[Missing Records]

My personal military and medical records have been reported as destroyed in a fire within the archive's in St. Louis. Are there any other U.S. Army or Record locations that might contain either originals or copies of my military records? Specifically, all or portions of my medical records. I served from May 1956 to August 1959 both within the U.S. (Fort Jackson and then Camp Gordon, now Fort Gordon) as well as in France (SHAPE) and Germany (Idar Oberstein >Advance Military Police and Criminal Investigation).

[Federal Lawsuit]

I'm moving this topic to VA Claims/Research.

carlie

Carlie, thank you! I believe that I have posted my response to Berta properly however I did not see the same message response as when I have posted other message to her. Would you please see that Berta gets it.

<br>Carlie is right -to definitely file the claim-

I just suggested the CAVC case link because I felt more here might see things in the CAVC remand that could help you.

I don't open my email and PM thing here because I don't have the time to even get through the daily emails I get.

Do you follow Veterans for Common Sense web site? "http://www.veteransforcommonsense.org/"

Attorney Paul Sullivan is relentless in pursuing rights of veterans in the federal court.such as:

"http://www.veteransptsdclassaction.org/"

I think I interviewed him at SVR radio some time ago-about the San Francisco lawsuit he filed for veterans.

The shows tape would be at SVR (Stardust Radio) and if I have time I will post the link.

[Federal Lawsuit]

"Most have wanted to take it forward as a class action, which for purely selfish reasons as well as the time line, I am against. ."

The biggest problem with class action is getting an entire class of veterans who have been adversely affected in the same way you were.

Suits like this have been filed but seem to get no where.

"In conversation with a former (retired) claims evaluator for the VA, I was informed by this same person that rejection is policy."

Rejection of an IMO is not a valid VA policy but will happen if the IMO does not meet the criteria needed for it to be probative evidence.

Do you feel comfortable giving us the link to your CAVC remand? We would need your name to find it. It is public record at the CAVC site but you might not want to give us your name here.

Is the only claim problem you are having dependent on an IMO that supports your claim -which they have rejected?

Smoke and mirrors- I sure know all about how that goes-

the OGC lawyer who handled my settlement years ago gave me a status of my recent case last week but asked me to please not to call the lawyer who is handling it.

He recalls how aggressive I was with him years ago.and inadvertently he had told me the OGC lawyers name.

With a few google searches I found this lawyers email addy at the OGC-

I promised not to call him but didnt say anything about not emailing him.

I need a status (and confirmation that he is in fact handling my case- I check out everything the VA says to me)

before I prepare a Mandamus Writ on another matter.

Perhaps your lawyer would see basis for this type of writ in your case.

Berta,

May I be allowed to send you my name by private e-mail.

Please forgive my the size of this message.

I'll send you the information regarding the CAVC remand toward the end of the week. Actually I did not know that I could review any of my records on line but I'm learning fast..

I was able to find the following: http://veterans.house.gov/hearings/Testimo...%20M.%20Simmons

I am very impressed with your determination and perseverance! I also am determined to pursue my current spinal injury claim for an appropriate increase in my SC disability rating. I will continue to pursue my claim in the VA system. I have different goals for my effort Federal Court. At the very least my effort in Federal Court may help other Vets suffering similar VA Claim difficulties.

What I am not looking forward to is the necessity to file an additional claim for my loss of hearing. I foolishly had my helmet strapped when firing a rifle grenade and there was a traumatic blast effect that went up into my right ear damaging my inner ear. I have lost my hearing in that same ear.

For the reasons you've stated, I am going to move forward into the Federal Court as an individual. My complaint will charges the VA "administrators" with proven malfeasance, misfeasance, willful deception and deceit among other things.

The court cannot force the VA to change their written policies. However they can force them to support their negative decisions in the face of overwhelming evidence regarding my charges. There are other significant issues that will include bringing forward the ex VA employee that I have been in contact with although when first asked, the employee was fearful of retribution of some sort against him from the VA. In addition there are certain media persons who have expressed great interest when I go into Federal Court.

The current claim problem that I am having is more related to indifference to, as well as ignoring of, medical reports that I've provided to the VA over the years from private doctors as well as my personal VA medical files. Their written declarations to me over the years will speak to this issue.

I had the good fortune of being able to stay away from the VA for many years as I felt I could take care of myself because of my financial circumstance and with my private insurance. Prior to my deciding to enter the VA system I had 40+ years of seeing private doctors. I've provided the VA with a great deal of medical records attesting to years of my seeking care as well as hospitalization specifically for my injury. To my great misfortune, during these last 10+ years I have been getting worse and have been unable to make a living.

After 6+ years and the decision to remand from the CAVC, I was finally granted a SC of 20%. This is in spite of the fact that I can no longer work because of my injury and to my spine and the resulting condition. The latest loss of my hearing has just added to my disability.

Some interesting facts: When I first filed my application for veterans disability in 2002, I was notified by the VA that my records were unavailable. The claim is that my records were destroyed in a fire.... What is interesting is the fact that I was able to obtain my fathers WWII Army record which was also supposedly destroyed.

[Federal Lawsuit]

I hear your frustration.

It took the VA over 6 YEARS for them to read my medical evidence for my last claim.

After 2 inappropriate awards letters and dealing with some RO Supervisor who gave me some crap- I filed a complaint with Sec Shinseki- and my case is at the OGC now.

"They returned with an extremely low SC rating. I and my attorney were initially notified by telephone of the rating with an explanation as to why it could not be more. Their reasoning was in direct contradiction to the medical facts."

Have you gotten the formal SOC yet as to how they determined the rating?

If they are ignoring critical evidence maybe it is best to file a Writ of Mandamus.That is something the attorney could best advise you on.

Then again has the attorney considered asking the VA to CUE it's decision? and cite in this request the pertinent VA case law that shows they must consider probative evidence.( I think that is 38 CFR 4.3 and 4.6) I have posted the evidentiary requirements here many times under other topics.

But one question - did they actual ignore the IMO or reject it- if an IMO does not conform to the IMO criteria (which I posted in the IMO forum here) VA will be happy to have reason to reject the opinion.

In my case I had 3 IMOs how could they ignore all three?

But they did.

The BVA was the only VA entity in 6 years who actually read my IMOs and other evidence.

If they are failing to follow a remand from the CAVC that too could be basis for a writ- it would help here to know exactly how they worded the actual determination of the rating they gave you.

If they are asking for what you already sent to them- I feel you should send it again-

I have 53 USPS tracking slips of evidence they never acknowledged.At the Regional level.

and if they gave any reason for rejecting your IMO -you could have the doctor conform the opinion to what they want.

Berta, With regard to the OGC. After the U.S. Court of Appeals of Veterans Claims decision to remand my initial application for disability back to the VA, the attorney for the OGC became upset and vindictive and filed a motion to have the VA deny my attorney her earned funds. Only after I complained in writing to my U.S. Senators, the Veterans Senate and Congressional Committees and others was there the payment to my attorney. The responses that were sent out from the OGC to those people in authority that I complained to and that had inquired to the OGC on my behalf were absolute fabrications. “Smoke and Mirrors!”

It is these events in my dealings with the VA, RO, DVA as well as OGC that I intend to present to the U.S. Federal Court. I will also be supporting my suit with the written evidence that I have in hand from the VA as well as the numerous and flagrant contractions from the VA, to include outright fabrications. Therein lies the reason for my desire to take this fiasco into a Federal Court. So far the only problem I have had in seeking out the right attorney has been in finding one that would represent me as an individual. Most have wanted to take it forward as a class action, which for purely selfish reasons as well as the time line, I am against. .

[Federal Lawsuit]

"If they appeared in U.S. Federal Court, outside of and bypassing the VA Appellate System"

You apparently are not referring to a VA claim issue...?

Can you tell us more about your cause of action?

I have never heard of a veteran "bypassing the Appellate system" for a VA claim-so you must have a different type of case -regarding the VA.

The VA appellate system provides chances to appeal a decision to the RO, then the BVA, and then to the US Court of Appeals of Veterans Claims.

"The Federal Circuit Court has jurisdiction over CAVC decisions."VBM by NVLSP page 1268 2009 Edition

The claimant and the VA have 60 days after entry of judgement by the CAVC to appeal to the Federal Circuit court.

Any vet or widow in the VA claims process has, in fact, countless ways to succeed at some point in the appellate system.

If they provide (and might have to send it to the VA many times), the wxact evidence that the VA asks for- then they will succeed.

Or Are you perhaps talking about a Writ of Mandamus ?

I filed one years ago that seemed to speed up my claim at that time-

and I am preparing another Writ just in case.

A Writ is filed with the CAVC and it must ask the CAVC to do something, tell the court why the claimant has been unable to get the matter resolved at the VARO or BVA level,and then attach documentation of every attempt the claimant has made to get the VA to fulfill the essense of what the writ is for.

In my case the writ is to order the VA to properly rate my husband's Agent Orange disabilities.

And then to make a determination on accrued SMC benefits.

SMC is a statuatory regulation and mandated when the medical evidence warrants a SMC award.

They owe me accrued benefits under the Nehmer COurt order and numerous attempts I have made to the RO-to include-correspondence directly to their director have provided no response whatsoever.

The lack of any rating of my dead husband's AO disabilities has caused my burial benefits claim and my REPS benefit claim to be on hold for a proper disability rating that VA refuses to make.

I want the Court to order the Buffalo VARO to comply with established VA case law regarding these issues.

That is what a Writ involves- do you mean a writ of this nature?

A writ is appropriate when

1. the VA fails to act properly on an issue that is supported or mandated by VA regulations (but not duty to assist regs)

2. the claimant has made every attempt via correspondence with the VA to get the matter resolved.

3. The claimant has exhausted every remedy available through the normal claims process.

4. the writ does not involve medical differences of opinions nor how evidence was weighed.

5. The claimant can provide documentation of their attempts to have the matter resolved.

6. The claimant needs to cite the exact regulations that the VA has broken or ignored.

7 the errors the VA made must be of a nature that fully prejudiced the veteran or widow in attaining their proper comp or DIC or some other monetary benefit.

Still a writ does not "bypass" the normal appellate procedure but can correct an appellate and administrative error that is allowing the VA to stall or deny the claim.

--

Berta, Thank you.... Your information below is what I’ve been seeking.

"If they appeared in U.S. Federal Court, outside of and bypassing the VA Appellate System"

You apparently are not referring to a VA claim issue?

>>> In fact I am referring to not only a claim issue, but the process.

Can you tell us more about your cause of action?

>>> I have strongly disagreed with the SC Rating giving to me initially and have asked the VA to reconsider without success...

I have never heard of a veteran "bypassing the Appellate system" for a VA claim-so you must have a different type of case -regarding the VA.

>>> I do not believe that my case is any different the thousands of other Vets. It is a case wherein the facts and my condition have been ignored to the point of indifference and/or incompetence and rejection policy.

The VA appellate system provides chances to appeal a decision to the RO, then the BVA, and then to the US Court of Appeals of Veterans Claims.

>>> I have had a seven-year experience with the VA claim and appellate system to include the RO and the BVA. Denials all the way until I reached the U.S. CAVC. The Judge in the CAVC remanded my case back to the VA for their immediate reconsideration. They returned with an extremely low SC rating. I and my attorney were initially notified by telephone of the rating with an explanation as to why it could not be more. Their reasoning was in direct contradiction to the medical facts.

If they provide (and might have to send it to the VA many times), the exact evidence that the VA asks for- then they will succeed.

>>> The “send to the VA many times” as well as their process is precisely what I wish to overcome again. I am now being asked for additional information (outside medical reports), which requires me to again see outside medical resources at costs that I can ill afford. I already have delivered Medical reports that I obtained from private doctors, one of whom is a former VA Neurologist. He is astounded that the VA has totally ignored his report as well as his care.

Or Are you perhaps talking about a Writ of Mandamus?

>>> I thank you regarding the information regarding the “Writ of Mandamus.” As I can evidence that I fall into the seven “appropriate” categories noted for filing a Writ, I will begin to look into this option immediately. However, unlike my thanks and admiration for the quality medical care that I have received within the VA Medical system, I have no faith in the VA RO or BVA Administrators. In conversation with a former (retired) claims evaluator for the VA, I was informed by this same person that rejection is policy.

I still wish to learn if it’s possible to bypass the VA appellate process by suing the VA in U.S. Federal Court.

[Federal Lawsuit]

If you are speaking lawsuit then your best source of information would be an attorney who specializes in claims against the U.S.

Ricky, Thank you. The attorney is already available... My interest is to understand as much as I can about the process from experiences of other plaintiff's points of view as well as the attorney.

[Federal Lawsuit]

There are literally hundreds (thousands?) of veterans who have pursued their claims through the Federal Court system.

You need to be somewhat more specific as to what you wish to know.

http://www.veteransresources.net/

LarryJ, Thank you for your interest and response. To begin with I was hoping to be able to communicate with an individual(s) and learn about their court experiences and what their process was... If they appeared in U.S. Federal Court, outside of and bypassing the VA Appellate System... Who they named in the Law Suit? If they were successful in obtaining court order to force the VA to assist in locating and delivering military records to include military hospital records?

[Federal Lawsuit]

TBird,

Can you advise where the best forum is to post the following:

-----

Is anyone aware of any federal lawsuits that have been filed by an individual (Veteran) against the VA in the U.S. Federal Court, bypassing or in addition too eight years of having to battle with the VA, Appeals, NOD, etc.- If so I would appreciate learning of the lawsuit.s

-----

I posted in "How do I but with out any viewers or reply's.