Appeal To Veterans Court

[Guest fla_viking]

Dear Fellow Veterans & Friends.

This is the rough draft of my appeal I went to the informal appeal format. I have found lawyers are loosing CUE claims because the court picks fights over the lawyers interpitaon and aplicaon of its previous rulings on CUE. So there is no wiggel room for the court to confuse itself on law and its previous rulings. I basicly stuck to the format of what the law is in my case, statement of facts, and queston the court if that is a CUE under title 38.

UNITED STATES COURT OF VETERANS APPEALS

WILLIAM T. HIGGINS

V.

JAMES NICKILSON

INFORMAL APPEAL

nOW comes William T. Higgins petitioner appealing from the BVA May 17 2006 denial of CUE.

38 CFR 20.1403 the correct facts as they were known were not before the board, or the statutory and regulatory provisions extant at the tiee were incorrectly applied

ISSUES FOR THE COURT TO RESOLVE

1. Post Bell v. Derweinski CUE

2. Is bell v. Derwiniski relevean when the VA obtains records and keeps it secret

3. Do I have a right not to be represeneted by council? Nor have the American Legion submit briefs without my knowledge or being consulted?

It is established by the May 17, 2006 BVA ruling. The 1980 VA MMPI report was not obtained by the board in 1981 and that in 1999 the board found the 1980 MMPI report to be new and material and changed the outcome of the claim

The VA ignored the issue of back pay from Bell in 1992 to 1996 adn the issue weather or not the MMPI report was of record at the time. In 2002 in order to deny back pay. The St. Petersburg RO changed a previous BVA finding and ruled the missing MMPI report ws placed into the file in March of 1987. No one in the VA, myself, or my counsel ws notified of this act. Assuming the missing MMPI repoert was in the C file. When I tried to re oopen m claim from 1992 to 1996. The VA ruled the MMPI report ws not new and material. The VA assumed it ws of the record back in its 1881 decision, when if fact it ws not of record until 1987. This created a situation where the facts as they were known were before the VA but hidden from being reviewed because no one knew it was not of the 1981 record. Then snuck into the file in 1987. By the 1992 thru 1996 denial of my claim. The VA incorrrectly assumed it had been ruled on. Which caused 10 more years of denied benifits.

Although teh RO 2002 findings channge the factual basis of my CUE issue. Its still a CUE to secretly insert a key document without notifying either party of this act. Providing you beliveve the RO findings. Now we have the facts as they are known before the VA, but really is not because no one knows the facts are there. This is a factual difference from the Bell ruling.

I want to caution the court on the trughfulness of the RO findings. the St pete RO found in 2001 I was entitled to 1 year back pay. It took 3 years of appeals to change this finding. I had 22 years on SSDI, 19 years in a VA hospital and vets home for the service connected condition with current medical opinions linking my condition to service. Even so the St Pete RO ruled. "My complaints to my VA Dr's about the RO corruption, now shows the RO that the RO is the cause of my increased schizophrenia. The RO found my complaints statted the prior year. So i get 1 year back pay. The RO also denied other benefits citing from my Dr reports. "He combs his hair and wears a T shirt saying. Stop VA claiims fraud". It woudl take me years on appeals to over come that RO findings

All the benefits I ws being denied by the RO ws based on my complaints to the VA Dr's about the RO. This was an act of retaliaton by the RO.

The VA relied on thise missing documents for decades to deny my claim. BVA made a factual finding it was not in my C file. Now I come to this court with a last minute end run by the RO finding the missing documents was there since 1987. I knot know what to believe. the court will have to pick which story it likes best. None the less. Its still CUE to obtain docuemts and nott notify any one of this

Question: If the court chooses the 1999 BVA finding wherein the missing MMPI report was not of the record from 1981 to 1999. does that constitue a CUE from post Bell 1992 to 1996 as defined by the aboce title 38?

Question: IF the court believes the RO 2002 findings that the missing MMPI report ws placed into the file in 1987. Was it CUE for the VA to obtain the missing report. Tell no one it had it, and then place it into the file? Does this constitue CUE for the years 1987 thru 1999 as defined by the above titel 38?

To allow the VA to set a later effective date due to its failure to obtain records and when it does obtain the records the VA tells no one it has them. This poison fruit alwo the VA to den claims as long as its done incomepetently. As of now VA is accountable to now standards of claims review if it shuffels the deck in violaton of its own record keeping standards.

American Legioin representaton without consultation. Do I have a right not to be represened by council. Self representaion has a proud history ging back to the Bysentine era where for a dollar lawyers sold out there clinents. I had no idea the American Legion took over POA. The Al never contacted me or consulted me regarding teh brief they submetted. Even if the court finds I dont have the right to self representation. Any work done on my case and briefs submitted. I should be consulted with.

The only progress I made was when I went on m own to demand for the first time in 22 years a C&P. Back in the early 1980 VBA said no C&P and not one of the 3 VSO I had every challenge the VA ruling

I believe the AL slipped in a red herring argument regarding Duty to assist upon which the VA ignored the crux of two issues on my case and just followed the Al lead and confuesd itself on the DTA issue

I would request the court to order the VAO not to represent any one without there permission or submit a brief without review from the unsuspecting client.

Respectfully preented:

William T. Higgins

[Berta]

Terry- this is the key issue in my opinion:

"The VA ignored the issue of back pay from Bell in 1992 to 1996 adn the issue weather or not the MMPI report was of record at the time"

I believe -but I could be quite wrong- that the VA found your schizophrenia as presumptive-

In your BVA decision of 1982 (as referenced in the 3/24/99 BVA decision) they state that their denial was final and was due to a finding that "paranoid schizophrenia was not manifested until almost fours years after service." (page 3 of 9)

That was the Dec 1982 final decision-On this remand for the March 1999 decision-on page 8 of 9-it says that they wanted VARO to determine if the April 1976 to August 1977 treatments were the first manifestations of paranoid schizophrenia.

In my way of seeing this- the CUE occured in the Dec 1982 final decision by the VA at that time when a VARO decision classified your disability as NSC and they most likely a diagnostic code for some other mental disease-like personality disorder bullcrap-

I feel this would be a legal error- that the VA made in 1982- that Bell does not even affect-and thus it is the basis of CUE.

[Guest fla_viking]

Berta.

You are correct in the factual assesment of my case. The 1977 VA deteminaton of personality disorder may be concidered a mistake. But I doubt if it would ever pass the strick CUE standards. dr Error is not VA CUE error. It was the miising MMPI report as established by the BVA which is the cause of the two differnt time periods of my disablity having two differnt diagoosis. The VA not obtaining the MMPI report and then when it did have the report kept it secret. That is where the CUE occured

Terry Higgins

[Guest fla_viking]

Dear Fellow Veterans & Friends.

On my appeal to the court. I was just thinking. The VA has soul custody of our records. No one but the VA can take out or place documents into the C file. How could I have possibely presented a complete case before the VA when the record that showed I was sC all along was not obtainted, Then when all my appeal rights were exhausted, The VA secretly puts the document back into the file. Blinding myself and VA from any chance to review it in the future.Until I get granted my first C&P in 22 years.

If this is allowed to stand how does the court even know if what the VA designates as a complete record reallly is a complete record?

Terry Higgins

[Berta]

That is basically the problem I have with Bell V Derwinski-

a CUE like Myler claim that occurred prior to July 21, 1992 (Bell) has to rely on incorrect ratings and diagnostic codes in most cases.

Here is the OGC Pres op on Bell:

http://72.14.209.104/search?q=cache:NIzab3...k&cd=2&ie=UTF-8

"b. With respect to final AOJ decisions rendered prior to

July 21, 1992, an AOJ’s failure to consider evidence which was in VA’s possession at the time of the decision, although not actually in the record before the AOJ, may not provide a basis for a finding of clear and unmistakable error.

c. When, subsequent to a final AOJ denial prior to July 21, 1992, a claim is reopened after July 21, 1992, and benefits are awarded on the basis of evidence in the VA’s possession but not actually in the record at the time of the A0J denial, the effective date of that award will generally be the date on which the reopened claim was filed, as provided by 38 U.S.C. § 5110(a). "

From OGC Pres Op 12-95

If they Failed to Consider evidence prior to July 21,1992- there is no CUE-

But- in my way of thinking- a failure to consider evidence could well generate an improper rating and improper diagnostic code- and therein lies the CUE-

Isnt that why Myler won?

In 1953 they did not consider that his evidence showed GSW involvement to Muscle Group VIII-it was a clear through gun shot wound ( must have had entrance and exit scarring but not ratable)

However it was when they rated the GSW as "0" SC they they made the CUE.

As the 1953 criteria for involvement of Muscle Group VIII was consistent with the gun shot wound he received.

Regardless of the evidence and whether VA considers it or not- if it is not considered (so no CUE there on that basis before July 21, 1992)this uncueable failure to consider records and evidence sets up a Cueable failure to apply the correct reg- IE: DC code and rating. and therefore the VA can commit a bonafide CUE.

Does this make sense to anyone or am I just nuts?

I cant wait for the VA to decide my present CUE- then they have another one-I did tell them if they get the first CUE correct I will drop the other CUE claim- however-I have supported the second CUE with evidence yet and am anxious to do that.

This second CUE could involve Bell-

It is basically I stated that, the VA in a 1997 rating decision, failed to rate and code my husband's significant heart disease, evident in VA medical records from 1988 until his death in 1994,and therefore committed clear and unmistakable error.

All I sent with it was the rating decision and some VA regs about how they have to rate each disability-and also the VACO report stating his misdiagnosed heart disease was one of many medical errors in the "substandard care" he received.

I would think that Bell would come into the 1988 10 July 1992 part and I have to figure out how to handle that-by showing the 1997 rating decision was fatally flawed (which it was) and the flaw stemmed from

lack of raing and DC code (for a significant disability that the VA never diagnosed-negligence and malpractice 1997 Sec 1151 award)

The reports they had from VACO clearly indicated that he had suffered misdiagnosed heart disease , evidenced in VA medical records as early as 1988, where tests were to have been done to rule out CAD but they never occurred.

If they do the present CUE right (it is at rating board) I will withdraw this one but I sure wish I knew how they would actually handle it. They both involve the proper retro for SMC. The veteran was denied SMC but they never told me why.No SOC. He was 100% PTSD, 100% Sec 1151 stroke, 1151 heart disease ???? % and also DMII SC % ???with visual problems, etc- I asked for R-2 award and supported that with medical evidence and EEOC testimony etc-.

The Sec 1151s however are all supported as directly service connected due to AO under Nehmer and via an IMO I sent with my main claim.

CUEs are usually complex but often they can rest on simple past errors that are critical to a vet's retro award.

It sure pays to check the DCs they give you and also match up your rating with their rating schedule to see if it properly reflects what it should.