Terry Higgins Law Suit

[Pete53]

I have Terry Higgins permission to post this:

IN THE UNITED STATES COURT OF VETERANS APPEALS

FOR VETERANS CLAIMS

WILLIAM T. HIGGINS

Appellant

v. Vet. App. No. 11-0396

ERIC K. SHINSEKI

Secretary of Veterans Affairs

Appellee

INFORMAL BRIEF SUBMITTED BY APPELLANT

Issues to be resolved by the court.

1. IF the court finds the VA did destroy C file evidence which proved claim. Is the destruction of that evidence. CUE?.

2. Does the veteran have the right not to be represented by a VSO?. Dose the veteran have a right to know if the VA orders a VSO to write briefs on behalf of the veteran? Does the veteran have the right to know of and participate in the making of the VSO’s brief sent to the BVA if the court finds the veteran cannot refuse VSO representation?

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This informal brief appeals the BVA Dec 10, 2010. Docket # 09-11-156. Denial of CUE and veterans right to know of and refuse VSO representation.

This is the first time in 9 years of appeal the VA address the issue regarding the removal/destruction of evidence which proved my claim, so my claim would not succeed.

The court held in Cook v. Principi 318 F.3d 1334 (2002). United States Court of Appeals for the Federal Circuit: “an incomplete record factually correct in all other respects. Is not CUE” I’am assuming from this ruling that an incomplete record due to the destruction of facts contained in documents, which changes denial of claim to a grant. Is CUE. VA argues the missing documents were not associated with the record at time of board decision. I totally disagree. Referring to page 7 last paragraph of the RBA. The VA admits there are adjudicators note stating “Lost or destroyed”. Referring to the 1976 MMPI bar graph with Dr notes. The BVA found in its 1998 ruling. The 1981 MMPI bar graph with Dr notes was also missing and was new and material which re open my claim and was the document used allowing the granting of service connection benefits.

You take those two pages from hundreds of pages in my C file, and those documents show a visual nexus to my being approved for service connection. There was intelligent design in the removal of those two pages. The only people those two pages would have mattered to. Is the VA adjudicators, who we now know. There denial of my claim, conflicted with the facts shown from those two documents.

The VA argues that Bell v. Derwinski dose not apply because the documents were not before the adjudicators at the time of the decision. I agree that Bell v. Derwinski does not apply but for a different reason’s. The court is going to have to make a decision. Was I really that unlucky to have been denied for 25 years because of two pages out of a thousand page C file, upon which those two pages rested inside two separate MMPI reports, where the MMPI reports themselves made it into the C file but the two pages nestled inside those two MMPI reports did not?. The above glimpse is just to paint the picture as to why I believe the VA destroyed evidence. I ask the court to further read my brief to see how strong the evidence is in proving the documents were destroyed.

The VA sidesteps this whole issue by now declaring the evidence that was before them and destroyed. Is now all of the sudden “new and material” The new and material evidence defense by the VA does not address the issue of the VA’s legal obligation that the documents in question which were in the VA’s soul custody. Should not have been tampered with in the first place. The VA and this court has an obligation to connect the dots regarding the VA having evidence before them, which proves my claim and then destroyed that evidence so the evidence in the claim file could fit the adjudicator denial, When that evidence boomerangs back into the claims file years latter. (vet had copy’s of destroyed evidence but had no idea the VA removed it from C file) Now the VA for the purpose of denying CUE. Says that same evidence is now new and material.

The VA took out 1 of the exact same page from each separate MMPI test report, One page from 1976 and one page from 1980 MMPI report. And Lost or destroyed both sister pages as admitted by the VARO & BVA. Which resulted in 25 years of denials, The two separate exact same sister pages from the two separate MMPI reports showed bar graph’s with Dr notes. The two missing sister pages from the separate MMPI reports gave an immediate visual report showing a nexus between the two and proving my right to be service connected. Until a BVA lawyer found one of those pages (submitted by veteran) and placed it with the other 1976 MMPI test results, The BVA lawyer found I should be service connected.

Reading all of the VA denials spanning two decades. One can see a deliberate attempt by the adjudicators to keep the two test results separated from each other.. The conclusions in there denials proves they were not superimposing those tests results upon one another, The raters were deliberately creating evidence free zone by removing those two pages from my claims file so there would be no instant visual proof and Dr’s notes of a nexus between the two claims. And then the raters only stated the conclusions of the two MMPI reports. Never linking the symptoms listed in the two reports which were exactly the same. The VA has custody and control over our C files. This kind of tampering of the record and adjudicators refusal for decades to follow the law requiring superimposing documents to find nexus between the two. Forces me to conclude there was a deliberate effort to keep the evidence out of my claims file so the evidence would not refute the adjudicators conclusions.

When you take the exact same page out of two separate MMPI reports which have bar graphs on those reports giving an instant visual on my mental health status and when you read those reports which had the exact same diagnostic language on them. There was an intelligent thought process behind dissecting those two pages from the file. The only conclusion that can be made is. Deliberate acts by the VA destroying records. Is clearly CUE

. The VAOIG investigated in 2010. The VAOIG found in 70% of the VARO’s shredder bins had veterans C files and documents that the VAOIG determined should be back before the rater’s. and inside veterans C file. At one VARO, amnesty was given to the ajudicators and 16,000 documents were returned to vets files.. Destroying records is a VA life style spanning decades.

In this case the VA try’s to shift there misconduct of destroying documents and explain it away as a breach of the VA’s duty to assist. The deliberate destruction of evidence should never be accepted by the court as the VA’s failure to assist. Nor should the court reward the VA for its misconduct by accepting the VA’s argument the destroyed evidence is now new.

VA AND AMERICAN LEGION MUST INFORM VETERANS OF LEGIONS .

REPRESENTING VETERANS BEFORE THE VA

VA changes my complaint against the American Legion as one of, “I’m claiming the legion committed CUE in my claim” That is not what I’m claiming. I’m saying the American legion had no right to represent me without my knowledge or permission. BVA (case # 0-6-01-630) is just one example where BVA listed on the cover of its denial that I was being represented by the American Legion. I was not told this. When I called the American Legion VSO accusing them of interloping in my case and why I did not know they were representing me. He told me they did not have time to call the veterans . I had no knowledge the American Legion was representing me. In any event. This is causing massive confusion upon the veterans. Like I stated earlier. It took 9 years of appeals and remands just to get my issue of removing evidence from the claims file to be addressed by the VA. I believed this occurred because my theory of VA’s removing evidence as CUE. Was not the American Legions theory of my claim and argued instead duty to assist. Of course the VA then gives itself permission to respond only to the American Legion theory’s leaving the veteran in the dark as to what just happened to them when they read the BVA denials.. The right to represent oneself in court is a time honored practice. This practice is being violated if veterans are being kept in the dark who is representing the veterans.

I therefore ask this court to find the VA destruction of evidence is CUE. I also ask the court to allow veterans not to be represented by VSO’s and order the VA to ask veterans permission if the VA wants to assign a VSO to there claim.

Respectfully presented Date:___________________

William T. Higgins

[john999]

In my CUE my lawyer cited claims where the VA had fraudulently altered a veteran's file or medical records and it was a CUE. What is the difference between destroying and altering if it is on purpose and the vet can prove it? The destruction of records has happened so often it is probably SOP. I lost 6 months of psychiatric records which are referred to in my discharge but nowhere to be found.

[Berta]

Terry Higgins deals with a lot.

He had many problems getting his shizohrenia diagnosed properly and finally was awarded SC.

The evidence in his decision was overwhelmingly in his favor and when I read it- I felt the VA had tried to take full advantage of his mental disability -thinking he would go away.

"Until a BVA lawyer found one of those pages (submitted by veteran) and placed it with the other 1976 MMPI test results, The BVA lawyer found I should be service connected."

Thats right! Terry ,in spite of his schizophrenia, is a very smart man.

He might well have a good point in his case here.

Thanks for posting this!

[john999]

Terry and Josephine are two vets who overcame the greatest odds due to illness and time. I don't think I could have done it. Berta is all time leader for "We shall overcome" against the VA. True Grit!

[Berta]

John- we sure have ESP

(and I also have PMS (Pissing and moaning syndrome due to the VA))

because I thought of Josephine too when I read this post earlier.

Nothing is Impossible with the VA.

That was cute what you said about true grit-I just think I have testicle fortitude (without the testicles)

[broncovet]

I applaud Terry Higgins...he has made it clear the VA destroyed evidence, and it has been covered up for decades. Tho I am not familiar with his circumstances, I know well what he is up against as the VA has destroyed not one or two but thousands of pages of my evidence.

In a "real" court, tampering with evidence is a crime. In the VA it is SOP, and has been for many years. During a VAOIG investigation, VA employees were told to "just shred a few pages at a time" by their supervisors. This employee's story was confirmed by the sheer number of Veterans affected...41 out of 57 Regional Offices. This is not a single employee not knowing what is evidence and what is last weeks Burger King wrapper. The VA continued this for years, and did not stop until Larry Scott published it on VA watchdog, which stirred up a hornets nest. Frankly, I am very suprised Larry Scott still has his VA benefits. The whistleblower act protects employees, but I do not see that it protects Veterans from retaliation by the VA.

Further, as Terry Higgins points out, the nightmare is far from over for Vets. Dr. Peake published a directive that Vets were to be given the benefit of the doubt in shredded evidence, and Terry Higgins points out this is not happening.

Its the same old coverup, and the only way to hold the VA accountable is to hit them where it hurts...right in the media.

Right now, the VA is playing management by "putting out fires" and is classic Business Management 101 "Poor management technique". The only fix I can see is to either fire top management at the VA or, to have a real leader inserted that makes it abundandtly clear this management style will not be tolerated in the future. Otherwise, this will continue simply "because they can".

[deltaj]

Terry Higgins deals with a lot.

He had many problems getting his shizohrenia diagnosed properly and finally was awarded SC.

The evidence in his decision was overwhelmingly in his favor and when I read it- I felt the VA had tried to take full advantage of his mental disability -thinking he would go away.

"Until a BVA lawyer found one of those pages (submitted by veteran) and placed it with the other 1976 MMPI test results, The BVA lawyer found I should be service connected."

Thats right! Terry ,in spite of his schizophrenia, is a very smart man.

He might well have a good point in his case here.

Thanks for posting this!

If Terry has a disability which the service records show was incurred in the line of duty, Terry needs to read the Federal Circuit decision in Groves v. Peake. I also read some of the underlying decisions at the U.S. Court of Veterans Appeals on James Grove. Somewhere in this case or another case I learned about 38 USC 310 (1970). Terry may be able to model a CUE claim after Grove's case mentioning that his service records showed his disability was incurred in the line of duty, mentioning the evidence of record at the time of the denial, the rating schedule then in effect in Title 38 CFR Part 4, and mentioning that a particular claim was denied in a particular rating decision erroneously. That CUE claim should probably be sent to VARO. Thank God that the attorney at BVA was honest when reviewing Terry's file in determining that an error had been made in failing to grant service connection for Terry's schizophrenia, but it sounds like Terry still does not have an effective date based on his original claim seeking service connected. Terry had a problem with V.A. intentionally omitting or disregarding evidence. My husband's case is similar and it is still ongoing. In about 1995 my husband made a written request to V.A. that V.A. send copies of his complete records to his non V.A. psychiatrist who was in a civilian practice. V.A. sent a box of my husband's records to my husband's psychiatrist who was outside V.A. The box of records sent to my husband's psychiatrist was an incomplete copy of his C file. In 2000 when my husband's case was on appeal, V.A. presented a bound copy of the record of appeal that was supposed to be complete but it wasn't. In both 1995 and in 2000 V.A. omitted the same four key documents: a 1970 claim seeking additional compensation for dependents, a 1970 claim requesting reevaluation which was a claim for increase, a 1971 V.A. exam showing severe symptoms, and a 1971 rating decision that denied the 1970 claim and stated the 1971 exam had been considered as evidence in the decision. Service connection had already been granted in 1966 because the service records had line of duty determinations showing the disability was incurred in the line of duty. It was not an accident that in 1995 and in 2000 the same key documents were omitted in in copies of the C file; It was deliberate. In 2011 when my husband was age 70, my husband made a written request for his records to V.A. I got mad and called the V.A. and asked why they had failed to obtain copies of records from a particular V.A. hospital that my husband had recently made a written request for records to. My husband had made a claim to V.A. back in about 1991 or 1992 that V.A. copies of those records from that hospital in support of his pending claim. My husband received a phone call from a veterans service officer at Ft. Harrison and with my husband's permission I spoke with that service officer about his case. During that phone call he asked if my husband also wanted a copy of his C file sent to him. I said, "No, he's already got a copy of his C file." We talked for awhile about additional service medical records received after the first V.A. exam and records from a particular V.A. hospital that V.A. had failed to obtain. He concluded the conversation by asking, "Are you sure that your husband doesn't want a copy of his C file sent to him?" From our conversation I knew he had looked at this C file because we discussed details from the file. It dawned on me that he was trying to tell me something so I said, "Okay, go ahead and send my husband a copy of his C file." So we got the file and about a week later I noticed the 1970 and 1971 documents which had been omitted previously. By divine providence, I had just read Groves v. Peake recently. I realized that my husband's case was a parallel case with the same laws and regulations. My husband's Congressmen and V.A. now have copies of the same letter sent to VARO.

Edited April 21, 2011 by deltaj