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Lemuel

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Lemuel last won the day on August 5 2020

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About Lemuel

Profile Information

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

Previous Fields

  • Service Connected Disability
    100%
  • Branch of Service
    USN
  • Hobby
    Activist for Organic Brain Syndromes

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  1. I have requested both from the NPRC and the VA RMC. Same result from both. another copy of my C&P file that does not have the missing documents. specifically the progress notes from the VARMC West LA for treatment of seizures and spinal disc disease following a 1990 MVA and a couple of missing EEG reports. There is a record of an AMIE request for the OPTR records in the C&P file and a transmittal but no progress notes. The VA OPTR and IPTR in the VA hard copy Medical File would be much easier to work with. It is filed in date order with the most recent date on top and the earliest on the bottom. The progress notes were on one side and the lab and pharmacy, etc on the other. The original C&P file was supposed to be that way also. Bobby Ogden at the Central Office put my C&P file in order with reference tabs to original medical and rehab documents in 1996. At that time the Progress Notes I need were in the file and VARO Denver was handling my claim which they denied because of the failure to process my I-9 SA and denied its existence, stating I had not filed it, denying my claim, though the 11/26/1994 SA is still in the file. It is obvious documents were removed from my C&P file at VARO Pittsburg. I had a couple of DRO hearings at the Central Office before the expats files were move to Pittsburg. Pittsburg VARO was dysfunctional and never completed the decision for my 1992 appeal. During that time 1995-2003, I had a home in Japan and lived on the street in Washington, DC with a P.O. Box with occasional trips to Japan paid for by my father-in-law. I was petitioning the Central Office for TBI and other organic brain syndrome SC and compensation review. I had given up working in 1985 and received TDIU back to September 1985 in April of 2020 from the Director, Compensation Services. Pittsburg VARO insisted I go back to Japan for a C&P in 2003 while I was a patient at VARMC Washington, DC. I believe that came from the Central Office to get me out of DC.
  2. The military records are at the NPRC, except for mine which have been incorporated into my C&P file along with some pages from other veterans files. The VA hard copy medical records are unattainable in my experience. They never made it to the NPRC. Possibly because of that 5+ mile high stack of records waiting to be scanned found by the VA OIG a couple of years ago. No contract to scan? Waiting until all of us older veterans are dead so they do not have to be scanned? The VA hard copy medical records are not. At least they have not been provided to me on my FOIA requests. Instead I get another copy of my C&P file by CD. I will try to get the BVA judge to use the "doubt favors the veteran" because the absence of records removed that are provable within the record to have existed in the C&P file prior to digitalization. Also, the previous BVA judge referenced a finding that indicated I was qualified to state items that I had a background in as fact. Will use that also.
  3. What happened to our old medical files? The hard copies prior to digitalization? I have been unable to get mine to replace items that have been removed from my C&P file.
  4. I sign on to VA.gov and it takes me to eBenefits for status of my appeal. So nothing available period until they finish the conversion for some of us. Is there a specific way to sign on if you had a "prime" eBenefits account prior to the conversion? Do we need to get a new log on ID? What the hell is going on?
  5. Joey, the eBenefits site is not kept up to date. You need to request a CD of your file now to get the evidence to see if you need to appeal your "higher level review" to the BVA. Higher level reviews typically rubberstamp the Rating Officer Decision though some do not like to be overturned by the BVA.
  6. I have been following cases at the Court of Appeals for Veterans Claims (CAVC) and the Court of Appeals for Federal Claims (CAFC) for a couple of years. What I got out of that is that the BVA is the "fact finder" which neither the CAVC or the CAFC can overturn a decision based upon "the facts" decided by the BVA. You must ask for an independent medical opinion (IMO) at the BVA level and a referral to the Director Compensation Services at that level to get a Constitutional abridgement of the law based upon the "Regulations" (CFR) that require certain things to be done. I have an appeal in to the BVA and am waiting for a hearing. At the hearing I must raise all of the questions of fact to develop my claim such as the nexus of my seizures in my TBI hospitalization record, performance reports that are indicative of "procrastination" (when I was staring at the wall, a symptom of temporal lobe epilepsy), the failure to ever do a 38 CFR 4.42 compliant examination, the failure of the DRO to order the specific examinations ordered by the BVA Judge in my previous BVA Decision, etc.. If the BVA judge says it did not happen, the only way to appeal the decision is to get the CAVC or next level CAFC to find the decision "arbitrary and capricious" or the examinations reports to be "arbitrary and capricious" or that a Constitutional civil right has been abridged. For the Constitutional civil rights review the Amendments to the Constitution, particularly the Fifth Amendment and Section 4 of the Fourteenth Amendment. I am going for earlier effective dates for my TBI, service connection for temporal lobe epilepsy, secondary service connection to the temporal lobe epilepsy spinal disc disease from an MVA caused by an "altered state of consciousness" reported by the VA physician to the DMV causing a suspension of my DL and some more items including a "next of friend" claim for all veterans suffering from organic brain syndromes that I made and ask for a referral to the Director, Compensation Services in 1994 which was denied to exist by the Director of Denver VARO in 1998. When I get my hearing and my BVA docket no., I will post it so that anyone with a TBI before 2008 can join and claim an earlier effective date back to the date of release from the service for their TBI or other organic brain syndrome such as cerebral malaria.
  7. The CAVC recognized Constitutional 5th Amendment due process in Noah v McDonough attached to my earlier post. What is needed is to get the Congress's limitation of compensation when it recognizes new disabilities (TBI 2008) and these new presumptive service connections under the Fourteenth Amendment Section (4), guaranteeing U S Debt especially and specifically to veterans. I will give it a try if the BVA does not recognize it when I bring it up at my hearing, to get it to the CAVC. I have TBI and other conditions that apply under the general 38 CFR Chapter 3 and Chapter 4 statements of intent and how to SC and rate conditions not in the Disability Compensation (DC) tables. Really need a Constitutional Attorney for this but since none will take it, will have to go it alone like Noah did.
  8. I do not think a diagnosis that did not show disabling affects can produce an EED. I claimed Agent Orange in 1984 but had no disabling affects. I had PTSD from other causes than being sprayed and unable to decontaminate. I also had a TBI diagnosed in the physical examination at that time. Result, 30% traumatic brain disease because you could not have two mental diagnosis for the same symptom condition. Others got 50% PTSD for Agent Orange contamination because of the high incidence of cancer showing up in those exposed who were unable to decontaminate. The director of mental health at the LA downtown VA clinic nixed my diagnosis of PTSD and tried to nix compensation at all stating I had an adjustment disorder anxiety attack overruling the examiner's diagnosis of PTSD. My appeals went nowhere. Still trying a CUE but do not expect much. The higher rating is supposed to be applied in that circumstance. Not having it applied created a hardship which made my mental condition worse at the time. Having to ask my wife to avoid pregnancy because I was not being able "to provide." I am going to argue that Noah v McDonald (attached) applies as a denial of due process. I also have bladder cancer, not malignant but aggressive, with symptoms from 11/15/2020 or possibly from 02/28/2020. I expect service connection from AO or being treated by the VA with Zantac AKA Ranitidine, with a known cancer causing ingredient, for 11 years for acid reflux. I entered a new claim under both AO and 1151 for the bladder cancer. Will not do anything financially, but may raise my rating to PT 100% combined from the 80% current combined rating. Does affect state benefits such as a hunting license free on my choice of area with an allowed nephew to do the hunting using my license and me only being at the camp if I am able to be there. My TBI was rated at 0% but service connected in 1974. 1984 30% traumatic brain disease (no organic personality disorder) and 1985 an extra-schedular TDIU from 1985 at 100% in a 2020 decision from the Director of Compensation Services on a remand from the BVA because my 1987 extra schedular claim had not been processed. I am hoping to get a 50% TBI temporal lobe epilepsy rating from 1974 because of my employment difficulty ultimately resulting in ultimate unemployability because of my employment record except for part time work which I ultimately had to give up even trying to work. This will also be a "denial of due process" because the VA did not follow regulations in diagnosing temporal lobe epilepsy. No 38 CFR 4.42 injury examination in 1974. Combined with an EED for organic personality disorder and the failure to give me a hearing difficulty diagnosis of tinnitus (in my Navy health record) would result in a "denial of due process" increase from 0% to 80% which would raise my income to approximately what it should have been in that period if I had been able to maintain employment, provide savings and purchase a residence. There is also the failure of the VA Medical Division in diagnosing "anosognosia" (look it up, it may apply to you) because it is not in the DSM-5. It is in the DSM-5 under the diagnosis of "organic adjustment disorder" with the addition of "-subtle anosognosia". I believe the VA avoidance of the neurological diagnosis of anosognosia is the greatest cause of the high combat veteran suicide rate. It feels like a demon within that sabotages your productive efforts and simple daily relationships. I have a neurologist who has offered to write an IMO. Waiting for that. He is treating me for my temporal lobe epilepsy which is not as obvious as grand mall epilepsy. 1 Noah v McDonald 5th due process.pdf
  9. For some reason, I am not receiving all of the posts on threads I post on? None between my last post and Steve40th's.
  10. Thanks Bronco. I agree, you need the reputation of the attorney and if they will not represent you at the CAVC in their fee agreement in an appeal after obtaining the BVA Decision it is a no go for that attorney. My mistake on both occasions. In both cases I could have gotten by without an attorney. Did not need one on the remands from the BVA but thought I did. My mistake. Others should learn from it. Over $110,000.00 was deducted from my awards because they were not awarded at the CAVC. But that is part of my TBI difficulty. Decision analysis before the fact.
  11. Most attorneys will not take a case to the CAVC or to the CAFC. My last attorney dropped me immediately when I referenced his name in trying to get the BVA remanded examination orders by the DRO to the contract C&P examiners. He took the $80,000.00+ from the remanded extra-schedular slam dunk award from the Director, Compensation services and ran after literally doing very little. Mr. Pain was self represented at the CAVC according to the Opinion.
  12. Thanks for this. I submitted a 1974 claim for residuals of a TBI. This decision bodes well for my pending BVA claim for an earlier TBI rating date. Also claimed TBI as "next of friend" in an unadjudicated extra schedular claim for all victims of TBI and cerebral malaria on 11/26/1994 denied to exist by VARO Denver Director on 7/20/1998. The claim is attached for anyone with a TBI who wants to claim an earlier effective date for their TBI than the Congressional limited date of 2008 or 2009 when they received the letter from the VA to submit a claim. My pending BVA is also attached. I will post the BVA Docket number as soon as I get it so that those who wish can submit a petition to join. I think you can submit a petition to join from a printed copy of my 10182 before it is docketed. The original claim date is 12/10/1990. The BVA 10182 was resubmitted on the finding that the 11/26/1994 Substantive Appeal had never been adjudicated similar to my 1987 extraschedular claim for TDIU which had been remanded by the BVA and resulted in TDIU from my last day of full time employment in 1985. If anyone has an attorney that can handle this for all of us, I will sign on after the BVA Decision. The attorneys I have had in the past only wanted the slam dunks and would not go to the CAVC as was necessary for Mr. Pain who won in a self represented appeal to the CAVC. My appeal to the CAVC was denied with the stipulation that I could file a legacy appeal to the BVA by a magistrate. Appeal to the CAFC was unsuccessful. I had to do both self represented (in Pro Se). I suspect referencing Mr. Pain's CAVC decision will get us earlier effective dates from the BVA without having to pay an attorney the way I have in my previous two successes at the BVA level out of my award. Because of my 1974 claim for residuals of a head injury and finally getting a confirmation of seizures following an MVA in 1990, I believe getting past the erroneous decisions that have been copied forward will finally be a thing I can get over at the BVA hearing by demonstrating what happened in the remands from my 05/11/2017 BVA Decision. Those remands are part of the issues before the BVA now because the examinations offered were not compliant with the BVA remands and the VAGC tried to fake it before the CAVC which I have documentary proof. They submitted undated orders after a reported call from me that the examination offered was not compliant with the examination remands to the CAVC. The BVA is the fact finding authority. So I have to get the BVA to find that as a fact as well as the fact that the C&P examination at the VA was also copied from the previous examinations without reference to the BVA Remands for examination. A lot of you are experiencing this "short cut" in the adjudication process never getting the correct fully compliant 38 CFR 4.42 required examinations ordered by the RO or DRO as the case may be. You can find my CAVC case logs by searching party; Bray, Lemuel on the CAVC website: Cases Selection Table (cavc.gov) I have been fighting for us all who have organic brain syndromes since 1987 as the record shows. 19941126 Lem to BVA re Sub Appeal_Redacted.pdf 19980720 Dir Den VARO letter to OIG_Redacted.pdf 3202 19901210 VSO reopen Lem claim_Redacted.pdf 20210131 Lem to BVA 10182 signed_Redacted.pdf
  13. I am attaching the 10182 that is being docketed plus an amendment. I am going to argue as above and that "back pay" is required to be in current dollars under the Fifth Amendment, taking property without just compensation and the 4.42 claims are of a debt required to be paid under the Fourteenth Amendment, Section 4, guaranteeing debts to veterans. Economically speaking, the current method of paying back pay at the rate of the year missed takes good and services out of our shopping baskets. My claim is large. In my TDIU award back to 1985 it would add up to over $200,000.00 and represents the difference between buying a $250,000 home in Los Angeles area in 1987 if the award had been made then instead of in 2020.20210426 Lem to BVA re 10182.pdf 20210131 VA 10182 legacy appeal_Redacted.pdf
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