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The Corpsman

Cue As A Weapon

Question

CUE AS WEAPON OF RETALIATTION TO TAKE AWAY BENEFITS

Well thank you for letting me be a part of your forum. I have nothing to hide and everything to gain by this fellowship with you. As you may or may not know I filed my case in Federal District Court here in Chicago on Sept 17, 2007. Larry picked up the story and posted it on the "Watchdog" several days later. The case has nothing to do with benefits other than they were used as a weapon against me. They used CUE to take away the benefits in question. The court case is in itself a civil rights action ( Bivens Action under the 1st Amendment) taken under the pretext that the three individuals named in the suit conspired and orchestrated the severance of my 1151 awarded benefits (awarded over 2002 to 2004) in retaliation for my activist stand against two senior members of the stated Service Organization and the Service Center Manager of RO Chicago in 2006 in violation of my 1st Amendment right of protected speech. After my letters of complaint went out it took VA less than two months to sever my rating of 100% down to 60%. Much has happened since I filed the case, but we still have a long way to go to win this thing.

Here is the news item as it appeared in September 2007

_________________________________________________________

ABC 7 News (Chicago)

Sep 19, 2007

September 17, 2007 - A disabled Vietnam era veteran says his disability benefits were withheld by administrators after he spoke critically of the handling of benefits claims by the Veterans Administration and the group Paralyzed Veterans of America.

In a lawsuit filed in federal court Monday, Samuel L. Hennon says he is a Vietnam era veteran of the U.S. Navy and, since his discharge in April of 1971, he has received disability benefits "associated with injuries from his military service."

Hennon also has received benefits -- under the Federal Employment Compensation Act (FECA) -- as a result of the effects of a flu shot he was given in 1999, "in association with his duties as a registered nurse for the Veterans' Administration," the suit says. Hennon has been a registered nurse for the VA since 1972. The flu shot he received in 1999 resulted in his contracting Guillan Barre Syndrome -- a nervous system disorder which can increase in intensity until the person is almost totally paralyzed -- "and other related ailments preventing him from continuing in his employment."

Hennon's service-connected disabilities were submitted for review and occasional update by defendants Bo Rollins, Director of Field Services, Paralyzed Veterans of America (PVA), and Charles Ed Rogers, National Field Director for PVA, the suit says. At the same time, Hennon has "acted as a representative and advocate for other veterans in the obtaining of benefits to which they are entitled," according to the suit.

"In connection with his advocacy on behalf of other veterans," Hennon says he "has been a vocal critic of the handling of veterans' benefits claims by both the VA and PVA. As he assisted more veterans in their claims and expressed increased criticism of the handling of those claims by the VA and PVA, defendants began to interfere with the updates of benefits [he] received based on his service-connected disabilities and [his] FECA benefits."

The suit alleges Rollins, Rogers and Michael Stephens, Veterans Service Center Manager for the VA, have "acted to withhold increases in benefits to which [Hennon] was entitled because of his advocacy and criticism." The suit also claims Hennon has "been denied increased service-connected disability benefits and FECA benefits be defendants' actions to deprive him of his rights to those benefits."

Since his criticisms of the VA and PVA are protected speech, the alleged actions by Rollins, Rogers and Stephens are a violation of Hennon's first amendment rights, the suit contends.

The suit seeks unspecified damages.

_________________________________________________________________

Now they used CUE in this way. I had been employed as a nurse for the VA since 1979 (typo in the news item). When I was retired disabled I had served the VA and veterans for 22 years. I was completely devastated physically and mentally by a very rare and bazaar autoimmune reaction to a VA administered flu shot. This was my 26th flu shot and I had no idea or warning that such a reaction could and would take place on October 22, 1999. I was service connected and receiving care from VA for my service connected disabilities since 1984. VA was my primary care giver for these medical conditions. When the VA offered flu shots I got one from my clinic just like anyone else. I went to the service organization at the urging of some veteran friends who had spinal cord injuries (I have Life Memberships to PVA, DAV, AMVETS and NAUS). A claim under 1151 was filed on my behalf by the service organization named in the suit. By 2004 all was settled and after an RO administrative review the award including 10% for IU was awarded to me. But the 1151 only included a tenth of the vaccine related disabilities, the rest were deferred. Now some people have said you had 100% why rock the boat. Well there were supplemental ratings that were never considered, such as incontinence of urine and involuntary bowel movements, restless leg syndrome the increased psychological damage done by the total disability and many others including the loss of the creative organ and the spinal cord damage done by the autoimmune reaction; well documented by VA physicians and private physicians. This of course meant that private insurance would pick up the bill for these conditions; so I was paying for what they had accepted as their responsibility as the giver of the flu shot and my primary care giver. To file this claim was my right as a veteran injured in the care of a VA hospital. The VA made its award on what they considered to be the diagnosis for my leg weakness only (Guillain Barre Syndrome).

At the same time, under federal statutes covering federal employees, a claim was filed with the US Department of Labor (FECA). Now this is not like concurrent receipt. There is no law that states that dual compensation was illegal unless it was for the same condition. I had two different diagnoses from two different Government agencies. I won the FECA claim and received my compensation with the help of Rahm Emmanuel, who was my congressman at the time. The Department of Labor physicians made a different diagnosis than the VA physicians. After all was said and done I had had 23 different neurological opinions with the only consensus being that what happened to me was caused by the flu shot. Yes, I know this is very confusing for you. There is no section in the VA Disability standards for a reaction to a flu shot. Section 1151 was my only option here and finding a lawyer to take the federal tort was next to impossible at that time. While the VA and DOL were sorting the whole thing out, I was fast approaching foreclosure on my house and bankruptcy, as I was not receiving any benefits from either agency. Disabled, the VA demanded that I return to work, the DOL said that VA must accommodate my disabilities by providing me with a desk job at a special workstation made especially for me and provide mobile transportation at a cost of close to $100,000. VA provided me with the transportation and the desk job, but not the workstation claiming the accommodation was too excessive. VHA and DOL decided to retire me disabled and my records were sent to the US Office of Personnel Management were their physicians retired me with yet a third diagnosis in 2003. The BVA completed and granted the 1151 in 2004 and then using CUE took 40% away from me in 2007. This then prompted the lawsuit. Their wording was this and I quote: "Because you received the flu shot at Hines as an employee and not a veteran seeking treatment from the VA under any law administered by the Secretary, you do not qualify for compensation under 38 USC 1151 for disabilities resulting from the flu shot and the grant of compensation for these disabilities by prior rating decision dated October 4, 2002 was clearly and unmistakably erroneous and therefore, we must severe service connection for this condition."

So, for the purpose of this flu shot, my 26th, I was an employee and not a veteran. How do you strip me of my military service when you recognized my time spent in the military, you give me services for my service connected disabilities, and give me a 10% hiring preference for my disability? Why are the flu shots not listed in my employee health file, because they are in my veteran medical records! Where is my employee health file? Hines says that I either stole it or it is lost (this accusation is in my C-file)

All the while I was fighting for better care, full funding for VHA and helping other veterans with their claims as much as I could. I was the founder of the Veterans Voting Block, The Illinois Chapter and was broadcasting on internet radio WVBSR. I was a big time activist in the Chicago area, belonging to Veterans for Unification here. The VA knew me long before this as I was part of the biggest settlement awarded to any Veteran to that date. The award was made to a young US Army vet who had been cut in half by a tank in Germany. His case came to Federal District Court for VA's failure to provide necessary equipment for him and his father to take care of him at home. As a VA Emergency Room nurse I discovered the situation and on my own gave him the proper equipment needed to help him prevent bladder infections that would have inevitably given him sepsis and possibly cause his death. When he got the equipment he got a lawyer and sued the VA and won. Some time after that an upper management type person stopped me in the hospital hallway and retorted that I had cost the VA a lot of money! I responded with a "what are you talking about?" His reply was the name of the veteran that I helped. I said to him…"You don't think that this vet deserved the best that we can give?" He had no response. I cursed him and kept on my way, just doing my job. That was about three years prior to my disabling flu shot. So I was no stranger to the VA.

I am a spinal cord injury patient, I am essentially a walking paraplegic. All of this by reason of the flu shot given at Hines Hospital. Since my retirement I have received treatment for these conditions from Hines. But the BVA will not recognize the disability.

I went to Regional Office Chicago and requested to view my C-file. I was told that the file was not at the facility. I asked where my C-file was and was told that it had been sent to Washington D.C. On whose authority was this done was the next question. I was told, "by the Service Center Manager." I placed a written request to see my file as soon as it was possible. Needless to say I stopped representation by the service organization that was mentioned in the suit and went to another to be represented. While waiting to see my new representative my request to see my file was granted and an appointment was made. My wife and I and a VA clerk viewed the file in a private room. The file must have just returned to Chicago because there were all kinds of E-mails and post it notes still in the file. My wife and I took notes and recorded specific documents to be copied and given to us. We were told that this would be done by mail. A copy of that request for documents was given to us with a VA date and time stamp. To this day it has never been acted upon by the VA.

We discussed an appeal of the 1151 decision which was never suggested by the previous service organization with our new representative. At the same time I went to see the lawyer of that Army vet I help years earlier to discuss the letters of complaint and the swift action taken by VA. We showed both individuals the request for documents. The service rep went somewhere and came back with my C-file. We went through it together with the request for documents. The documents were no longer in the file. The post it notes where gone. The file had been sanitized (shredded?). Now here is the kicker…the new rep and the lawyer without contact with each other said that my decision had been written by the General Council in Washington. Neither recommended filing any appeal.

The rep said to me that this flu shot must have caused some effect on your service connected anxiety disorder…document it and we'll file a claim for an increase to70% and then file and get your IU back. The lawyer said "don't appeal because VA is setting a legal trap for you." "They want you to appeal and have the appeal process come to their court (Veterans Court of Appeals) and then, they have got you." What do I do? We called them out into Federal District Court where we can even the playing field for me. The law suit was filed.

Now the meat and potatoes, the law suit was filed. The first court date was used to acquaint the judge with the case, establish representation, set a discovery date and set a date for trial. This was simple enough for me to comprehend, never having done this before. It has been a year and a half now and there is no date for discovery and no trial date set. We are still dealing with pretrial motions, one of which I have had to appeal to the US Court of Appeals. This motion is to drop VA from the case and although the trial judge in her decision on the motion appeared to sympathize with me she turned around and ruled against me, thus causing the appeal. We now must wait for the Appellate Court to rule on this. I am still confidant that we will prevail in this.

At that first trial date the US Attorney appeared and announced that he was representing all three defendants named in the suit. They had a court stated time in which to answer the complaint. When that day came, the Assistant US Attorney announced to the court that they were only representing the VA and produced the VA response. The lawyers for the service organization did not appear and they were rule in default. Now do you believe that the high powered lawyers of the service organization were caught off guard; or do you believe that VA told them to fall on the sword, thinking I would be satisfied with the judgment against them while VA slipped away out of the suit altogether? Tell me the answer to this question. Who benefits from a review of a disability case that 100% has already been awarded? Not the veteran and not the service organization; only the VA benefits from the review, if disability is taken away. The service organization may have initiated the issue, but I was in the crosshairs of this RO Service Center Manager long before the letters of complaint and this can be proved. The service organization was used by the VA as a cover for what they had in store for this veteran activist (as one of the missing notes from the C-file was "look at the clients website." It was also, I think, told to take the blame for the retaliation. We have not asked for the judgment against the service organization even when the judge told my lawyer he could have it anytime he ask for it. This was too easy! It is discovery that the U S Attorney is trying to prevent from happening. Wonder why? Maybe because there is a clear case of document mishandling that the government does not want to go public. VA must not be seen as violating a veteran's Constitutional rights as a tool to sever benefits. The true relationship of VA to the service organization is another concern of the US Attorney and his VA client.

Who is my adversary in this case? U S Attorney Patrick Fitzgerald, one of the best that the Department of Justice has to field in such an important case. So we are waiting on a ruling from the US Court of Appeals on the affirmative motion of the trial judge to drop the VA employee from the case. The suit is half in the lower court and half in the appellate court and so we wait ready to appeal the next ruling, if need be. Make no doubt about it VA is the culprit here in this case and we can not give up. They are scrambling here. I wonder, if the new Attorney General has had the time to review the case.

Sincerely,

Samuel Hennon

The Corpsman

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If anyone has any questions or comments or criticisms, They will be received with respect. I will try to the best of my ability to answer any questions you might have. I will receive your comments, suggestions or criticisms with respect.

Sincerely,

Samuel Hennon

The Corpsman

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Interesting and most surely very distressing to you-

I am stuck on something you said-

I filed FTCA and Sec 1151 and the VA admitted to causing my husband's death,settled with me and gave me DIC.

He was VA employee when the malpractice occurred.He was also an outpatient of the same VAMC.

The fact he was employee was never an issue except for when I raised the fact that the M21-1 Handbook of 1988 (when the VA first malpracticed on him)Specifically states that 'employees' will be medicated or treated with eye to when they can return to work- (more or less-the hell with the reason they were treated)The VA gave him sudafed for a heart attack he had at the VA while working there and 3 days off to cover from a 'sinus infection'.The med recs revealed the heart attack.

I know a VA employee non vet who slipped on a piece of pie at the VA and the ER VA doc said for 2 weeks she had simply sprained her ankle.After she could not even walk and went to a real doc-she learned she had broken her ankle and it was healing wrong.

She received FTCA settlement but as I said- was not vet, nor OPT.

Yet- it does appear here that the 1151 should have covered you.

"Because you received the flu shot at Hines as an employee and not a veteran seeking treatment from the VA under any law administered by the Secretary, you do not qualify for compensation under 38 USC 1151 for disabilities resulting from the flu shot and the grant of compensation for these disabilities by prior rating decision dated October 4, 2002 was clearly and unmistakably erroneous and therefore, we must severe service connection for this condition."

"But the BVA will not recognize the disability."

Can you give us the Citation and Docket number for this case?

"So, for the purpose of this flu shot, my 26th, I was an employee and not a veteran. How do you strip me of my military service when you recognized my time spent in the military, you give me services for my service connected disabilities, and give me a 10% hiring preference for my disability? Why are the flu shots not listed in my employee health file, because they are in my veteran medical records! Where is my employee health file? Hines says that I either stole it or it is lost (this accusation is in my C-file)"

Maybe they shredded it- I am sure you are aware of the VA shredding fiasco that made internet news.

"Because you received the flu shot at Hines as an employee and not a veteran seeking treatment from the VA under any law administered by the Secretary" etc etc etc-

they have a Handbook for Employee medical treatment.

I would think the Secretary administered the laws that formulate the handbook (M 21-1 VA practitioners version)which the VA publishes.

Didnt the VA send out press releases encouraging all vets to get the flu shots?

How can the VA state that you were not being treated as a vet-regardless of whether you were employee or not?

Your lawyer has a lot to work with here.

Maybe he can call a CUE on their Cue.

Why arent you pursuing a judgement against the service org?

"We have not asked for the judgment against the service organization even when the judge told my lawyer he could have it anytime he ask for it. This was too easy! It is discovery that the U S Attorney is trying to prevent from happening. Wonder why? Maybe because there is a clear case of document mishandling that the government does not want to go public. VA must not be seen as violating a veteran's Constitutional rights as a tool to sever benefits. The true relationship of VA to the service organization is another concern of the US Attorney and his VA client."

They have malpractice insurance.I sued the DAV rep I had.

And I filed a major OGC complaint against 5 individuals from a state vet's org- 3 are gone and one was recently demoted.

You have plenty of recourse here-I just hope you have a good lawyer- BTW who is your lawyer?

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I do not understand how the VA thinks it can take away a Veteran status cause the Veteran is an employee?

Good Luck and I hope that you prevail.

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My question is - prior to the reduction --

did you recieve a proposal to reduce ?

carlie

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Remember buoys and gulls:

The Department of Veterans Affairs is a non-adversarial organization, here for only one purpose and that is to help the veteran.

uhhhhh, yeah, right, certainly, fer sure, gotcha, no problema.................si'

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