene, and gasoline to spray.
Actually, Fort Detrick, MD sent out an emergency directive in mid 1969 to MACV on how to decontaminate the used AO barrels in 1969. The reason was that used AO drums were being used to transport PLO also and when mixed with gas AO readily burned. The result was an internal combustion engine Agent Orange Aerosol Dispenser. How many Blue Suitors actually followed the decontamination instructions, as anybody knows that served in the Military, is questionable even after 1969 when the emergency directive came out.
AO was always used with AW. AW contained Picloram, which had Hexachlorobenzene. The issue is we do not know how much was in there because it was conveniently of course DOW proprietary.
We do know that in 1985 to re-qualify Picloram our EPA made DOW reduce the amount of Hexachlorobenzene. Reports have shown this is now at <100 parts per million but what it was in that toxic swill they used on us is at this time conveniently unknown. Government amnesia is somewhat convenient when it comes to VA claims and telling science exactly what we drank and ate.
You might check with the 9th Infantry Division website – One of the 9th Infantry said a directive came out on how to use AO and Diesel fuel (50/50) injected into an tube on the exhaust manifold to make a mosquito fogger.
I know some Marines drank boiled water out of the used AO and AW barrels prior to mid 1969. Therefore, it is doubtful they were decontaminated. We also cleaned canteens in the hot water.
Best of luck.
Marvin you can tell Congressman Gary Miller from me and millions of Veterans, we do not need anymore damn studies that the government can manipulate to hell and back while congress sits back with closed eyes and deaf ears. We spent 146 million dollars and 25 years on nothing but outcomes that are lies and more lies. What we need is some damn integrity in Congress and for them to let us speak, and then demand answers from our questions. Another damn study is the last thing we need – the data is there already in Odds Ratios and Risk Ratios. Someone just has to be honest about it and that at this time is not our own government.
It seems clear that these herbicides and combination of herbicides can induce hematopoietic disorders either in autoimmune form or cancer form.
Keep fighting -
Kelley
AO & Benzene, did you mix or spray it
Mon May 21, 2007 10:43 am (PST)
AO & Benzene, did you mix or spray it?
Anyone who mixed AO with diesel, kerosene, gasoline to spray
Please contact: derrickdecker@cox.net
Purpose to get Myelofibrosis recognized as caused by AO, to prove AO was
mixed
http://www.bt.cdc.gov/agent/benzene/basics/facts.asp
Long-term health effects of exposure to benzene
The major effect of benzene from long-term exposure is on the blood.
(Long-term exposure means exposure of a year or more.) Benzene causes
harmful effects on the bone marrow and can cause a decrease in red blood
cells, leading to anemia. It can also cause excessive bleeding and can
affect the immune system, increasing the chance for infection.
Some women who breathed high levels of benzene for many months had irregular
menstrual periods and a decrease in the size of their ovaries. It is not
known whether benzene exposure affects the developing fetus in pregnant
women or fertility in men.
Animal studies have shown low birth weights, delayed bone formation, and
bone marrow damage when pregnant animals breathed benzene.
The Department of Health and Human Services (DHHS) has determined that
benzene causes cancer in humans. Long-term exposure to high levels of
benzene in the air can cause leukemia, cancer of the blood-forming organs.
-----Original Message-----
From: derrickdecker@cox.net [mailto:derrickdecker@cox.net]
Sent: Saturday, May 19, 2007 1:25 PM
To: colonel-dan: sbcglobal.net
Subject: Help
Colonel Dan, I need help finding anyone who sprayed Agent Orange in Vietnam.
Anyone who mixed AO with diesel, kerosene, gasoline to spray.
This is very important, possibly to hundreds, if not thousands of Vets.
Can you put out the word? I have statements from New Zealand, Australian
vets, but need 1st hand accounts from US Vets.
I have a bone marrow disease Myelofibrosis, I'm terminal have 1 maybe two
years, according to my DR. I have just completed my final BVA via a
teleconference with a Judge in DC, April 30. I supplied information and my
research regarding my illness. I have battled this claim for 4 years for
recognition as caused by AO. My illness is one of many directly linked to
Benzene, leukemias, etc. Mixing AO with kerosene, diesel fuel, gasoline to
spray, directly caused my illness, and the many other cancers VETS are
suffering from. This could answer many cases for Vets. The VA mandate to
research AO, only included AO and its components. These studies were and
are limited to just that, failing to recognize the total picture. Benzene is
the cause of many Vets problems. My congressman, Gary Miller, CA has helped
my effort. He suggests I write congress and suggest hearings regarding this,
and allow congress to mandate further studies.
I need to this for all the families and those Vets, fighting for other
related diseases, unknowingly caused by Benzene.
Having Myelofibrosis recognized as caused by AO, will open the door wide
for those Vets, suffering MPD's Benzene is absolutely known to cause many
cancers. Bone marrow depression, immunological deficiencies, etc Recognition
will greatly advance the solutions for Vets.
Look what Benzene causes online; you’ll see what I’m talking about.
This, I pray will be a legacy of mine to help them.
Testimonies of Vets, who mixed these deadly components, who support my
premise.
Please help,
Marvin Derrick
519th MI Bn Vet 67-68
http://www.2ndbattalion94thartillery.com/C...amp;Benzene.htm
-
Title: spurgeon.opn
Author: USCVA
Typist: USCVA
UNITED STATES COURT OF VETERANS APPEALS
No. 95-956
David P. Spurgeon, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
On Appeal from the Board of Veterans' Appeals
(Decided April 15, 1997 )
Robert C. Rhodes was on the brief for the appellant.
Mary Lou Keener, General Counsel; Ron Garvin, Assistant General
Counsel; Thomas A. McLaughlin, Deputy Assistant General Counsel; and John
D. McNamee were on the brief for the appellee.
Before FARLEY, HOLDAWAY, and IVERS, Judges.
IVERS, Judge: The appellant appeals a July 26, 1995, decision of the
Board of Veterans' Appeals (BVA or Board) denying an increased rating for
service-connected post-operative residuals of an osteoma removal currently
rated 10% disabling. David P. Spurgeon, BVA 95-14582 (July 26, 1995). An
osteoma is a benign, slow-growing mass of mature, predominantly lamellar (
thinly layered), bone. Stedman's Medical Dictionary 1269 (26th ed. 1995) [
hereinafter Stedman's]. The Court has jurisdiction over this appeal
pursuant to 38 U.S.C. 7252(a). For the reasons set out below, the Court
will vacate the Board's decision and remand the matter for further
adjudication.
I. FACTUAL BACKGROUND
The appellant served on active duty in the United States Navy from
July 1, 1973, until January 12, 1976. Record (R.) at 59. In January
1974, the appellant underwent surgery for the removal of an osteoid
osteoma on his right wrist. R. at 22, 80.
In March 1975, the appellant witnessed the gruesome death of his
brother by an airplane propeller blade at Miramar Naval Air Station. R.
at 54-56. A psychiatric examination conducted on December 18, 1975,
revealed that the appellant was under great emotional stress and that he
blamed the Navy for his brother's death. Id. The examining psychiatrist
recommended immediate discharge on "psychiatric as well as humanitarian
grounds." R. at 55. The appellant was honorably discharged in January
1976 for "unsuitability - apathy, defective attitudes, and inability to
expend effort effectively." R. at 59.
The appellant filed for disability compensation on July 22, 1985,
requesting service connection for psychological problems, right wrist
tumor removal, and a right ankle problem. R. at 61-64. He was awarded
service connection for post-operative residuals relating to his right
wrist osteoma removal on November 18, 1985, rated noncompensable. R. at
101. The appellant was later awarded a non-service-connected disability
rating for passive-aggressive personality disorder, rated 30% disabling.
R. at 105-06.
On December 1, 1986, the VA regional office (RO) increased to 10% the
appellant's rating for residuals of a right wrist osteoma removal. R. at
127-28. In 1988, 1990, 1991, the appellant made additional requests for
an increase which the RO denied. R. at 133, 175-76, 187. In August 1993
the appellant filed a VA Form 1-9, Appeal to Board of Veterans' Appeals,
perfecting his appeal to the Board and claiming service connection for
post-traumatic stress disorder (PTSD). R. at 195. On January 11, 1993,
the BVA remanded the claims for further adjudication and ordered the RO to
afford the appellant a complete psychiatric examination and an orthopedic
examination of his right wrist. R. at 247-52.
On April 3, 1993, the appellant had a complete orthopedic examination
to determine the severity of his wrist disorder. R. at 258-59, 268.
During that examination, the physician noted:
[The appellant] is not able to make a fist. He has a well-healed
incision over the dorsum of his right distal radius. He demonstrates
strength of interossei grip,
abductor pollices, adductor pollices and opponens, but these are all
decreased in strength. He states that he is numb in all of the
fingers of his right hand.
R. at 259. The physician observed that the appellant had 25° of
dorsiflexion, 30° of palmar flexion, and 15° of ulnar and radial
deviation in his right wrist. Ibid. With regard to the appellant's
complaint of wrist pain, the examiner noted:
The etiology, however, of his pain and lack of motion is not easily
understood. He has had numerous bones [sic] scans, EMG's, etc.,
which apparently have shown nothing. . . .
I am not entirely sure why he continues to have the degree of pain,
etc.[,] that he has had. I do feel that there is probably a strong
psychosocial overlay to this problem. Certainly if the bone scan is
negative this rules out any bony pathology with regard to this.
R. at 258-59.
On March 10, 1993, the appellant underwent a VA psychiatric
examination in which he was diagnosed with PTSD. R. at 263-67. The RO
issued a rating decision on October 7, 1994, awarding the appellant
service connection for PTSD rated at 30% disabling and continuing his 10%
rating for post-operative residuals of the right wrist osteoma. R. at 285-
86.
The appellant, through his service representative, notified the Board
on June 14, 1995, that he believed the PTSD rating was fair and accurate
but that he disagreed with the decision to deny an increased rating for
his right wrist and hand. R. at 303. On July 26, 1995, the Board issued
a final decision denying an increased rating for post-operative residuals
on his right wrist based upon the results from the April 1993 orthopedic
evaluation. Spurgeon, BVA 95-14582, supra; R. at 4-12. The appellant
appealed this decision to the Court.
II. ANALYSIS
A. Claim for an Increased Rating Due to Pain
The appellant argues, in his brief, that the examining physician did
not adequately evaluate the severity of his right wrist pain and that he
is entitled to an increased rating because he suffers functional loss of
his hand due to pain. Appellant's Brief (Br.) at 11-12. The appellant's
claim for an increased rating for a right wrist disorder under the rating
schedule is "a new claim, and the Court reviews the Board's findings of
fact regarding new claims under a 'clearly erroneous'
standard of review." Cox v. Brown, 6 Vet.App. 459, 460 (1994); see also
38 U.S.C. 7261(a)(4); Butts v. Brown, 5 Vet.App. 532, 535 (1993)(en banc
). "[T]his Court is not permitted to substitute its judgment for that of
the BVA on issues of material fact; if there is a `plausible' basis in the
record for the factual determinations of the BVA, even if this Court might
not have reached the same factual determinations, we cannot overturn them
." Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). The BVA is required
to provide reasons or bases for any material factual or legal
determination. See 38 U.S.C. 7104(d)(1); see also Webster v. Derwinski,
1 Vet.App. 155, 159 (1991).
Under 38 C.F.R. 4.40 (1996), the Board is required to consider the
impact of pain in making its rating determination. Schafrath v. Derwinski,
1 Vet.App. 589, 593 (1991). The Board is required to provide a statement
of its reasons and bases with respect to that aspect of the determination
as well. Ibid (citin
g Gilbert, 1 Vet.App. at 58). Although section 4.40 does not
require a separate rating for pain, it does promulgate guidance for
determining ratings under other diagnostic codes assessing musculoskeletal
function. See generally 38 C.F.R. 4.71(a) (1996). The fact that a
specific rating for pain is not required by section 4.40 does not relieve
the BVA from its obligation to provide a statement of reasons or bases
pertaining to that regulation. See DeLuca v. Brown, 8 Vet.App. 202, 207 (
1995).
During the examination, the physician evaluated the appellant's wrist
with respect to his complaints of pain and expressly stated that he could
find no etiological basis for the pain. R. at 259. The physician opined
that there was "probably a strong psychosocial overlay" to the problem of
pain. Ibid. The appellant argues that, if the pain were psychosocial,
the physician should have referred him to a psychiatrist and the RO should
have followed up on this recommendation. Appellant's Br. at 11. Although
the appellant did undergo a complete VA psychiatric examination and was
eventually diagnosed with PTSD, there was no consideration given to
whether his painful wrist could be attributed to his psychiatric problems.
R. at 260-67. A veteran may be awarded a disability for "Somatoform
Disorders." See 61 Fed.Reg. 52695 (Oct. 8, 1996) (renaming 38 C.F.R. 4.
132, "Psychological Factors Affecting Physical Condition," DC 9500-9511,
as 38 C.F.R. 4.130, DC 9421-9425, "Somatoform Disorders"). "Somatoform"
refers to
psychogenic symptoms resembling those of physical disease. Dorland's
Illustrated Medical Dictionary 1545 (28th ed. 1994).
In its decision, the BVA failed to discuss the appellant's pain,
mention 38 C.F.R. 4.40, or discuss the possible link between the
appellant's complaints and his service-connected psychiatric condition.
Where the BVA has failed to provide adequate "reasons and bases" with
respect to the role, if any, that pain played in its determination, a
remand is required. See Hicks v. Brown, 8 Vet.App. 417, 422 (1995);
Voyles v. Brown, 5 Vet.App. 451, 453 (1993) (remanding because "it was
necessary for the BVA to address both the existence and extent of [the]
appellant's pain, as well as any limitation of motion due to his service-
connected disabilities").
B. Duty to Notify
The appellant's claim should also be remanded for the Board's failure
to notify the appellant that he was responsible for furnishing employment
records to support his claim that his wrist disability affected his
employment.
A veteran is entitled to an extraschedular rating in "exceptional"
cases "where the scheduler evaluations are found to be inadequate." 38 C.
F.R. 3.321(b)(1) (1996). Under this regulation, an "exceptional" case
is one which presents "such an exceptional or unusual disability picture
with such related factors such as marked interference with employment or
frequent periods of hospitalization as to render impractical the
application of the regular scheduler standards." Ibid. (emphasis added).
The appellant testified that his wrist condition "quite disturbed"
his work and that he had missed 800 hours of work at the U.S. Postal
Service. R. at 207. He further argues that the VA failed to assist him
by not seeking and obtaining records from the U.S. Postal Service showing
that he had, in fact, missed 800 hours of work. Appellant's Br. at 11-13.
Under the regulations governing VA's duty to assist:
(b) When information sufficient to identify and locate necessary
evidence is of record, the Department of Veterans Affairs shall
assist a claimant by requesting, directly from the source, existing
evidence which is either in the custody of military authorities or
maintained by another Federal Agency . . . .
© Should its efforts to obtain evidence prove unsuccessful for any
reason which the claimant could rectify, the Department of Veterans
Affairs shall so notify the
claimant and advise him or her that the ultimate responsibility for
furnishing evidence rests with the claimant.
38 C.F.R. 3.159(b),©; see also 38 U.S.C. 5106, 5107; White v.
Derwinski, 1 Vet.App. 519 (1991).
The Secretary relies on the novel argument that the U.S. Postal
Service is an independent establishment of the executive branch and, since
it operates in a "business-like fashion, similar to other self-sustaining
commercial ventures" the records in their possession cannot be deemed to
be "in the possession of the Federal Government" for purposes of the
regulation. Secretary's Br. at 8 (citing Counts v. Brown, 6 Vet.App. 473,
478 (1994)).
There is no evidence in the record that VA ever attempted to secure
the appellant's employment records and no evidence that VA ever notified
the appellant that he had the ultimate responsibility of furnishing the
records. Whether or not the Postal Service is a federal agency as
contemplated by 38 C.F.R. 3.159(b) is beside the point. Employment
records, particularly those relating to lost time or sick leave, are
generally highly confidential in nature and not releasable to anyone other
than the employee without his written and specific release. Any argument
or suggestion that VA could have or should have simply obtained these
records, unilaterally, is misplaced. Having now recognized the possible
importance of these records, it is unfortunate that the appellant, who
could have obtained the records easier than the Secretary, did not do so.
While there is certainly a duty to assist, such a duty does not relieve a
claimant entirely from assisting himself. See Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991) ("The duty to assist is not always a one-way street").
However, if VA could not or would not request the records, it had, at a
minimum, an obligation to advise the appellant of their relevance to his
claim. 38 C.F.R. 3.159©; 38 U.S.C. 5103(a); Robinette v. Brown,
8 Vet.App. 69, 80 (1995) (Secretary has obligation to inform claimant what
evidence is required to complete his claim). It did not. Therefore, a
remand is required. See Lehman v. Derwinski, 1 Vet.App. 339 (1991).
III. CONCLUSION
For the foregoing reasons, the Court VACATES the July 1995 decision
of the Board and REMANDS the matter for further adjudication. On remand,
the appellant may submit additional evidence and argument to support
his claim. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992).
-
Hello Betrayed,
is this any help to you?
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 02-1233
Dennis J. Hamilton, Appellant,
v.
Anthony J. Principi,
Secretary Of Veterans Affairs, Appellee.
Before IVERS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
IVERS, Chief Judge: The appellant, Dennis J. Hamilton, appeals from
a July 5, 2002, decision of the Board of Veterans' Appeals (BVA or Board)
that denied entitlement to service connection for a left elbow disability
and denied entitlement to service connection for arthralgias of multiple
joints, claimed as a chronic disability resulting from an undiagnosed
illness. The appellant, through counsel, filed a brief and a reply brief,
and the Secretary filed a brief. This appeal is timely, and the Court
has jurisdiction pursuant to 38 U.S.C. 7252(a). Summary disposition
is appropriate under Frankel v. Derwinski, 1 Vet.App. 23 (1990). For the
reasons stated herein, the Court will remand the appellant's left elbow
condition claim and affirm the Board decision with respect to the service
connection claim for arthralgias of multiple joints.
I. FACTS
The appellant had active duty service in the U.S. Marine Corps from
September 1973 to March 1978 and in the U.S. Army from November 1990 to
August 1991, including service in the Persian Gulf from January 1991 to
July 1991. Record (R.) at 20, 22. Service medical records (SMRs)
indicate that in January 1991, the appellant complained of left arm pain
following physical training that was subsequently diagnosed as tendinitis.
R. at 106. In April 1991, his left elbow pain
was diagnosed as olecranon bursitis. R. at 108. The appellant
complained of occasional left elbow pain in August 1991, but demonstrated
full range of motion on examination and x-rays did not indicate swelling
or signs of trauma. R. at 126. The appellant was diagnosed with
tendinitis of the left elbow. Id.
The appellant underwent Desert Storm medical evaluations in February
1995 and March 1995. R. at 124, 130-37. The appellant complained of
arthralgia in the left elbow. R. at 124. Arthralgia is defined as "pain
in a joint." Dorland's Illustrated Medical Dictionary 147 (27th ed. 1988
). The examination report noted a normal chest, no significant
abnormality in the knees, and bilateral bony spurs in the elbows. R. at
135.
The appellant filed a claim for compensation in July 1996 for
disabilities of the joints, including the knees, elbows, and hands. R. at
140-44. During a VA examination in September 1996, the appellant claimed
to have spontaneously developed pain in both wrists and both knees while
serving in the Persian Gulf. R. at 151. Although there was no history of
swelling or injury in those joints, the appellant stated his joints "hurt
all the time." Id. The examining physician reported full range of motion
in the appellant's joints and could detect "no objective evidence of
organic pathology in the left elbow, the right wrist, left wrist, right
knee or left knee." In addition, "x-rays of the [] joints [were] made to
verify this impression." R. at 152. The regional office (RO) notified
the appellant in July 1997 that additional evidence was necessary to
substantiate his claim. R. at 189-91. In September 1998, the appellant
submitted a statement of a person who served with him during Desert Storm
and in civilian life corroborating that the appellant had frequently
complained of joint pain. R. at 197.
The RO denied service connection for left elbow tendinitis and
multiple arthralgias in April 1999. R. at 200-04. The appellant filed an
appeal later that same month. R. at 206. The Board remanded the appeal
to the RO with instructions to gather additional medical records. The RO
considered the additional medical records in October 2000 and issued a
Supplemental Statement of the Case (SSOC) denying the claim. R. at 251-67
. The Board again remanded the appellant's claim following the enactment
of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-
475, 3, 114 Stat. 2096, 2096-97 (2000) (codified at 38 U.S.C. 5103-
5103A). R. at 271-74. In July 2001, the appellant indicated that he did
not have additional evidence to submit in support of
his claim. R. at 276. The RO issued an SSOC in September 2001 that
again denied the appellant's claim for service connection. R. at 283-93.
The RO stated that there was no evidence that either condition was
incurred in, or aggravated by, the appellant's service. R. at 292.
II. ANALYSIS
The Court notes the applicability of the VCAA to the appellant's
claim. However, because neither party has raised the issue, the Court
will not address the matter. See Maxson v. Principi, 15 Vet.App. 241,
242 (2001) (per curiam order); Tellex v. Principi, 15 Vet.App. 233,
240 (2001).
A. Left Elbow Disability
The Secretary concedes that the appellant's service connection claim
for a left elbow disability should be remanded because the Board decision
reaches contradictory conclusions regarding evidence of objective
pathology. Secretary's Brief (Br.) at 6. After reviewing the record, the
Court agrees and will remand the left elbow claim so that the Board may
provide an adequate statement of the reasons and bases as to the question
of whether the appellant's left elbow condition is supported by evidence
of objective pathology. 38 U.S.C. 7104(d)(1).
B. Arthralgia Claim
The appellant attributes his arthralgia disability to an undiagnosed
illness resulting from his service in the Persian Gulf War from January
1991 to July 1991. Appellant's Br. at 5-6. As a Persian Gulf War veteran,
the appellant's disability claim is evaluated pursuant to 38 U.S.C. 1117 (
2004). Section 1117 and 38 C.F.R. 3.317 authorize the Secretary to
compensate a Persian Gulf War veteran who "exhibits objective indications
of a qualifying chronic disability" that became manifest either (1) during
active duty in the Southwest Asia theater of operations, or (2) to a
degree of 10% or more within the presumptive period following service in
the region. 38 U.S.C. 1117(a)(1)(A) and (B) (2004); 38 C.F.R. 3.317(a)(
1) (2003). In regulation, the Secretary defined the presumptive period as "
not later than December 31, 2006." 38 C.F.R. 3.317(a)(1)(i) (2003). A "
qualifying chronic disability" is defined as a chronic disability
resulting from an undiagnosed
illness; a medically unexplained chronic multisymptom illness, that is
characterized by a cluster of symptoms, such as chronic fatigue syndrome,
fibromyalgia, and irritable bowel syndrome; or any illness the Secretary
determines warrants presumption of service connection. 38 U.S.C. 1117(a)(
2); 38 C.F.R. 3.317(a)(2)(i). For purposes of section 1117, "
'objective indications of chronic disability' include both 'signs,' in the
medical sense of objective evidence perceptible to an examining physician,
and other, non-medical indicators that are capable of independent
verification." 38 C.F.R. 3.317(a)(3) (2003).
In the decision on appeal, the Board evaluated the appellant's SMRs
and determined that "the record does not contain medical evidence of onset
of multiple joint arthralgias during the [appellant's] active military
service." R. at 15. The Board then addressed whether his condition was
manifest to a degree of 10% or more during the presumptive period
following service. R. at 12. Since the appellant's chief complaint was
arthralgia in multiple joints and joint pain may be a manifestation of an
undiagnosed illness for section 1117 purposes, the Board stated that the
appellant's claimed disability met the definition of "qualifying chronic
disability." R. at 12. The Board evaluated the appellant's condition by
analogy to degenerative arthritis (38 C.F.R. 4.71a, Diagnostic Code (DC)
5003) and fibromyalgia (38 C.F.R. 4.71a, DC 5025). R. at 13. 38 U.S.C
. 1117(g)(5); see also 38 C.F.R. 3.317(b)(5). In each instance, the
Board found that, although the appellant had "subjective complaints of
multiple joint pain, medical examiners have not found clinical evidence of
compensable disability such as limitation of motion, instability[,] or
subluxation of a joint." R. at 16. The Board also found that there were "
no objective indications of disability, i.e., signs in the sense of
objective evidence perceptible to an examining physician, or other, non-
medical indicators that are capable of independent verification." Id.
Before the Court, the appellant asks for a reversal of the Board
decision. Appellant's Br. at 19. The appellant acknowledges that "the
Board was correct that the symptoms complained of were similar to
arthritis or fibromyalgia," but contends that these diagnostic codes "did
not adequately reflect the degree of disability." Appellant's Br. at 9.
The appellant argues that "ince the condition for which the [
appellant] seeks compensation is defined as being 'undiagnosed[,]' it is
inconsistent with the regulatory and statutory provisions relating to
Persian Gulf Syndrome to deny a rating based on a failure to meet [the
diagnostic] criteria of other diseases." Id. Although the appellant
denies
the implication that his condition is psychosomatic in origin or that he
suffers from a mental illness, he argues that his disability is more
analogous to a neurogenic condition than to an organic disability.
Appellant's Br. at 10. The appellant claims that his condition is more
similar to somatization disorder (DC 9421), pain disorder (DC 9422), and
conversion disorder (DC 9424), and the Board erred in not applying the DCs
for these conditions to his disability. Id.
The Court may set aside the Board's selection of a DC in a particular
case only if such selection is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 38 U.S.C. 7261(a)(
3)(A); Fenderson v. West, 12 Vet.App. 119, 125 (1999); Butts v. Brown, 5
Vet.App. 532, 538-39 (1993) (en banc) ("VA and the BVA possess specialized
expertise in identifying and assessing the medical nature of a claimed
condition, and their application of a particular [DC] to a particular
condition is due . . . deference."). Although the Board's selection of
the proper DC is entitled to deference under the "arbitrary and capricious"
standard of review, the Board is nevertheless obligated to provide an
adequate statement of reasons or bases explaining why it selected a
particular DC by analogy over another possible analogous DC. See
Suttmann v. Brown, 5 Vet.App. 127, 133 (1993); see also Butts, 5 Vet.App.
at 538.
The appellant's contentions are unavailing in light of the evidence
of record and the plain language of 38 U.S.C. 1117 and 38 C.F.R. 3.317
. A claimant seeking service connection under section 1117 must provide "
objective indications of chronic disability' includ[ing] both 'signs' in
the medical sense of objective evidence perceptible to an examining
physician, and other, non-medical indicators that are capable of
independent verification." 38 C.F.R. 3.317(a)(3). The medical
examinations of February and March 1995 and September 1996 indicate that
the appellant has full range of motion in his joints and there is no
objective medical evidence, or nonmedical evidence capable of
independent verification, of organic pathology in his joints. Accordingly,
the appellant does not "exhibit objective indications of a qualifying
chronic disability," nor has he alleged that such indications exist,
sufficient to satisfy the requirements of section 3.317(a)(3) and
demonstrate entitlement to compensation pursuant to 38 U.S.C. 1117.
In addition, the Board did not err in evaluating the appellant's
arthralgia by analogy to degenerative arthritis and fibromyalgia. The
appellant has consistently described his condition as pain in multiple
joints and there is no evidence suggested by the appellant that his
condition is
neurogenic in origin. Indeed, the appellant expressly avoids any
suggestion that his condition is anything other than organic in nature and
essentially agrees with the Board's reliance on these analogous DCs.
Appellant's Br. at 9-10. In the absence of a diagnosis consistent with a
neurogenic origin for his disability, the appellant would have the Board
engage in the same type of conjectural use of analogous ratings that is
expressly prohibited by 38 C.F.R. 4.20 (2003): "Conjectural analogies
will be avoided, as will the use of analogous ratings for conditions of
doubtful diagnosis, or for those not fully supported by clinical or
laboratory findings." The appellant has not demonstrated that the DCs
relied on by the Board in its decision were "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance of law." The Court
will affirm the Board decision with respect to the appellant's claim of
service connection for multiple arthralgias.
III. CONCLUSION
On consideration of the record on appeal and the pleadings, the July
5, 2002, Board decision is AFFIRMED IN PART with respect to its denial of
entitlement to service connection for arthralgia of multiple joints,
claimed as a chronic disability resulting from an undiagnosed illness, and
VACATED and REMANDED IN PART for readjudication of the claim for service
connection for a left elbow disability.
DATED: September 23, 2004
Copies to:
Samuel M. Tumey, Esq.
P.O. Box 113
Liberty, MS 39645
General Counsel (027)
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
-
Hello Jody,
welcome to hadit.
I went through the same thing on the USS Twining. 5" mounts.
Do you suffer with any concussion effects from artillery trauma? Depression? Loss of balance? Visual problems, insomnia? Headaches?
The "eighth nerve" can also be damaged by the air concussion.
If your tinitus comes & goes away, theres no need to file . Tinnitus has to be constant in order to recieve a rating.
It is a single rating at this time for"bilateral" tinnitus, of 10%
For hearing loss? There are many offers in the yellow pages, that provide "free" hearing examinations for loss & tinnitus. Some county or state health dept. also offer hearing tests.
Get one & submit it as evidence as well as the C&P they give you. It's good to have several.
They gave me hearing aides, but it doesn't help with normal speech tones. Im constantly misinterpreting what is said. Have to have the wife face me sometimes so I can understand her.
I recieved 0% for the hearing loss.
The adiology clinic at the Spokane VAMC, provides excellent care. Same for the eye clinic & therapy.
-
It ain't easy to nail them down, but it can be done. They flip/flop all over the place & try to stick it to you if they can.
The local hearing is the quickist, as far as getting results.
I would keep your currant POA, untill after the hearing. Request in writing that you want your AL service officer be present.
IF, your still not able to get any help from your service officer(SO) after the hearing, than request the change of power of attorney, (POA)
I've tried many, but prefer the PVA.
Us Atty Biskupic And Va Defied Us Law To Convict Wisconsin Veteran
in VA Disability Claims Research
Posted
fwd from Colonel Dan
US Atty Biskupic and VA Defied US Law to Convict Wisconsin Veteran
News Release: Contact
Michael Leon
Marketing and Public Relations Consultant
<http://malcontends.blogspot.com/> http://malcontends.blogspot.com/
<mailto:maleon@charter.net> maleon@charter.net
<mailto:maleon64@yahoo.com> maleon64@yahoo.com
(608) 270 9995 (home)
(608) 658 4891 (cell)
6/24/2007
<http://malcontends.blogspot.com/2007/06/us-atty-biskupic-and-va-defied-us-l
aw.html> US Atty Biskupic and VA Defied US Law to Convict Wisconsin Veteran
<http://malcontends.blogspot.com/2007/06/us-atty-biskupic-and-va-defied-us-l
aw.html>
http://malcontends.blogspot.com/2007/06/us...va-defied-us-la
w.html
<http://bp1.blogger.com/_zciesOPE2zA/Rn7kVbawiII/AAAAAAAAAHQ/8Ju1Zmzz_Us/s16
00-h/Airman+Roberts+in+1970X.JPG> by Michael Leon
Madison, Wisconsin-In this Karl Rove/Dick Cheney age of politics when the
governmental machinery is so politicized that Richard Nixon seems a
progressive reformist by comparison, it's not surprising to find the
<http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/View
&c=LawArticle&cid=1176455062969&t=LawArticle> United States Department of
Justice ravaging a Vietnam-era veteran diagnosed with Post Traumatic Stress
Disorder (PTSD).
But many veterans charge the peculiar case of US v. Roberts is a disgraceful
miscarriage of justice even by the contemporary swift-boating standards of
the Bush administration.
Post Traumatic Stress Disorder (PTSD)
In June of 1999, Airman Keith Roberts (1968-71) was granted a disability
rating by the <http://www.va.gov/> US Veterans Administration (VA) after a
12-year, excruciating benefits claim process to which the honorably
discharged American veteran from the northern town of Gillett, Wisconsin was
subjected.
Roberts had been diagnosed with (PTSD) years after he witnessed a fellow
airman killed in a gruesome C-54 aircraft crushing death of fellow Airman
Gary Holland in 1969 while on "line duty" at a Naval Air Facility in Naples,
Italy, and later in the same year was assaulted by the Navy Shore Patrol and
forcefully hospitalized.
Roberts believed that negligence caused Holland's death and that the Navy
then covered it up, blaming the dead rookie Holland who could not defend
himself.
The Vietnam-era veteran had no idea while he was gathering evidence seeking
an earlier retroactive date for his successful VA claim, per the advice of a
<http://malcontends.blogspot.com/2007/05/va-document-contradicts-us-atty-in.
html> Shawano (Wisconsin) Veteran's Service Officer, and jumping through
hoop after hoop, that not only were his existing VA benefits in jeopardy but
his very liberty was in danger.
"The process of gathering evidence to prove PTSD disability is extremely
time-consuming," said Sen. Barrack Obama (D-IL) on August 10, 2005 at a time
when the VA was set to review 72,000 PTSD cases, but backed down under
intense pressure from veterans and democrats. "It requires the compilation
of medical records, military service records, and testimonies from other
veterans who can attest to a person's combat exposure."
In fact, the VA claims process is not just time-consuming, but can be so
frustrating that many vets quit the process, or (
<http://ptsdcombat.blogspot.com/#about> especially those suffering from
PTSD) are thrown into fits of rage directed at the VA itself.
Anger is a euphemism for how Keith Roberts now feels about the VA.
Since March of this year, Roberts has been serving a 48-month sentence (and
his family financially shattered) for alleged wire fraud purportedly
committed in his benefits application process with the VA in an outlandish
VA-benefits-turned-criminal-charges case now before the
<http://www.ca7.uscourts.gov/> U.S. Court of Appeal for the Seventh Circuit
(appellate brief due June 29) which Roberts vows to take to the US Supreme
Court, if necessary.
Among the main charges against Roberts are that he fabricated his role
<http://www.uppitywis.org/new-evidence-in-jailed-vet-case-witness-contradict
s-prosecution-> in trying to rescue Holland and lied about his
<http://www.uppitywis.org/more-dismantlement-of-case-against-jailed-wisconsi
n-veteran> friendship with Holland, both charges demonstrably untrue.
Frustration with the VA
Anger, panic and frustration with the VA drove Keith Roberts to phone the VA
Inspector General's office at Hines, Illinois in November 2003 at which time
Roberts spoke with one Special Agent Raymond Vasil.
Roberts accused the VA of "fraud" as the VA was in the process of
determining the date from which his retroactive disability pay was to become
effective. Adjustments and frequent remanding (sending back for
reconsideration) of cases are common VA practice.
It's not hyperbole to say that many veterans have died awaiting appeal of
their cases.
Vasil (who has no professional law enforcement and VA benefit adjudication
experience) disingenuously told Roberts he would look into the fraud
accusation against the VA, but Vasil appears to have had no intention of
investigating the VA, but rather investigated Roberts who was making waves
at the VA amid his angry accusations.
Throughout the VA investigation the Roberts family was subjected to a
smirking, mocking demeanor by Vasil, the man whose investigation formed the
basis of the later criminal indictment.
Said one hostile veteran advocate, "A cop Vasil is not, just an idiot with a
badge."
VA Federal Law
Veteran-advocacy groups deride the delivery of
<http://news.yahoo.com/s/ap/20070623/ap_on_he_me/coming_home_wounded_5;_ylt=
AlJwh8U3PbUK9J46qM8rtAoE1vAI> health care and disability benefits to our
veterans today as just another example of Bush administration incompetence
in administering government services and entitlements to which it is
ideologically hostile, a la FEMA and disaster relief.
The VA, a large department of government growing under the
<http://www.usatoday.com/news/health/2007-06-23-wounded_N.htm> strain of war
and non-existent administration planning for the consequences of war, is
operating under the authority of specific federal statutes-
<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9
3ecd0ec686fc0a&amp;amp;amp;rgn=div5&view=text&node=38:1.0.1.1.4&idno=38>
Code of Federal Regulations (CFR), Title 38, "Pensions, Bonuses and Veterans
Relief."
Title 38 specifically defines and delineates the processing and delivery of
VA benefits.
In fact,
<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9
3ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#38:1.0.1.1.4.2.7
6.263> Title 38 (3.901 Fraud) also specifically defines "fraud" (what
Roberts is accused of engaging in) as a false or fraudulent act committed in
trying to obtain "any claim for benefits under any of the laws administered
by the Department of Veterans Affairs . "
But Keith Roberts was never accused of committing VA fraud, per se.
Roberts' voluminous C-file, or claims file, well documents Roberts
"stressors" that led to his being granted disability benefits-rendering
accusing Roberts of VA fraud out of the question, so the offended Special
Agent Vasil swiftboated the veteran Roberts.
"Keith Roberts was granted a 100% compensation rate for PTSD from his date
of claim. To grant PTSD, we need both a) a current diagnosis and b) a
verified in-service stressor. We found not only a stressor, but an
in-service diagnosis for Airman Roberts," said a source at the
<http://www.visn12.med.va.gov/Milwaukee/> Clement J. Zablocki VA Medical
Center in Milwaukee who e-mailed the
<http://a1135.g.akamai.net/f/1135/18227/1h/cchannel.download.akamai.com/1822
7/podcast/MADISON-WI/WXXM-FM/Lee070607.mp3?CPROG=PCAST&MARKET=MADISON-WI&NG_
FORMAT=talk&SITE_ID=2104&STATION_ID=WXXM-FM&PCAST_AUTHOR=Madison> Lee
Rayburn radio show in Madison after a broadcast of a show on Roberts.
In other words, to an experienced and objective VA civil servant, Roberts'
claim was an air-tight.
But Roberts was to become a cautionary tale for Vietnam-era veterans who
apply for PTSD disability benefits and carp about the slow and often hostile
nature of the VA bureaucracy after Special Agent Vasil's investigation of
Roberts in an as yet unknown manner came to the attention of the US
Department of Justice and <http://www.usdoj.gov/usao/wie/> US Atty Stephen
Biskupic (Eastern District of Wisconsin).
Biskupic, not known for his
<http://www.uppitywis.org/biskupics-target-in-georgia-thompson-case-jim-doyl
e> prosecutorial discretion and hungry to augment his win/loss record, took
over the case and secured criminal indictments against Roberts in 2005.
Special Agent Raymond Vasil
After Roberts contacted the VA Inspector General's office and spoke to
Vasil, Vasil reportedly became upset with Roberts making the fraud
accusations and seized Roberts' VA claims file from the VA regional office
in Milwaukee, according to a document in Roberts' VA file dated Dec. 12,
2003.
What appears to have transpired is that Roberts hounded the VA to
distraction and when he accused the VA of outright fraud, Vasil retaliated
against this Vietnam-era veteran for seeking retroactive PTSD-related
disability benefits-occurrences by Vietnam-era veterans that are also
politically unpopular with the
<http://www.epluribusmedia.org/features/20060206PTSD_pt3.html> American
Enterprise Institute and the
<http://thinkprogress.org/2007/02/15/aei-bush-white-house/> Bush
administration.
It is in this context that Roberts was reportedly argumentative and
insulting to the VA, accusing the VA of fraud.
"[T]he only reason Airman Roberts was ever prosecuted was because he was a
'belligerent ass' who kept insisting that he get paid back to discharge. He
was demanding an appeal in Washington," said the source at the
<http://www.visn12.med.va.gov/Milwaukee/> Clement J. Zablocki VA Medical
Center in Milwaukee who e-mailed the
<http://a1135.g.akamai.net/f/1135/18227/1h/cchannel.download.akamai.com/1822
7/podcast/MADISON-WI/WXXM-FM/Lee070607.mp3?CPROG=PCAST&MARKET=MADISON-WI&NG_
FORMAT=talk&SITE_ID=2104&STATION_ID=WXXM-FM&PCAST_AUTHOR=Madison> Lee
Rayburn radio show in Madison in early June about the Roberts affair. "I'd
have to say that you guys are TOTALLY (uppercase in the original) right
about Roberts' conviction being bullshit ..."
On August 16, 2004, the VA halted the benefits being paid to Roberts based
upon Vasil's investigation; Roberts appealed the decision on September 14,
2004, and was indicted seven months later.
US Attorney Steven Biskupic
As Roberts' appeal was being adjudicated in the VA, US Attorney Steven
Biskupic stepped in and subsequently secured an indictment on mail fraud on
April 26, 2005 under
<http://www.usps.com/websites/depart/inspect/usc18/mailfr.htm> Title 18
United States Code 1341 (mail fraud).
But the indictment on mail fraud involved no investigation from the
<http://www.usps.com/postalinspectors/fraud/welcome.htm> Postal Inspector's
office, as is usual in mail fraud cases.
"Biskupic really pissed in someone's pool when he indicted on mail fraud
with no investigation from the Postal Inspector," said a source close to the
Roberts' defense network.
Without explanation from Biskupic's office, the mail fraud indictment was
superseded some four months later in September 2005 when Biskupic secured an
indictment on wire fraud under
<http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/63/secti
ons/section_1343.html> Title 18 USC 1343; this time with no input from the
FBI or US Treasury Department, as is usual in wire fraud indictments.
The only law enforcement agency used in the investigation was the VA
Inspector General's office, not a professional law enforcement agency, but
an office that operated vindictively in the person of Special Agent Vasil
and was run at the executive level by Secretary Jim Nicholson, a former
Republican National Committee chairman with no veteran advocacy experience,
in an administration taking its cues from the
<http://www.dartcenter.org/articles/headlines/2004/2004_03_11a.html>
veterans' benefits-hostile American Enterprise Institute scholar, Dr. Sally
Satel.
Title
<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9
3ecd0ec686fc0a&amp;amp;amp;rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#
38:1.0.1.1.4.2.76.267> 38 Code of Federal Regulations, Section 3.905 (a)
Jurisdiction)
The VA insulates and protects veterans by establishing a layer of procedure
before a veteran can be denied VA benefits, much less criminally prosecuted
for fraud in seeking benefits.
The Title
<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9
3ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#38:1.0.1.1.4.2.7
6.267> 38 Code of Federal Regulations, section 3.905 (a) Jurisdiction)
statute reads: "At the regional office level . the Regional Counsel is
authorized to determine whether the evidence warrants formal consideration
as to forfeiture."
Robert Walsh, the appellate attorney for Roberts and a former VA staff
attorney, blasted the criminal prosecution as well as the VA denial of
benefits for its lack of review by VA counsel, per Title 38.
"The local VA Inspector General going directly to the U.S. Attorney without
any review by VA attorneys appears to be unprecedented and is a violation of
(Title)
<http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=d741c52f7d5b47cff9
3ecd0ec686fc0a&rgn=div5&view=text&node=38:1.0.1.1.4&idno=38#38:1.0.1.1.4.2.7
6.267> 38 Code of Federal Regulations, section 3.905.
"The U.S. Attorney prosecuting a case such as this without a proper
investigation by the F.B.I. or U.S. Treasury is outrageous. It is contrary
to the Department of Justice guidelines for such cases. Failure to follow
those well-thought out procedures is unwise. So we arrive at this bizarre
outcome.
"When Congress passed the
<http://www.vetapp.uscourts.gov/about/History.cfm> Veterans Judicial Review
Act which became law in 1988 they created a special court to review disputes
over veterans' benefits, the U.S. Court of Appeals for Veterans Claims
(CAVC). No other court was given jurisdiction over these claims, and that
court has not yet ruled on the reduction of benefits suffered by Mr.
Roberts. If the CAVC rules in favor of Mr. Roberts he will be in prison
convicted of fraud for accepting benefits payments that he is fully and
legally entitled to."
Biskupic has not spoken publicly on why his office had not awaited the
adjudication of the benefits process before seeking indictments for alleged
fraudulent statements made by Roberts in his claims, and why Biskupic
avoided Veteran Fraud, and indicted on mail fraud and then wire fraud.
Title 38 Code of Federal Regulations, Section 3.905 (b) Fraud
The VA is also required, by federal statute, to notify a veteran if he or
she is declared to be fraudulently presenting information to the VA.
The Fraud statute reads:
(b) Fraud or treasonable acts. Forfeiture of benefits under §3.901 or §3.902
will not be declared until the person has been notified by the Regional
Counsel . of the right to present a defense. Such notice shall consist of a
written statement sent to the person's latest address of record setting
forth the following:
(1) The specific charges against the person;
(2) A detailed statement of the evidence supporting the charges, subject to
regulatory limitations on disclosure of information;
(3) Citation and discussion of the applicable statute .
Roberts was never notified by the Regional Counsel that he was suspected or
accused of engaging in fraud.
Said a source close to the defense network: "The VA statute requires the
criminal justice system to stay out of the matter until a FINAL
administrative agency decision is in place. That will not happen at the VA
until Roberts is done at the Supreme Court. The VA reduction of benefits is
under appeal, and will be for some time. So, if they believe in the fraud,
why the rush for Biskupic to jump in? Keith is not a killer posing a danger
to the public; he is a veteran who simply will not be getting his benefits
that he deserves."
Roberts was caught in a situation where he angered the VA Inspector
General's office which knew that Roberts could never be convicted of VA
fraud, so they summarily denied his benefits, and then somehow communicated
the case circumstances to US Atty Biskupic who charged Roberts with postal
fraud and then with wire fraud using the denial of benefits (under appeal
per federal statute) as evidence of criminal fraud.
So before and after Special Agent Vasil was scheming to charge Roberts with
fraudulently presenting his VA claim, and Roberts' liberty became
endangered, the VA never notified Roberts through the Regional Counsel or
otherwise that his forfeiture was asserted by the VA Inspector General to be
based upon fraud.
US Atty Biskupic never addressed the statutory imperative that Roberts
should have been so notified by the VA Regional Counsel during the
investigation, the indictment and prosecution.
This would appear to raise serious due process considerations that may
result in the overturning of Roberts' conviction by the Seventh Circuit,
known for its intellectual heft, though leaning to the right, aside from the
fact that Roberts is innocent of not being at the scene of his friend
Holland's death.
Criminal Trial
The criminal proceedings included the misrepresentation of the laws and
regulations governing veterans' disability benefits claims procedures and
the military service of Roberts to the jury.
The defense claims that the government withheld hundreds of photographs and
documents in their possession from the defense which would have proven that
Mr. Roberts did not commit fraud.
Roberts was forced to defend himself in federal court by proving that he was
present at his duty station on the flight line in Naples, Italy on February
4, 1969 when Airman Gary Holland was killed while performing maintenance on
a C-54 aircraft.
The prosecution produced no witness who testified that Mr. Roberts was not
present for duty on that day.
The prosecution produced no witness or document which refuted that the
aircraft hanger where Holland was killed was Roberts' duty station.
Several witnesses testified that general quarters was sounded, as Roberts
claimed. The prosecution produced no evidence that Roberts failed to respond
to general quarters.
In fact, Roberts received a "
<http://malcontends.blogspot.com/2007/05/military-document-corroborates-jail
ed.html> Special Enlisted Personnel Performance Evaluation" (the military
equivalent of a pat on the back for the then-young airman) two days after
the death of airman Holland.
The position of the VA and the US Atty Biskupic is that Mr. Roberts was not
present, and therefore his VA disability claim is based on fraud.
"Where were you on February 4, 1969? Can you prove it?" asks Delores
Roberts, Roberts' wife.
Questions for US Atty Biskupic
It is clear that the VA violated its own statuary mandates, but questions
remain for the US Atty's office that prosecuted Roberts.
Did the Secretary of the Veteran's Administration give US Atty Biskupic
authorization by delegation of authority to prosecute Keith Roberts before
the exhaustion of his administrative remedies under Title 38 CFR?
Did US Atty Biskupic know that the Board of Veteran's Appeals had determined
in prior decisions that Roberts' statements could not be used, as a matter
of law, to verify a stressor in order to grant service connection for PTSD?
Did US Atty Biskupic know that the VA claim process is supposed to be
non-adversarial?
Where in Title 38 does it state that the DOJ can take jurisdiction away from
the Veterans' Administration before the VA has completed its review of the
veteran's benefits, including the review in the Court of Appeals for
Veteran's Claims?
With whom at the DoJ and the VA did Biskupic communicate before arriving at
his decision to seek indictments?
Roberts and his family await answers and justice.
Cases to be adjudicated:
· U.S. v. Roberts, U.S. District Court for the Eastern District of
Wisconsin, Docket 05-CR-118
· U.S. Court of Appeals for Veterans Claims docket 05-2425
Legal questions and legal comments can be e-mailed to Robert Walsh at:
rpwalsh@sbcglobal.net.
###
Michael Leon
Marketing and Public Relations Consultant
http://malcontends.blogspot.com/
maleon@charter.net
maleon64@yahoo.com
(608) 270 9995 (home)
(608) 658 4891 (cell)