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?
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.
Question
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?
--------------------------------------------------------------
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
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