Will Varo Correct A Cue Where Medical Negligence By Army Doctors Is Identified?

Jumpmaster · July 2, 2012

ISSUE: The Tort statute of limitation for the Army’s medical negligence occurring in 1982 that was filed at VARO for service connection in 1991 claims has expired.

QUESTION: Can a recent discovery of the Army Doctors medical negligence evidence be justified under Tort law based on VARO conspiracy to conceal such evidence, and deny benefits for injuries and residuals effect resulting from emergency military surgery?

Pending Reopen and Rating For: SC Left Inguinal Hernia, Removal Damaged Testicle Secondary to Hernia Repair, Residuals for Nerve Damage and Lateral Scarring Secondary To Surgery, and Loss of Use Of A Creative Organ.

BRIEF SUMMARY: Severely depressed after wading in VA manure for 22 years. The framework for that 1991 VA rating denial is being posted as promised Berta, Flatbroke, Cpt. Contaminate and Carlie in recent months. Members are welcome to chime in with non-binding respectful opinions.

Mr. Veteran seeks retroactive pay, and SMC award with the effective date in April 1991 or the date of his final VAE in May 1991.

After 22 years, I received the sanitized, shredder gate version SMR, and C-file copies that VARO refused to release. St. Louis MILPERCEN could never locate my records because their system showed VARO had been in control of all record since 1991..

Secondly, I found written notes on VA Form 21-6796 and VA Form 21-6796b dated July 1991. Additional notes from the C&P Examiner dated Sept 2010, state confirmation normal scrotal contents upon induction and veteran service medical records is negative for waivers.

The 1991 medical evidence VARO raters said were negative for chronic problems is currently supported with new evidence for surgeries and treatment of the 1991 claimed conditions after retirement.

Primary care doctors IMO’s identified a medical nexus for recent treatment and my denied SC injuries above. And allowed me to recognize past medical negligence of the Army doctors and reveal the illegal clear and unmistakable errors VA raters used to conceal that medical negligence and evade liability forever.

In older posts I mentioned new claims filed 2010 are supported with private medical records, two IMO’s from my primary care doctor, and two letters of support from local VAMC doctors.

Still waiting on the Brown Envelope to land with VA’s decision. I want to see what evasive action VARO will use to not bypass the award of

1991 EED and retro pay. I am prepping for that low ball--grenade VA will throw at my fighting position.

In May 2012 the VARO called asking if I was in possession of additional medical evidence they did not have?

I felt the VARO early morning call was strange and mysterious asking me to reply using the VAF 21-4138 that would arrive soon..

I completed and returned VAF 21-4138 and asserted that medical evidence for all claims had been in their hands since 1991. Including the 1991 evidence showing medical negligence by the Army doctors in 1982 before the VA CUE decision of 1991 was made. So, any reopening for denied claims justifies a 1991 EED subject to controlling regulations applicable to the payment of monetary benefits.

I believe Berta was successful in the past getting the VARO to CUE itself and grant benefits.

Strategic Appeal Plans: If the VARO refuses to CUE itself? I will appeal direct to BVA and bypass the DRO review. Reason is that process would be a waste of my time before 2013 or 2014 arrives.

Nothing but Pissss-poor assistance from VSO’s since 2010. So, I took charge for all claims stuck in the gathering evidence phase for 2 years.

Now that I’ve reached this point. Identified past medical malpractice, and evasive tactics of the VA’s CUE.

I believe it’s time to seek Attorney representation due to the severe depression and anxiety experienced at the VARO level for many years.

No way in Hell!!---should DRO be my next stop before the BVA and CAVC based on the VARO conflicts unraveling their conspiracy for concealing Army medical negligence and denial of benefits for injuries documented by military service.

I will paste the 1991 VAE doctor notes, the VA Raters Narrative Reports, Final Rating Letter, and the 2010 C&P Examiner comments July 6^th.

I do not wish to dampen the spirit of my Veteran brothers and sisters preparing for their July 4^th celebration with family and friends.

God Bless America, All Veterans, All Wounded Warriors, and Veteran Families In This VA War!

Jumpmaster—Hobbies----Airborne Insertions into Hostile VARO and BVA Drop Zones.

Berta · July 3, 2012

Th only past post I could find here regarding your issues was within this thread that involved Flatbroke's issue:

“You asked:

“QUESTION: Can a recent discovery of the Army Doctors medical negligence evidence be justified under Tort law based on VARO conspiracy to conceal such evidence, and deny benefits for injuries and residuals effect resulting from emergency military surgery?”

FTCA Tort law does not apply to the military or even to the VARO. However this could be a case of “newly discovered service records" under 38 CFR 3.156 ©.

Have you considered,in addition to the CUE claim you filed , using 38 CFR.3.156 ©?

and many other discussions on this regulation and we did a SVR broadcast on it, on April; 25^th 2012 available here in the SVR archives.http://www.svr-radio...archives.html.3

The show link says John, Jerrel, Berta April 25^th 2012 and can be listened to via any PC media player by clicking on the icon to the left of our names.

In my opinion,in addition to the CUE claim you filed, this regulation -based on what you posted here- also could be used as an additional tactic.It might invole however, filing an additional claim sole on the basis of 38 CFR 3.156 ©. If successful ,most 38 CFR 3.156 © claims garner the same EED and retro as the initial claim filed, but that was denied.

A lot depends on two things.

Did the VA commit a legal error in the past decision you cued, via the rating sheet, based on the evidence in VA's possession at time of the alleged CUE?

And did the medical evidence raise to a ratable level at that time?

I am assuming the past rating sheet said “0” SC and not NSC at “0”.

“I believe Berta was successful in the past getting the VARO to CUE itself and grant benefits.”

To clarify-= a claimant can ask the VA to CUE itself regarding a recent decision they just made, that contains legal errors that are definitely prejudicial to the claimant. I got the VA to do that long ago, then in 2005 and most recently this past December.

My recent AO death award also resolved a formal CUE claim I had filed in 2004 regarding 3 distinct legal errors in a 1998 unappealed decision.

A formal CUE claim however, as a legal collateral attack, is filed against a past denied and unappealed decision.

It should be filed with the VARO that made the original decision and the decision date (copy of the actual past decision and rating enclosed with the CUE claim if available) and a specific statement that identifies the legal errors, constitutes a valid CUE claim, plus proving that the error manifestly altered the outcome (meaning ,but for the CUE, VA would have sent you comp)

But asking the VA to CUE itself basically means you just got a decision like I did this past December that was so erroneous that it defied even the basic tenets of well established VA case law and I raised hell-by asking them to CUE themselves ,as the decision was still in the appeal period , fresh on the rater's desk, but so legally erroneous that they had to fix it fast. And they did.

I think most claimants considering this tactic (asking VA to CUE a recent decision on a pending claim)

should immediately get the advise of a vet rep or be able to whip out pertinent VA case law, 38 CFR and M21-1MR to support this type of request and file it ASAP.

Edited July 3, 2012 by Berta

Jumpmaster · July 6, 2012

Good

Good Morning Berta thanks for replying. Yes, 156 happens to be one option of choice for EED. I have other evidence supporting CUE but its too much to consider posting. My focus now is on violation of statutory laws and denial of Comp and SMC.

Attachments related to the VA’s 1991 illegal and derogatory CUE decision are attached. Please take a few days or weeks to analyze and give me your nonbinding humble opinion. I am not going anywhere. I don't expect any brown envelope to arrive before 2014 at the earliest.

VAF 21-526 dated 5 Nov 1990 describing nature and history of disabilities with a written reference to (H3 Hearing Loss) and includes DD form 2215 Reference Audiogram dated 10-19-90 as an attachment submitted during a Pre-retirement forum.

VAF 21-2545 Report of Medical Examination for Disability includes 2 pages of VAF 10-9034a attachment s dated 5-10-91.

VAF 10-2364, VA Audiological Evaluation Report dated 5-10-91.

VA Rating Letter 2 pages, dated 7-29-1991 written in a manner to deceive the veteran as to the reason for denial of claims based on use of evidence SMR 01-78 to 03-91 and VAE of 05-10-91.

VAF 21-6796 and 2 pages VAF 21-6796b, VA Rating Decision and Rating Decision Continuation Sheets dated 7-8-91

C&P Examination Progress Notes and Compensation Assessment Copy 4 pages, dated 10-3-2010.

Background History: Mr. Veteran had continuous active duty service from 1970-1991. His medical history from date of induction and throughout his military career spans 21 years and is negative for medical waivers and pre-existing conditions. All positive SMR evidence to allow or deny SC injuries was in the hands of the VAE doctor and raters before that final decision. I believe those raters are in violation of statutory law due to a clear failure to analyze positive medical history and do a sympathetic reading of SMR evidence, developing any potential claims raised by such evidence to its optimum as is required to make any informed (honest) decision. Honesty from the VA in 1991 was truly expecting a bit too much knowing their history and adjudication track records ever since the Agency was established.

The rating letter reason for denial is clearly contradics the VAE notes and the raters written notes on the rating decision sheet. The true denial reason for the hernia residuals does not appear anywhere in the letter. The deceptive letter did not cause Mr. Veteran any stress or concern that hernia residuals were not considered to be an employment handicap.

Fast forward post retirement 18 month and the ticking bomb explodes----2 bilateral knee surgeries private hospital for the same conditions complained about in VAE of 5-10-91, more chronic lumbar pain, and hernia residuals additional surgeries. Contacted VA and they withheld records, refused to honor FOIA requests many years. Why???

The Inglorious Bastards were busy destroying evidence showing their CUE and malicious conspiracy for evading responsibility for claimed SC injuries resulting from medical negligence by the Army Doctors.

Jump Master

Berta · July 6, 2012

“Yes, 156 happens to be one option of choice for EED. I have other evidence supporting CUE but its too much to consider posting. My focus now is on violation of statutory laws and denial of Comp and SMC “

The July 8,1991 rating decision gives no % for any of the claimed conditions.

VA felt these were not at a ratable level.

Based on the info here I see no basis for a CUE claim. Others here might disagree.

If you have SMRs that were definitely never considered by VA and you have medical evidence ,documented within the first year after your service, and continuing to current date, that any of these listed disabilities should have been rated,

I suggest you obtain the help of a Veteran's service representative to see if 38 CFR 3.156© would be a strong basis to reopen this claim.

I dont understand what triggered the C & P exam of 9/9/2010 and I see that no medical records were considered.Was this for a new claim?

A CUE in a rating decision can only occur regarding established and documented medical evidence.

This would also require proof of inservice medical conditions raising to at least 10% disabling.( a ratable level)

If the VA failed to have at time of this 1991 decision, your complete SMRS, the complete SMRs could possibly help a vet rep prepare a claim on either CUE basis, or the 38 CFR 3.156 © basis.

“Fast forward post retirement 18 month and the ticking bomb explodes----2 bilateral knee surgeries private hospital for the same conditions complained about in VAE of 5-10-91, more chronic lumbar pain, and hernia residuals additional surgeries. Contacted VA and they withheld records, refused to honor FOIA requests many years. Why???”

Did you re-open the claim at this time? Is it possible the private doctors could provide a medical opinion as a nexus to your inservice MOS ? DO you have copies of those private records to show the vet rep? This could be the basis for a potential new claim, since being a Jumper could certainly have had great impact on your knee problems. But this would take a strong Independent medical opinion-one which maybe the private doctors could provide (that follows the IMO format here in the IMO forum)

“The Inglorious Bastards were busy destroying evidence showing their CUE and malicious conspiracy for evading responsibility for claimed SC injuries resulting from medical negligence by the Army Doctors. “

The VA does not care about military malpractice.

Neither does the Supreme Court:

http://www.stripes.com/news/supreme-court-deals-devastating-blow-to-feres-doctrine-opponents-1.147604

The VA can only rate residuals of inservice surgeries- whether they result from malpractice or not.

I hope others will chime in here with their opinions,too.

Berta · July 6, 2012

Just to add to my suggestion that a new claim could possibly be filed:

There are claims at the BVA web site which show that your MOS could have caused a service connected disability:

In part:

“Finally, in two April 1993 statements, a private physician

stated that the current bilateral knee disorder was

consistent with the appellant's history of parachuting in

service. These statements satisfy the third and final

element of a well-grounded claim. See Epps, 126 F.3d at

1468; Caluza, 7 Vet. App. At 506. “

and

“In this case, with respect to the right-hip-disorder claim,

the Board determines that such reasonable doubt exists.

While the record does not include a clear medical link

between the current right hip disorder and service, it does

show that the appellant was a paratrooper in service, and

that he has had extensive right hip symptomatology consistent

with that in-service activity. Resolving all reasonable

doubt in the appellant's favor, the Board determines that the

evidence supports the claim of service connection for

arthritis of the right hip. “

(CONTINUED ON NEXT PAGE)

ORDER

“Service connection for degenerative joint disease of the

lumbar spine is granted.

Service connection for bilateral degenerative joint disease

of the knees granted.

Service connection for right hip arthritis is granted.”

http://www.va.gov/ve...es2/0012751.txt

While this claim cannot be used as evidence , it is ,in my opinion, reasonably possible that your knee disability, requiring surgery within 18 months of your discharge,

had no other known etiology but for the rigors of parachute jumps.

Meaning, unless your fell off the roof of your home, or had a severe car accident or any other other post service knee injury in those 18 months, then with a strong medical opinion, the VA would certainly consider your MOS as a potential cause for the knee problem and maybe other problems you mentioned here too.

I need to add as well, my husband is dead due to VA malpractice.

The VA resolved that situation the only way they could.

But I still get angry about it and I was so angry when I filed initial charges against them under FTCA, that I overlooked an additional malpracticed disability, and didnt file that claim for almost ten years after he died.

My point is that anger clouds our vision when we try to deal with the VA.

I feel you should let the inservice medical error situation go , and I foresee no recourse to it, and focus on getting Service connection established for your current disabilties.

This discussion on another vet's site might help you:

http://vets.yuku.com...ms#.T_bqSfUczTw

And the private doctors who operated on your knees might have already opined in those medical records, on the potential cause of this disability ,as to your MOS.

Edited July 6, 2012 by Berta

Jumpmaster · July 10, 2012

Berta, Thank you for your input---I see 38 CFR 3.156© as the warm and fuzzy, touchy-feely method to reach EED. While turning the other cheek and ignore the clear and unmistakable errors for clear misapplication and misinterpretation of statutory law by the VARO.

Please do not take my comments as being unappreciative because that is not my intent.

I believe--CUE Injustice by the VARO and violation of statutory law is a crime against all veterans. In my eyes--- It’s not What you know? How much you know? But in the end the credible evidence turns on. What you can prove beyond reasonable doubt? That ultimately causes a positive claim outcome. I am a true fighter and warrior! And the VARO will never see me tuck my tail between my legs, cower down, and surrender due to intentional VA rating delays in my VA War!

Berta: In my opinion, in addition to the CUE claim you filed, this regulation -based on what you posted here- also could be used as an additional tactic. It might involve however, filing an additional claim sole on the basis of 38 CFR 3.156 ©. If successful, most 38 CFR 3.156 © claims garner the same EED and retro as the initial claim filed, but that was denied.

In this case SMR evidence (1970-1991) was not missing and had been reviewed by the VA Doctor before and during the VAE. The rater error considered a partial review only 01-78 to 03-91 and VAE 05-10-91. Ignored induction medical and continuous active service medical.

Berta: A lot depends on two things.

Did the VA commit a legal error in the past decision you cued, via the rating sheet, based on the evidence in VA's possession at time of the alleged CUE?

And did the medical evidence rise to a ratable level at that time?

Yes, Berta all claimed conditions/injuries based on medical evidence (1970-1991) rose to a conservative minimum 10% rating due to chronic pain and residuals, and possibly higher.

The attitude of (Beavis, Butthead and Dumber) the three VARO raters. Was clearly illegal, prejudicial, and failed to consider the “whole man concept” during the evaluation of “medical evidence” in their hands. The interjection of their malicious personal feelings, affected the probative value for the (1970-1991) “no medical waivers evidence.” Without a thorough and conscientious study, that in the end significantly affected the compensatory decision and outcome for all claims filed.

I am assuming the past rating sheet said “0” SC and not NSC at “0”.

Berta your assumption is correct.

Inguinal Hernia is rated under diagnostic code 7338, but it is not shown on the rating sheet and creates the appearance there was never a hernia injury resulting in long term (1983-2012) chronic residuals.

Code 7805 relates to scars--- but on the rating sheet it states “Residuals left inguinal hernia, with surgery for (UT) 0% from 4-1-91. The rating letter does not identify UT as being the clear specific reason for the claim denial. I see this as deception of true facts used to conceal their CUE violation of the “presumption of soundness law” and not cause an immediate appeal.

The VARO violation of statutory law for its “prejudicial decision” is based on the first view of a clear and erroneous UT assertion. Where all SMR evidence from (1970-1991) in their hands was negative of any preexisting medical waivers.

The VARO rater’s malicious conduct and illegal errors violated the law and was done with the primary intent to cause harm and deny my entitled benefits.

Rebutting the presumption of soundness without having clear and unmistakable evidence to do so was a clear violation of VA statutory laws and regulation existing in 1991.

The VARO misinterpretation of medical terminology for (UT) and misapplication of statutory law for the “presumption of soundness” did not rely on clear and unmistakable evidence, proving the inflammatory and unfounded assertion for “undescended testicle” (UT) did preexist military service, and was not further aggravated or injured as a result of military service as required by VA law.

The VARO abuse of the legal process and pre-judgment of the term UT without accurate verification for its use in the medical arenas, and foregoing the sympathetic assessment of the true facts by not reading a medical dictionary, would have prevented a revisiting of this “presumption of soundness” CLEAR AND UNMISTAKABLE ERROR violation of statutory law in 2012.

The VARO illegal violation of statutory law entitles the veteran to the highest rating possible for the left inguinal hernia 7338, and hernia residuals for a large scar, with deep tissue and nerve damages, and the damage and loss of use of a creative organ , and lastly SMC for the service connected injury.

6260 Tinnitus/Earache—the military medical evidence and VAE established a history of high frequency hearing loss and chronic tinnitus before my retirement. Title 38, Part 4 Schedule for Rating Disabilities. 6260 Tinnitus, recurrent................................................................................................. 10%

Berta Comment: In my opinion, in addition to the CUE claim you filed, this regulation -based on what you posted here- also could be used as an additional tactic. It might involve however, filing an additional claim sole on the basis of 38 CFR 3.156 ©. If successful, most 38 CFR 3.156 © claims garner the same EED and retro as the initial claim filed, but that was denied.

But asking the VA to CUE itself basically means you just got a decision like I did this past December that was so erroneous that it defied even the basic tenets of well established VA case law and I raised hell-by asking them to CUE themselves, as the decision was still in the appeal period, fresh on the rater's desk, but so legally erroneous that they had to fix it fast. And they did.

I think most claimants considering this tactic (asking VA to CUE a recent decision on a pending claim) should immediately get the advice of a vet rep or be able to whip out pertinent VA case law, 38 CFR and M21-1MR to support this type of request and file it ASAP.

I’m considering Attorney Representation after receipt of the Brown Envelope before planning my offensive maneuvers against the VARO or BVA to correct this defamatory CUE violation and if the EED is not granted in that forthcoming decision.