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First Class Petty Officer
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Lemuel last won the day on August 10

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About Lemuel

  • Rank
    E-5 Petty Officer 2nd Class

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  • Military Rank
    E-6 Hospital Corpsman 1rst Class
  • Location
    Disabled at home
  • Interests
    Organic Brain Syndrome activist since 1987

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  • Service Connected Disability
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    Activist for Organic Brain Syndromes

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  1. Buck, I'm hoping to get the 10% changed. Safety concerns as I mentioned cut out a lot of potential employment creating a "Definite Industrial Handicap" as stated in other sections of the Rating schedule rising to a 30% disability rating level. Will keep you posted on the 10th Circuit and CAVC Decision.
  2. Tinnitus is a "subjective" complaint that is corroborated by high frequency tones in the Audiogram. If a person cannot hear high frequencies or often pushes the button for having heard the high frequency tone when there is none. As a subjective complaint there is no definitive test only the indication that the complaint is probably true. My tinnitus is constant and severe enough that I cannot pass hearing exams for fork lift operators licenses or other equipment operating permits that require you to be able to hear the high frequency beeps of another forklift or vehicle backing up, etc. Because it eliminates a lot of employment opportunities that a person might otherwise be able to get I'm asking that I be rated at 30% as the standard for "a definite industrial handicap." Tinnitus is not correctable by a hearing aid that magnifies sound even for the high frequencies without doing so for low frequencies. The tinnitus masks the high frequency tones especially where there are other background noises. Have absolute proof that is the case. An EENT Consult while I was in the Navy after failing a forklift operator's hearing test. Missed the backing up beep several times without realizing it.
  3. My arbitrary and capricious issues. (I know Berta understands as stated what an arbitrary and capricious act is so going beyond saying mine are similar to her issues is stated for Sailorman) 1. Disappearing evidence. a. Proof in the RBA that 8 months of Spinal Clinic OPTR should be there but aren't. (spinal disc disease claim secondary to MVA caused by seizure) The appearances are that evidence was stripped from the record leaving some evidence behind that it exists. b. Proof in the RBA of 5 months of Seizure Clinic OPTR of confirmed partial and complex partial seizures (atypical absences seizures) treated with Tegretol which according to the 1990 PDR wasn't supposed to be used for atypical absence seizures or for anyone with a sensitivity to amitriptyline which also has been removed from my record. The Pharmacy Record shows the change from amitriptyline to Prozac but the notes and entries of the sensitivity reaction are not in the C-File. 2. Inability to get a copy of the Archived Medical File. FOIA issue 3. Failure of the VA GC to obtain the Archived Medical File to settle the RBA Dispute. 4. Failure of the AOJ to certify or address my raised CUE and lack of assistance issues to the BVA. 5. Denial by the Board for Correction of Naval records that I have subtle anosognosia which is defined as being unable or unwilling to recognize handicaps or lack of skills. Think of trying to get the car keys from someone who has had too much to drink except that is transient and goes away with sobering up. From conscious side anterior temporal lobe brain damage or subconscious side mid parietal brain damage you never sober up. And seizure states make it worse. 6. Using unqualified examiners that declare disabilities non existent. The combined PA examination and rating decision claimed that my tinnitus was not service connected. I was denied a forklift operator's permit 9 years before my finale discharge from the Navy at the Great Lakes Naval Hospital because of my tinnitus which is clearly in the record. The denial didn't address the issue claimed. The tinnitus was granted as a CUE in 1992 but dated from 1989 instead of 1974. 7. Failure to provide the base data for reports. EEG tracings for a second opinion. Radiographic images to obtain an etiology statement which is supposed to be provided by the C & P examiner or the Rating Officer. The Medical examiners are reportedly not supposed to make such statements and leave them for the Rating Officer who is most frequently not qualified to make such determinations. 8. Closing of a claim/appeal when I was in a period of having to travel. I would notify the DRO when I was not going to be available and when I was. He would schedule a hearing after receipt of a notification letter for the time which I notified the DRO I would be out of state or out of the country. He did this two times and scheduled a third after I had moved notifying him I the date I was moving to DC and requesting the hearing move with me as it had from LA to Denver for Denver to have it. And then closed the appeal. 9. Making me travel to Japan from DC because I listed it as my permanent address while using a temporary DC mail box address for a C&P exam that couldn't be done in Japan. (The military was sending their personnel to Tripler in Hawaii for the type of exam needed and no longer had the capacity in Japan. The Embassy couldn't locate an English Speaking examiner to do a TBI exam) So, yes mine are similar to Berta's. And I'm sure Sailor man is experiencing some of the same. Otherwise it wouldn't be necessary to get a remand.
  4. The eBenefits site has been down also. Probably related. May be related to the Health Division's problem with "Blue Button" records. Berta, Do you know if there is any access to a veteran's "Evidence Center" file which I presume is the new "C-file" since we have to send all evidence to our assigned Evidence Center first. Problem is we can't verify something was received and filed without access like we used to have by getting an appointment to review our file at our VARO. Or perhaps someone knows the proper route. It isn't published. Perhaps go to VARO and sit down at a computer after someone has pulled up your file to review it. Nice to be able to find a way to see what is happening. VARO Denver doesn't have qualified TBI/PTSD examiners except in Golden Colorado. And, though qualified, they are doing abbreviated examinations not following protocol. I suspect budget cuts have made that the rule around the country.
  5. I'm on my third remand for an examination now. And I didn't read the decisions carefully or the responses from the AOJ. My filing is against the AOJ Agency decision because they were refusing to certify the issues I raised to the BVA. The BVA wouldn't consider issues not certified which made the issues a "finale decision." The CAVC wouldn't consider issues not considered by the BVA. At the CAVC 17-2990 the Clerk's Orders were unable to pry the evidence from my Health Division Medical Treatment Records so the Dispute with the Record Before the Agency was going nowhere because of the obfuscation. I have no idea how the Federal Court of Appeals is going to rule because of SOL considerations. I may have to wait until a ruling by the CAVC stating they couldn't consider the issues and appeal in a timely manner to that ruling. But I think I have a case under the FCA Jurisdiction for "arbitrary and capricious acts." So Berta is right. Read everything carefully and compare it to the facts. I had an appeal closed because I couldn't get the evidence from the Health Division to support my claim. Three hearings were scheduled after receipt of my letters notifying the AOJ that I would be out of the Country for a time during the time I was out of the Country and unable to receive the notices of the Hearings. On the last hearing, I had ask for the Hearings location to be moved to DC where I was moving. The hearing was scheduled after receipt of the letter by the DRO notifying that I would be in DC and sent to a 2 year old address. Then the Appeal was then closed by the DRO because of my failure to appear. And I've been unable to even get the arbitrary and capricious closing considered as an issue of abuse of power. The DRO could easily have substituted my hearing time to someone after me and scheduled my hearing when I was available but didn't. Just used the opportunity to clear his desk. And the DRO that closed the Appeal wasn't actually the DRO of the AOJ that the Appeal originated in. So there was no reason to not transfer the Appeal with me to VARO DC as it had been transferred from VARO West LA to VARO Cheyenne/Denver.
  6. I think you are in no man's land. I'm assuming Grenada and U S Denials since. PTSD was already being looked at in 1984. The intake on my first visit to the LA Downtown VA Clinic stated I said I thought I had Vietnam PTSD. What I remember saying was that I felt weapons familiarization pre deployment and my tour had me looking for a gun when I was outnumbered instead of just going in an all out fist attack on the one offender in front of me. So, from your earlier post, I assume you were threatened with a Section 8 Discharge, existing prior to service that, though untrue, would cut you out of any VA help. At least that is the time frame you give. I just found my 1965 EENT consult after I was denied a Navy Forklift Operator's Permit because of tinnitus. That makes argument for a "Definite Industrial Handicap" because of the removal of employment opportunities for safety concerns. At least that is the point I'm arguing for 30% on tinnitus from a CUE in my 1974 "hearing loss" residuals claim. Sec Nav is currently looking at TBI/PTSD bad paper discharges. I'm arguing it should be applied to our difficulty in life getting and maintaining employment. Will try to keep you posted.
  7. You can appeal to the Federal Court of Appeals for your district under three circumstances. Clear and unmistakable error, arbitrary and capricious action (that hamster wheel if the Agency of Original essentially makes the same denial), and failure to assist if as in my case the VA Health Division didn't supply repeatedly requested evidence (such as radiographic film or other data upon which reports have been made without an etiology opinion). Actually that third falls under the second but I purposely stated it as a third to demonstrate what arbitrary and capricious acts look like. Comer v Peake: "We have jurisdiction pursuant to 38 U.S.C. § 7292." Cook v. Principi, 318 F.3d 1334 (Fed. Cir., 2002) “There are, however, two statutory exceptions to the rule of finality. First, pursuant to 38 U.S.C. § 5108, the Secretary must reopen a claim "f new and material evidence [regarding the claim] is presented or secured." Second, a decision "is subject to revision on the grounds of clear and unmistakable error." 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board). These are the only statutory exceptions to the finality of VA decisions.” It takes a $500.00 filing fee or a Forma Paupers claim to file a "Petition to Review" at the Federal Court of Appeals. The administrative decision is supposed to be a finale decision but the "hamster wheel" provides the arbitrary and capricious mode to Petition a Review of an Agency Decision. Attached are two Petitions I filed with the 10th Circuit, the Clerk's Orders in response, and my responses in draft form to date to the Clerk's Orders. Just because I filed and responded to the Clerk's Orders doesn't mean it will get a hearing before the Court. Have to wait to see what the Respondent comes up with in response to the Orders and then reply to that searching their case citations for opposing citations and relying upon Section 4 of the 14 Amendment, the 5th Amendment holding that "Time of War" and "Public Danger" means the inability of the Courts in their Jurisdictions cannot function not "on active duty" as has been held previously under the Article I citation without seeing Article 5 as limiting the inability to get a 7th Amendment District Court Jury Trier of Fact to get off that hamster wheel. I'm delaying filing although I'm almost finished so that the Respondents won't have my Briefs to work from for their initial required Briefs. As you can see, I'm arguing finality from my age of 77 and "arbitrary and capricious acts" depriving me of a prompt access to the CAVC for a decision at that level which could be then appealed to the FCA if necessary. I'll try to remember to post on this thread the results as they come in. 20180914 FILED BCNR pet with clerk ltr.pdf 20180914 FILED BVA review c ltr.pdf 20180917 10th Order BCNR review.pdf 20180918 Clerk Order BVA review.pdf 20181001 10th Brief review BCNR tolling.pdf 20181001 Brief BVA 20170511.wbk.pdf
  8. I think you are in a no man's land with the VA. I'm assuming Grenada and U S denials since. PTSD was already being looked at in 1984. The intake on my first visit to the LA Downtown VA Clinic in 1983 stated that I said I thought I had Vietnam PTSD (which was being researched at that time). What I remember saying was that I felt weapons familiarization pre deployment and my tour had me looking for a gun when I was outnumbered instead of just going in an all out fist attack on the one offender in front of me. (When I was in an out of control, altered state of mind, berserk state. Night mare like and memory of the event is like a nightmare with facts not square to possible reality of places and time) So, from your earlier post, I assume you were threatened with a Section 8 Discharge, mental deficiency existing prior to service that, though untrue, would cut you out of any VA help. At least that is the time frame you give and military policy at the time. You had 10 years by 89 so puts you between 27-30, possibly older, then. at least 57 now. Maybe not eligible for SS just yet but eligible for Social Security Disability Insurance (SSDI). So, I'm presuming you are not receiving Social Security in addition to your 70% VA. I would highly recommend filing for SSDI. Your 10 years of service will qualify you for at least some additional funds that will help get you settled into a place. I'd run not walk to the nearest Social Security Office and put in an application dated back to your last full time job or contract earned income earnings. The 70% VA and homelessness should get you expedited. It will mean a Social Security Examination and they do a thorough investigation so just tell it like it is. The resulting CAVES report will help you with your VA claim. You won't qualify for SSI because your 70% is probably too much and it would only raise what you are getting to the maximum SSI level. That is also true for the VA Pension which is only a little more than SSI (welfare) in most states. My CAVES report is far more thorough than anything the VA ever did. I ended up with 6 years back pay of SSDI to the MVA that ended my employability. Though the VA didn't get the CAVES report until 2013 it was done from 1990 to 1996. I think I was closer to being employable then than you are now and SSA wasn't as efficient as they are now plus I was only rated at 50%, not the presumptive unemployable of 70%. I'm using my CAVES Report as new evidence. You may need yours for new evidence in the future.
  9. Yes, there are properties for rent here. Best way would be to drive around and look for a vacant acreage with a house and then try to find the owner from the neighbors. Usually the cheapest way to go. Sometimes free for labor. Listed properties are around $800.00 per month for a small single family home. Once I get my filing done I'll look around and ask around. It is odd that the VA hasn't done a word test. I never had a VA audiogram that didn't include a word test. Maybe because you are only service connected for tinnitus? I have to help the wife get the house ready for company this evening. Will get back to you tomorrow.
  10. I think you might find it a good idea to move to an area in the 10th Circuit and join me in my case. At 70% you can qualify for Forma Paupers. I'm in Pro Se at the moment but have a Denver law firm looking at taking the case. If you like I can provide the forms and format. I'd leave the VA claim in Seattle if that is where it is now until decided one way or another. And since it is a Federal Circuit case you could probably join from Seattle if you want. Your overall case sounds very like mine and Comer in Comer V Peake that I posted earlier. States are: Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, but outskirts of Denver would work best. Something like Greely or Loveland. I'm in Torrington, Wyoming near my family. I'd give you an invite by my wife has had it with me inviting strangers into our home without a full vetting first.
  11. The word test is when the recorded voice says "say the word ***". The audiogram then reports the number or mistakes you make. In a normal sentence context you will hear the word correctly most of the time although sometimes if you are like me you'll hear a word that doesn't make sense in the context and have to have the speaker repeat themselves.
  12. Ben there and done that. 70% is livable if you can find the right place. I was at 50% until 2011. But I had applied for TDIU in 1987 anyway. That is now in Remand from the BVA for development. In your situation I'd go immediately and apply for TDIU. In addition ask for your claim to be expedited because of your homelessness and presumabley your age. That should shorten the wait. 70 + 10 adds up to 70% combined. 100% will get you off the street even in Seattle. The difference between what you are getting and about $3,000.00 without dependents. I have a wife and get $3,139.67. My wife stuck with me for 46 years now despite everything. I was also in the Navy. You don't say what your rate (navy job) was. I'm presuming the loss of hearing was "noise trauma" including the tinnitus. The 70% PTSD says you were close to a blast. There is a new NIH study showing blasts cause organic brain syndromes. So ask for a neuropsychological assessment for blast induced organic brain damage. I was also in for the long hall but got out after a TBI without knowing I was suffering from anosognosia. (the inability to recognize disabling effects--blaming others and the situation instead of recognizing you aren't up to the skill level you once had) With PTSD you've all ready had a partial assessment. No one did a complete neurological assessment that includes an EEG. Don't worry about adding claims. They won't reduce the processing of the re-evaluation. It has been put on a back burner because the assessment indicates an increase not a decrease. Surprised they haven't forced you into a cognitive therapy program group in an effort to reduce your PTSD rating---or maybe they have. I suspect that if you see it as useless and don't attend they will use it as an excuse to drop your compensation. That I conjecture on my part. I was kicked out of a CTP group for not doing home work that didn't apply to me. But then I'm not rated for my PTSD from a personal assault on me and a woman in Danang RVN, only TBI and organic personality disorder plus the hearing loss and tinnitus. I believe that without the TBI, which happened later, I wouldn't have a PTSD problem. Life got better with TDIU. It is enough that getting a cheap house in a small dying town was easy. It is a 4 bedroom 3,000 sq ft house on main street 5 blocks from the Hospital. Needed some work which I'm getting done. Started on Homepath as a fixer from a Fannie Mae repo. Did that while I was only getting the 70% combined. Paid off the fixing that was on credit cards with a VA loan and then paid that down with the back pay and did some more fixing. I also have the fear of harming others. I turned that inward after reading suicide is outward violence turned inward. Rather kill myself first than after I discovering I went postal and killed others. I believe anosognosia is part of that problem. It is a reality check syndrome meaning you lose control like a drunk without being drunk. Alcohol induces a transient state of anosognosia. When you sober up it is gone. But organic anosognosia never goes away. I suspect no therapist has ever said to you, maybe your seeing yourself and your abilities above where they are now. In a place they were before your injuries and I'm presuming blast injuries here that bounce your zygoma sinus plate against the anterior temporal lobe of the brain causing brain damage and subtle temporal lobe seizures you don't notice and others just right off as your being "drifty" or a bit off. Your therapist will note in the record occasional "latencies" and "lack of affect". Lack of affect from me starts with an enervation which is an atonic seizure. A sudden loss of muscle tone and energy without losing consciousness or falling. Just having to sit down before you go down and not being able to get up without getting angry and pumping up. Getting put on Keppra after 47 years of not knowing what was going on was a life changing experience for me. If you can print off a copy of this and take it to your VA PC you might get on the road to the right assessment.
  13. I'd use both new evidence "not considered" that existed under 3.156 and 3.105 CUE. CUE automatically revises the date. New evidence claims can be assigned the date of the claim with new evidence. That is the reason I'm claiming both. In old cases, not at hand at the moment, new evidence had to be something that was not in the file at the time. If it was in the file at the time it had to be a CUE claim. So to escape that trap file both. 3.156 seems to have been changed since I first reviewed it and since my attorney cited it to me in 2011. She may have been going on the old cases. The 3.156 quoted by Bronco seems to apply to anything they left out of the evidence considered. Use a claim of "safety denial of less mentally stressful employment" such as using motor skills, driving, etc with the hearing problem to claim 30% as a "definite impairment of industrial adaptability." Also depends what level you are teaching at. Adult Ed is much less stressful than K-12. K-12 burnouts from stress move to adult Ed. Junior College or College has students that are applying themselves. Much less stress to the teacher and much less leaning on by the Superintendent. In re-reading your first post it isn't clear to me if you are in appeal to the BVA or in a reopened claim. I'd consider taking a rest, applying for TDIU presumptively, getting the 100% that way while attending the new VA PTSD group therapy "Cognitive Therapy Program" (CTP) and individual therapy for a couple of years before trying to work. That would at least put you student loan on hold if not cancel it. It would give you time to get yourself together before trying that teaching job. I would go as a substitute or part time after a couple of years and work up to stamina. You have no idea, unless you are working full time now, what full time work stress is going to add to your PTSD. 36 years after my first PTSD therapy I'm back in therapy because of the stress of just pursuing my claim. I had 26 years of unemployment and being unable to pursue my claims until I finally received TDIU from 2009. Still pursuing service connection and date revision under CUE for my PTSD claim of 1984 which is aggravated by the lower stress threshold of a brain that has a moderately severe TBI history. It is my claim that the two aggravating each other should give me 100% from my last full time employment to 2009 when I was finally granted TDIU in a BVA decision of May 11, 2017. I was an honor roll student when I got my BBA in 1976 but couldn't hold a job. Very little stress as a student and the teachers overlook that "off day" which is noticed less than on a Job where multiple off days get you fired. I'm now being treated, since August of 2015, for temporal lobe seizures with Keppra. A life changing experience. I'm more employable at 77 than I was at 33 when I got out of the Navy after 13 years, 5 years after my SC TBI. Take a careful assessment of your stress tolerance before you jump. If you find anger is a current problem back off from that urge to do employment and stand on your feet for family. Take your time to heal.
  14. That is right. Even at 70% if you are not working, or working in a sheltered environment make sure your claim includes TDIU for 100%. It is presumptive at that level. You can take up date revisions and other issues on appeal including TDIU. You just have to have a claim filed for TDIU or some request that is reasonably close to a claim for TDIU. Just having said I'm not working or I can't work well is enough.
  15. At least get service connected. Hard to get a rating for anything but tinnitus anymore because the hearing aids have improved so much. Hearing aids are supplied every 5 years. I'm asking the 10th Circuit Court of Appeals to rate my "tinnitus" at 30% from July 19, 1974 because the EENT consult in 1965 was a result of denying me a Navy forklift operator's permit. That was 9 years before I got out. And the consult indicates a "definite" loss of employability options for safety concerns. The attached draft Pro Se form is a work in progress. Have some duplicate statements that need to be downsized removing Arguments from Statement of Facts. Most is a Copy and Paste from notes from my 4,624 page RBA (Record Before the Agency). I'm also attaching a copy of Comer V Peake from the 3rd Circuit which a lot of Veterans on this site can use. This is a result of discovering you can "Petition for Review" and "Agency Decision" to the Federal Court of Appeals. My claims have been in progress for over 30 years. Like Comer, I never gave up because the decisions were "arbitrary and capricious," like your decision, choosing to only look items that are negative to your claim. In my case I had seizures confirmed in 1990 but the diagnosis changed to pseudo seizures when they didn't respond to Tegretol. In fact Tegretol made them worse. I obtained a Physicians' Desk Reference from ABE BOOKS after looking up Tegretol online and discovering it was contraindicated for the type of seizures diagnosed currently. It was also in the 1990 PDR. I had a sensitivity to amitriptyline which was also contraindicated. 5 months of treatment in 1990 and then no treatment until 2015 when I was put on Keppra. So there is also a 38 CFR 3.154 claim. The Rating Officers, DRO and BVA of 1990 only referenced the WNL EEGs and not the ones showing "with or without seizures," which occurs frequently with Temporal Lobe Seizures. If you are accused of being a little "drifty" you may need to look into getting some EEGs done also. If you do stop all antidepressants or similar drugs for 3 days before you scheduled EEG. Also don't sleep for at least 24 hours before the EEG. And make sure you get at least 3 EEGs at times when you feel foggy brained. There is an NIH study showing "blast concussive damage" occurs. If, in your noise induced hearing loss you had any of these symptoms the sinus bouncing may have damaged your anterior temporal lobes of your brain and be causing, short absences, concentration problems, enervations (sudden onsets of loss of muscle tone--hard to hold your head up or infrequent drop attacks (knees buckling with quick recovery), nose bleeds during the firing exercise, etc. This also applies to malaria victims. A December of 2016 NIH study shows p. falciparum malaria also damages the temporal lobes primarily. From almost 50 years of getting worse, I can tell you temporal lobe seizures are hard to diagnose and no fun. I'm fortunate in the Oakland Naval Hospital inpatient record shows complex partial seizure symptoms in the nursing notes twice during my recover from 50 hours of unconsciousness followed by 30 hours of amnesia. 20180815 DC 10th Brief BVA 20170511.pdf Comer v. Peake, 552 F.3d 1362 (Fed. Cir., 2009).pdf

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