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Lemuel

First Class Petty Officer
  • Content count

    157
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Lemuel last won the day on August 10

Lemuel had the most liked content!

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13 Good

1 Follower

About Lemuel

  • Rank
    E-5 Petty Officer 2nd Class

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

Recent Profile Visitors

526 profile views
  1. 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.
  2. 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 1995 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
  3. How about some Hadit T-shirts, sweat shirts, etc for Veterans demonstrating in DC. Someone in DC should easily be able to get a source for the Hadit.com logo.
  4. Lemuel

    Retroactive Back Pay.

    Thanks for the reply, Berta. I found the Feres Doctrine a road block. I'm trying to get around it by going to Navy and VA regs through the Board for Correction of Military Records and VA Compensation as the remedy for 38 CFR 3.154 malpractice. Haven't found the appropriate Board for Correction of Naval Records regulations yet but have seen decisions from years ago to get what I want for a combined remedy. I'm leaning heavily on Section 4 of the 14th Amendment as well as other Amendments to get past Section 8 of Article I. At the same time I have a lot of decisions with CUE including a BCNR decision that I have petitioned to review at the 10th. Couldn't get them before the CAVC or the BVA because the AOJ wouldn't certify them by turning a blind eye to them in all but the last claim for CUE. And then they denied it based upon not filing within a year. But I did file within a year and did issue NODs when they weren't granted but the AOJ did not certify to the BVA. So I have it all documented except some documents that have been removed and I can prove they were removed by references in other documents by reviewers. I'm upbeat at the moment but it can all come crashing down. Now I'm working hard to get my brief down to the limit of 30 pages or 13,000 words.
  5. Lemuel

    Retroactive Back Pay.

    When studying the appeal of the FTCA claim, I discovered "Petition to Appeal" Provisions to bypass the BVA and CAVC in the Federal Appeals Court Rules. CUE and "arbitrary and capricious acts". I think we are still stuck with parts of the Feres Doctrine. But, using Citizens United and Bivens I 'm hoping to get Section 4 of the 14th fully implemented as far as rights of veterans to their compensation. And the 5th, 7th, 9th, and 10th to put at rest "sovereignty" of the United States Government (used in the Feres Doctrine and FTCA to deny trial by Jury). Common Law provides "sovereignty" to foreign heads of state only. It is the basis for "diplomatic immunity." It is not the basis for denying a right to a jury trier of facts in favor of government agencies which have natural biases against veteran entitlements to protect the government workers share of the pie and the natural acquiescence to supervisors looking for political appointments and being subservient to lobbyists. My brief covers 43 years and says in part: "Note: This brief is exceptionally long because the Record Before the Agency of the Department of Veterans Affairs is 4,529 pages long excluding many missing pages (probably removed deliberately) and somewhat reduced by duplicate pages. It covers 43 years of arbitrary and capricious acts, often believed to be mostly from the same root as whistle blower retaliation: the petty vindictive protection of the Agency’s reputation and coworker’s reputations and employment. The Record Before the Agency (RBA) speaks for itself. I have been an activist for veterans with organic brain syndromes since 1987, filing and appealing, with other veterans 8/2/1988 Bray V Brown 09cae Docket 88-6276. I have been proven right on my 1987 assessment of mild, moderate and moderately severe traumatic brain injury (TBI), walking, talking veteran victims with mild to severe diminished capacity, finally, in 2008 with recognition by Congress and thus, the VA despite the 1998 arbitrary and capricious testimony of the VA's Chief of Neurology at the Sub Committee on Benefits Hearing. I have been proven right by an NIH study published in December of 2016 with the pathology of brain damage from p. falciparum Malaria being determined. I have been proven right about the brain damaging effects of proximity blasts, including incoming and outgoing artillery, mortar bombs, and booby traps (now known as IUD) in recent NIH studies published. (2017-2018.) I no longer have to say, “and I’ll be proven right on any element claimed in my initial court filings on the subject of veterans with organic brain syndromes arbitrarily and capriciously diagnosed as adjustment disorders. (post script: in reading over this brief it seems a little drifty and much too long at times and I ask the Courts indulgence because I’m unable to make it more concise as quickly as it needs to be done because of my traumatic brain injury limitations despite my residual verbal IQ of 126.)" 96 pages so far and all I've gotten through is the Summary, Facts and Issues. No argument or citations other than those included in the notes on Facts and Issues which will be transferred. I still have 16 days to finish up. Really wish I had an attorney. Have feelers out to a couple of Colorado attorneys located near the 10th to come in after I file my Pro Se Brief and we see the rebuttal. I can't think on my feet fast enough to do any court argument and because of the Constitutional Challenges to the FTCA and partially the Feres Doctrine, if the 10th accepts the challenges without a summary denial, there will be an en banc hearing. The Clerk issued 2 Orders on 8/6. One gives the Appellee 10 days to respond to my request to correct the RBA and make it part of the record. (may not get there with this because the short time frame looks like the Clerk has already made up her mind.) The second accepts the Petitions to Appeal for the Court to decide on merits and gives me until 8/27 to finish my Pro Se Brief. This is the Whoopee, Whoopee, I received day before yesterday. Thanks for your follow, Bronco.
  6. Lemuel

    Retroactive Back Pay.

    I had to appeal to the 10th. Have two positive orders to the VA and U S ATTY from the 10th. Working hard on my Pro Se Brief. Will keep you all posted.
  7. Lemuel

    Retroactive Back Pay.

    Be sure to follow up if it takes more than 2 months. Someone had entered another person's BVA Decision in my file instead of mine. Our first names were the same. Mine granted TDIU and his BVA decision was a denial.
  8. 20180305 VA letter re issues_Redacted.pdf 20180108 NOD Rating Dec 11-1 signed_Redacted.pdf 20180727 Amend Petition for CAVA & VA review.pdf
  9. I have the letters of withdrawal. I have supplied them to the VA but VARO still hasn't removed her from my file. Don't need anything more from MS. Ellermann. She sent her original letter of withdrawal also to VARO and the Evidence Center. I'm hoping my chat with eBenefits will finally get her taken off the case. I've been trying to get an attorney for the 10th Circuit Court of Appeals. I have to file my Pro Se "notice of appearance" next. Then a brief within 40 days of July 17, 2018. Have it under control I think. The informal form will help a lot.
  10. 19860703 Dr Thompson report.pdf 19940610 VARO WY detail hearing schedules.pdf 19900507 Al Marsella Stmt_Redacted.pdf 19900917 Confirmation of Seizures redacted.pdf
  11. Has anyone experienced the kind of treatment I have and finally come to the conclusion it is in retaliation for something you did? This is my post from another site. A Veteran's blog, who is an attorney in response to an article on Whistle Blower retaliation: Lem Patient whistle blowers are also punished. I’ve come to realize going through my file that because of my activism on veterans with organic brain syndromes that began in 1987 I was immediately put on some black list or so it appears from my adjudication file. Refusal of evidence. Non-denial denials by providing something in response to FOIA requests but not what was ask for. A CUE of stating that a hospitalization from Aug 12 to Jan 15 was less than 21 days, and therefore not eligible for hospitalization compensation. Removal of documentation of disability from my C&P file. Currently, a 150 day delay in correcting the RBA by obtaining evidence referenced in documents not removed. But at least the CAVC Clerk was responsive to my complaint: Not published UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 17-2990 LEMUEL C. BRAY, APPELLANT, V. PETER O’ROURKE, ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE. O R D E R On November 7, 2017, the Secretary transmitted the Record Before the Agency (RBA) to the appellant and filed notice of service with the Court. On November 18, 2017, the appellant filed a motion that the Court will accept as a motion disputing the RBA. On December 1, 2017, the Court ordered the Secretary to advise the Court, within 15 days after the date of the order, and every 15 days thereafter, which action the Department – including the responsible VA regional offices – have taken to resolve the dispute. For more than 6 months the Secretary has filed responses to the Court either asserting they are continuing to review and determine if any documents are missing from the RBA or that they are attempting to locate documents identified by appellant as missing from the RBA. On June 13, 2018, the appellant filed a response asserting, in pertinent part, that the RBA dispute process has taken a long time and the Secretary has not provided any details of the status of the dispute. The Court agrees with the appellant and will ask the Secretary to provide a detailed status update. It is ORDERED that the Court’s December 1, 2017, order is hereby revoked. It is further ORDERED that, within 20 days after the date of this order, the Secretary provide a detailed response as to the items listed in the appellant’s RBA dispute filed on November 18, 2017. Proceedings in this appeal are stayed pending further order of the Court. DATED: July 17, 2018 FOR THE COURT: GREGORY O. BLOCK Clerk of the Court By: /s/ Cynthia M. Brandon-Arnold Cynthia M. Brandon-Arnold Chief Staff Attorney/Deputy Clerk 2 Copies to: Lemuel C. Bray VA General Counsel (027) brw Lem July 20, 2018 at 7:36 am I’ve filed an appeal in the 10th Circuit for DCWD Case 17-CV-206-F which is a medical malpractice suit for treating my confirmed atypical absence seizures and atonic seizures with Tegretol which is listed in the 1990 PDR (Physicians Desk Reference, the go to book for Doctors on medications) as making such seizures worse. 5 months of complaining that the drug was making me worse and finally having to wean off and quit therapy whereupon my seizure diagnosis was changed to pseudo seizures. I was never compensated for my confirmed seizure disorder. I started receiving successful treatment for my seizure disorder in August of 2016 with Keppra after 30 years of being unemployable. 28 years after the mistreatment with Tegretol. The black list even reaches to attorneys. Even Ben’s office won’t take my case for fear of retaliation. 1) From: Boggs v. Peake, 520 F.3d 1330 (Fed. Cir., 2008) ”38 USC §7292. Review by United States Court of Appeals for the Federal Circuit:” “…(d)(1) The Court of Appeals for the Federal Circuit shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. The court shall hold unlawful and set aside any regulation or any interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the Court of Appeals for Veterans Claims that the Court of Appeals for the Federal Circuit finds to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” “…There are only two statutorily created exceptions to the rule of finality for veterans claims in §7104(b). Cook v. Principi 318 F.3d 1334, 1337 (Fed.Cir.2002) (en banc). First, under 38 U.S.C. § 5108, "f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See also 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.1996) ("[T]he Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."). Second, a final decision "is subject to revision on the grounds of clear and unmistakable error." Cook, 318 F.3d at 1337 (quoting 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board)).” My amended (to date) Petition to Appeal VA adjudication decisions and refusal to certify CUEs because of a one year time limit are attached. (20180305... is the letter denying certification of CUE and wrongful closing of an appeal) Do you think I have a chance? 20180720 Amend Peti for CAVA & VA review.doc CAFC Jurisdiiction Boggs v. Peake,.pdf 20171120 NOD Rating Dec 11-1 signed_Redacted.pdf 20180305 VA letter re issues_Redacted.pdf
  12. Lemuel

    Retroactive Back Pay.

    I have a suit going at the U S District Court for the District of Wyoming that includes Denver VARO that you could petition to Join if you wish. It would help get it to Class Action and considered. I'm attaching the files in reverse date order. It is almost impossible to find an attorney. I haven't. But you might if you use the case that I'm attaching to show you can get by the administrative deceptions and delay. If you can find an attorney they can represent me also. I have a Wyoming attorney who will stand in if they are not admitted to the Wyoming Bar. If you can't find an attorney post here. I'll post my email and help you ghost write a Pro Se claim. You have to start with filing an SF-95. I can walk you through the process. Berta found the Laskowski case (which I misspelled in my last brief) but is useful. 20180502 Motion to amend d.pdf 20180416 Dismissal Order.pdf 20180306 Objection to Dismiss.pdf 20180306 Objection to Dismiss Brief.pdf 20180213 U S Motion to dismiss.pdf 20180213 U S Motion to dismiss brief.pdf 20180109 DCDW denial Motion Eq Toll.pdf 20180103 Rebuttal obj eq tolling.pdf 20171215 DCDW Summons U S ATTY proof of service_1.pdf 20171215 DCDW civil cover.pdf 20171215 Court complaint.pdf 20171215 Court complaint tolling.pdf 2013 Laskowski v. U.S. Dep't of Veteran Affairs, 918 F.Supp.2d 301 (M.D. Pa., 2013).pdf
  13. What was the date of your claims? I have a 2015 remand from the BVA that nothing has been done on. Also a 2017 remand. Plus an NOD. No status except pending.
  14. Mine never made it that far on eBenefits. Just suddenly got a decision and then a few days later it was registered on eBenefits.
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