ptsd No Timeline After Cavc Reversal For Cue

[Deepwater sailor]

A veteran's story... after service.

A difficult, but true story with a warning to Veterans. Fore-warned is forearmed.

Like many others, I enlisted in the military, to do my part. It never occurred to me, beforehand, that such as this story would occur.

I find most veterans are reluctant to discuss their ‘stressors’. After years of experience with VA hospitals, I don’t remember anyone ever telling me what happened to them. Those painful events are personal, private and burdensome.

I don’t want to discuss my ‘stressors’ either; suffice to say they occurred and I struggled with them for years, before I sought help at Fort Harrison, MT.

The process being what it is, I received many demands for information and ordered to numerous examinations. At the end of each communication, VA threatened to dismiss my claim, if I did not comply.

With each new demand I spent days or weeks struggling with my memories and flashbacks, trying to meet VA’s requirements of the moment. For those fortunate enough not to understand that struggle, hours and sometimes days are lost to thoughts and overwhelming states of mind. Staying on task is usually very difficult, if not impossible.

Each new brief submitted by VA was rife with errors. Often it required eight to ten pages to correct the critical errors made by VA’s claim of the “facts”. The true facts were in the record and the errors were always skewed to my disadvantage. VA’s inability to get it right has made for me some very dark years.

I submitted to numerous Compensation & Pension (C&P) examinations. The consensus was: “chronic & severe PTSD”. Unsatisfied with these diagnoses, VA requested some of the doctor’s change their diagnoses. These requests were illegal and fraudulent, they are also in the record, much to VA’s chagrin and I suspect that of the doctors involved.

Once the first examiners had reversed their diagnoses per request, VA set about having the record and examinations reviewed by numerous other doctors, who expanded on the fraudulent opinions with even more fraud. At one point an examiner stated I was not credible because I had “requested” so many C&P exams. Fortunately there was an honest physician that pointed out I had not requested the examinations, but had been ordered by VA to comply or have my claim dismissed.

After several years of treatment, a doctor recommended I seek representation by a service organization. Up to that point I had merely jumped through the hoops required by VA. I did not understand the process. In hindsight, a veteran should not need to understand the process or deal with a predatory VA. Their service should be honored by an honest and forthright Veterans Administration, as promised and as required by law.

Disabled American Veterans (DAV) was recommended to me and I made numerous efforts to enlist the help of DAV, only to be rejected by Mr. K.G. in his condescending manner. His reason… I had begun by talking with someone else. This seems absurd, but nonetheless true.

After seven years of submitting to VA’s process, my claim made it to the US Court of Appeals for Veterans Claims (CAVC), in 2006. I retained representation by B&M, a veteran’s law firm in Bethesda, MD. During that time, the Court decided I also needed to be represented by a service organization. My attorney informed me of this and asked whom I wanted to give Power of Attorney (POA), for my claim. I explained to the attorney that I had tried to enlist DAV’s help, but Mr. K.G. had refused to accept my POA.

The Court assigned DAV to my claim and my attorney and VA jointly agreed to remand the matter. My attorney told me remand was "the best I could hope for". Although in the end, the facts that won the Court’s reversal and my service connection were of record and in his possession, when he said remand was "the best I could hope for".

When I approached Mr. K.G., expecting help with the next step, he made it plain that he resented being assigned by the Court. He accused me of “some underhanded dealings” and said “Go home… don’t do anything… don’t call anybody, don’t write anybody… and don’t come back to this office”. I have not gone back and I will never forget his words.

Eight years later, my claim made it back to CAVC, with B&M representing me again. My attorneys began again saying remand was "the best I could hope for", but this time I refused, up front, to accept a remand and insisted they read my statements concerning VA’s fraudulent prosecution of my claim and seek reversal of VA’s denial of benefits.

With a small and insignificant exception, B&M’s brief to CAVC in 2014 was a reiteration of my statements. While I am grateful for B&M’s assistance and the Court’s reversal of VA’s denial, granting me service connection, I have to wonder why the facts were not viewed the first time, eight years prior. The facts used by CAVC in 2014 were present in the record in 2006 when my “best hope” was remand.

My attorneys were well paid for their service. With the Court’s reversal in hand, they correctly predicted that VA would “drag their feet and low-ball my rating”. Then they offered to prevent this continued injustice and see that the Court’s orders were carried out… for a 1/3 share… which was over 5 years of benefits. I declined their offer, believing that the Court’s orders must be carried out… period. Shouldn’t they? I’m beginning to wonder!

In a few days, it will be a year since the Court granted my service connection. To date, I have received a form letter from Fort Harrison, MT confirming receipt of my claim from CAVC and the Court’s decision, but nothing else. Not a word.

In the Court’s decision, the law requiring expedited handling is quoted and ordered. After months of nothing, I inquired about the required expediting only to be told they “only pay lip-service to that law”. Lip-service only… to the law? That’s outrageous.

About that time, a public relations person from B&M’s office contacted me, wanting to use my name & picture in their professional advertisements, because “reversals are rare”. I expressed my desire to remain private and again explained that their desire for 1/3 of my benefits was unwarranted.

The PR person stated maybe one of the attorneys could make a phone call on my behalf. That was many months ago and I have not heard from them again.

In desperation (I’m about to lose my home), I recently sought ‘un-official’ advice from another service organization, since DAV still refuses to assist me. The other organization found that CAVC’s decision has “not been entered into the computer”. The reason and remedy were unknown. Their advice: be patient. At this point, I have been patient for 16 years.

This other person sent a note to Mr. K.G. at DAV, about our conversation. A few days later, I received a call from DAV, the first since 2006. The woman that called was very smug and reminded me that DAV has my POA. I explained that Mr. K.G. refuses to assist me and I am about to lose my home, to which she said I’d “just have to wait”.

Why am I writing this? I hope it will find the eyes of someone that gives a damn about the law and injustice. And I hope veterans that find themselves in need of assistance will read this and not be hoodwinked as I have been, for years upon years.

Too… I wonder how CAVC Judge S. would feel about “lip-service” to the law and his order.

Sincerely,

Edited May 30, 2015 by Tbird
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[Buck52]

in your better interest I recommend you seek a good Veteran Law Attorney!

Although you can get great advice from Ms Berta and other elder members here on Hadit!

...........Buck

[FormerMember]

Dear Joseph,

Wowser. There's so much wrong with this, I'm not sure where to begin.

<<<At the end of each communication, VA threatened to dismiss my claim, if I did not comply.>>> Impossible. You obviously read more into it than was there. If you have it in writing, I can guarantee you hundreds of thousands of dollars in equitable relief from VA Secretary Bob McDonald.

<<<<Unsatisfied with these diagnoses, VA requested some of the doctor’s change their diagnoses. These requests were illegal and fraudulent, they are also in the record, much to VA’s chagrin and I suspect that of the doctors involved.>>> Again. Impossible. If VA was foolish enough to send a commo to a doctor ordering him/her to rescind a dx, it would be in the c-file. I see no mention of you saying you have possession of same. The CAVC Record Before the Agency (RBA) does not support your version of the claim. VHA doctors are not at the beck and call of the VBA.

<<<<<<At one point an examiner stated I was not credible because I had “requested” so many C&P exams.>>>>> You are not allowed to request an exam. VA is the only one who can order one. It also has to be in conjunction with a pending claim. If you show up for one before you file your claim with an 8-page summary of why you should be awarded PTSD and the exact rating %, VA will get the idea you didn't just fall off the turnip wagon and might be in this for the $.

<<<<Disabled American Veterans (DAV) was recommended to me and I made numerous efforts to enlist the help of DAV, only to be rejected by Mr. K.G. in his condescending manner>>>> Again, improbable. Unless you actually had a POA with another VSO, DAV would have snapped you up for the $250 POA fee from VA. They are driven by money. The BVA decision rebuts your statement. It states you were repped by DAV.

<<<< I retained representation by B&M, a veteran’s law firm in Bethesda, MD. During that time, the Court decided I also needed to be represented by a service organization. >>>> Impossible. You can only be represented by one entity at a time. First of all, VSOs do not have attorneys-ergo they do not go to the CAVC to represent anyone. If Bergmann and Moore offered to represent you at the CAVC, it was for the limited objective of pro bono work on the appeal. Unless you contracted with them for post-CAVC work on the remand, that would be the end of your business relationship with them. Second, A CAVC judge cannot order you to be represented by anyone

<<<<The Court assigned DAV to my claim and my attorney and VA jointly agreed to remand the matter.>>>> Impossible. The CAVC assigns no one to anyone and has no control over who represents you legally. You're horribly mistaken or subject to flights of fancy. Please reread your CAVC reversal (13-0218). You will find no mention of this and a review of the docket run doesn't show it either.

<<<My attorneys were well paid for their service. >>>> What have you been smoking, cowboy? The lodestar for EAJA fees tops out (in 2015 $) at $187/hour. A good ambulance chaser can get $450/ hour or 40%. You must not be in the loop on VA law dog fees these days. 20% is the law determined by Congress. You contracted with B&M for pro bono only at the CAVC. They didn't get 20% of anything.

<<<After months of nothing, I inquired about the required expediting only to be told they “only pay lip-service to that law”. >>> I hope you have that on audio tape or in writing. File it with your Extraordinary Writ of Mandamus and you'll have your $ in 60 days- including sanctions. Gotta be proactive in this game. You can't sit on the front porch with a pair of binoculars watching the mailbox.

<<<Then they offered to prevent this continued injustice and see that the Court’s orders were carried out… for a 1/3 share… which was over 5 years of benefits.>>> This is libelous and untrue. No VA attorney can charge more than 20%- period. The attorneys at Bergmann and Moore, while perhaps not the brightest lights on the Christmas tree, are officers of the court. They are obligated to obey the law. If any one of their staff offered this to you, they would lose their license not only to practice VA law, but their credentials at the CAVC,the Fed. Circuit and the Supreme Court as well. Further, they would be disbarred from practicing law entirely in the state they are incorporated in. I could almost believe this tale of woe until you stated that. If you have it in writing, which I know you do not, I'd like to put you in touch with any number of attorneys who would die to have your case. They would be famous for life and Bergmann and Moore would have to take down their shingle.

<<<In desperation (I’m about to lose my home), I recently sought ‘un-official’ advice from another service organization, since DAV still refuses to assist me.>>> File a notice of financial hardship with the Ft. Harrison VARO and send them proof of eviction, unpaid bills, foreclosure statement, etc. You'll have it accomplished in about a month. Better yet, call or email Allison Hickey and explain this faery tale and she'll have it done in three days. I'd skip the part about Bergmann offering to do it for 33%. You'd get more traction telling them Glen Bergmann was abducted by aliens in his youth. Or, if they do, they will investigate B&M up one wall and down the other. If your allegation is untrue, you are liable for slander and they can sue you--and they'll win.

<<<Too… I wonder how CAVC Judge S. would feel about “lip-service” to the law and his order.>>> The only CAVC Judge with the last name of S. is Judge Mary Schoelen. I have met her personally and trust me when I say she did not have a sex change operation unless it occurred after April 18th of this year. Are you sure you aren't talking about an encounter with some Judge "S." over at Social Security?

There's so much wrong about this story as to impugn your credibility. First of all, the moment you enter the CAVC, all your privacy goes out the window. I know. It sucks but that's the law. I looked up your case, sir. It's right here (CAVC 13-0218) and I find nothing by Judge Schoelen "assigning" a DAV rep to your claim. Glen Bergman was awarded $14,500.00 for representing you- hardly an exorbitant settlement for his services from 3/27/2013 when you hired him through the EAJA dance December 9th, 2014. Your BVA decision (02-05 667) clearly shows you were represented by the DAV during the whole claim at Fort Harrison, Montana so either you disremember what happened or you have a grudge against the DAV. Nowhere in the BVA decision does it reflect that any doctors' false diagnoses or revisions of prior diagnoses about your mental state.

It is important to stick with the facts so we teach other Vets how to accomplish this. Wild-eyed reports of treacherous lawyers and evil DAV reps are not a positive example of responsibility when reporting back what happened. I understand you suffer from severe PTSD but that cannot be the predicate for grossly misrepresenting the history of your claim. No one, least of all Vets, benefits when you distort the true facts. In this case, anyone with a elementary school education can follow your trail of breadcrumbs and see the inconsistencies. I don't mean to bash you or demean you. I merely wish to point out this is a forum to teach from-not to malign VSOs or the VA. As for Mary Schoelen, the Judge is unimpeachable. She comes from a military family and has the utmost respect for law. She would no more order a Vet- any Vet, for that matter- to obtain VSO representation. Good lord, Peter. She comes to us from the best of judicial outfits- the NVSLP and NOVA. Are ya kiddin' me? I could see her suggesting you go out and get better legal representation than B&M but even that would be highly unlikely due to her professionalism and judicial mores. If you don't know the gender of your Judge, you may have had trouble digesting the rest of the facts.

The VA and the VLJ attacked your credibility for a number of reasons. You claimed Seaman Boyll died right there in front of you from his burns but he didn't die for three more days. You did not cite this as one of your stressors when you filed the claim earlier. You see the problem? It looks to VA like you were making it up as you went along. I, for one, believe you because you are a fellow Vet. VA doesn't just buy into that logic. Every one of us is trailer trash and out for a quick compensation buck in their eyes. Let's not give them any more ammunition to think that.

And as a last footnote. Mr. Bergman asked for reversal in the Appellant's brief-not another remand. You stated above "My attorneys began again saying remand was "the best I could hope for", but this time I refused, up front, to accept a remand and insisted they read my statements concerning VA’s fraudulent prosecution of my claim and seek reversal of VA’s denial of benefits." Whereas Mr. Bergman stated "On appeal, Mr. S. submits that the Court should reverse the Board’s denial of PTSD service connection, and its finding that the Secretary satisfied the duty to assist. The Court should also hold that the Board erred by not remanding for compliance with its prior remand instructions, and failed to provide an adequate statement of reasons or bases."

Law is a matter of record. In your case, there is a wealth of it. You cannot reinvent it or view it through rose-colored sunglasses. Mr. Bergmann won your claim in it's entirety. Had you allowed him to pursue it to it's logical conclusion at the Fort Harrison VARO, you would not be in financial straits now. That is the difference between DAV LeagleBeaglezoom.com and a good VA attorney. You get what you (don't) pay for. J1VO

Edited May 27, 2015 by asknod

[Berta]

Alex, a few things seemed very strange to me here too....

Deepwater sailor, we are hardcore claimants and many here have expertise on PTSD......

You seemed to indicate here that you never would reveal your stressor to the VA but are SCed under this CAVC decision for PTSD now ?

I have dealt with PTSD vets since 1983 and wonder how the heck you did that because it seems to be impossible, and if you have a secret for that it would be worth millions.(UNless you have the CAR, CIB, or PH on your DD214 and VA failed to notice it until the CAVC did.????

I think we are all jumping the gun here because we have no documentation of the facts....although I agree with many of Alex's points..... as to B & M being well paid but how????.....

You can sure help us figure out what is going on if we can read the actual CAVC case here. I don't think it says what you might think it says.

Buck said

"Although you can get great advice from Ms Berta and other elder members here on Hadit!"

Our advise is based on the facts we can glean from posts here, and this is why we often ask for an attachment of decisions.

Facts that are in the words of or on the letterhead of the Veterans Administration.,or the CAVC.

[Buck52]

Sorce: US Court of Appeals

What is a petition and how do I start it?

This Court has the authority to issue extraordinary writs in aid of its jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998). The writ "has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.'" Will v. United States, 389 U.S. 90, 95 (1967) (quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943)). However, "[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). Pursuant to 38 U.S.C. § 7261, this Court is authorized to compel action of the Secretary which is "unlawfully withheld or unreasonably delayed."

Before the Court may issue a writ, three conditions must be satisfied: (1) The petitioner must demonstrate that he or she lacks adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that the issuance of the writ is warranted. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).

[lotzaspotz]

I agree with Lotsaspotz, but your Writ will be better recieved if you have written to VARO "at least twice" before your Writ.

Its been 3 years since my Board decision, and its still not implemented. I wrote to Allison, who wrote to my RO director. He "doesnt want" to implement the Board decision, but wants me to "be patient" as there are other Veterans ahead of me. 3 years is just too fast to move for him, I guess.

A CAVC Judge might feel differently about this. There is no way three years can be interpreted as "expeditious." It's worth the $50 filing fee or the request for a fee waiver due to financial hardship to find out.

[Berta]

Broncovet said :

"I agree with Lotsaspotz, but your Writ will be better recieved if you have written to VARO "at least twice" before your Writ."

I agree. The Rules of Procedure and criteria for a Writ are quite clear. You must have exhausted all remedies prior to filing the writ as it is not a "substitute" for the appeals process.

In other words if you have an appeal pending, there must be an extraordinary circumstance.

This is what I mean.I have numerous emails to and from VA,since writing to Ms. Hickey in late February.

First came 2 denials and then came 2 awards....each denial had 4 CUEs in them, and I emailed my claim of the new CUEs to both Ms. Hickey (March) and to the Director

I got 2 awards. April, 2015.

I filed CUE on one of the awards. It is still wrong.

This situation grew out of a CUE claim I filed in 2003 (stroke) and a CUE claim I filed in 2004 (IHD)

Those claims sat at my VARO until 2011.(awarded) because a different RO (Phila) read the CUE evidence for the first time.

My AO DMII claim took from 2003 to 2009 because the BVA was th sole VA entity to read my evidence for that claim.

The RO refused to refund my FTCA offset, clearly refundable under their offset regs ( because I negotiated only a partial offset with the GC) about 8 months passed.They refused to read my evidence and the regulations and even a past BVA decision I got that stated what they should do.

I had to call the GC and bug them and then Richard Hipolit , General Counsel Attorney, sent them a letter telling them to pay me.

The lies in my husband's lifetime they wrote to 2 Senators and Congressman Houghton about my husband's SSA records, is evidence included in my writ .It caused his PTSD claim for higher rating to take about 6 years.

They refused to read the evidence in that case as well, He had been dead for 3 years before that 100% PTSD award came.

In 1998 they committed the CUE I filed on in 2003 and 2004 and awarded in 2012.

What they did during processing of my FTCA case ---I already told how low they will go there....

again a refusal to read my evidence at this RO, and then deliberately 'forgetting' to send it to the General COunsel.

Only because I was quick to call VA Central and get a hold of their medical team ,did I find out the underhanded things the Buffalo RO had done to screw that up. FTCA settelment Awarded in 1997.

All of above and more evidence I have shows that I am in an extraordinary predicament.

As part of my citations I am quoting Dr. Phil in my writ:

"Past behavior predicts future behavior"

True to their response to every claim I have ever filed, the RO still fails to read my evidence for my pending CUE issue.

They turned everything above (and more) into a battle that did not need to occur.

All but the FTCA battle occurred when I was a member here....over the past 17 years.

I stated in my writ that I am not a VARO employee and not able to teach them how to read 38 CFR 4.6 . , a regulation so basic to proper adjudication that there are probably many more similarly situated ,like me,

unable to have our basic rights extended to us, in order to deny the claim and force us into a backlog that VAROs have caused.

I also had emails to a from Regional COunsel and General COunsel during th last 2 months on this 38 CFR 4.6 issue.I sent one more just to draw them out yesterday.

OK, I can prove my situation is beyond the normal (extraordinary)

Then I need to prove I have exhausted all remedy...I have countless emails to and from VACO and my RO to prove that.

Then yesterday...this is a tip...I emailed everyone at VACO who had been CCed in on emails from Ms. Hickey, telling them the emails they received from Ms Hickey are evidence I have for my writ.

One VACO employee suddenly emailed back to offer to help and will call me today.

As Dr Phil says, 'past behavior predicts future behavior' so I have no idea what help that he can provide.He is the Chief of Quality Review and Consistency, at VA Central.

If anyone here sent Sec Bob or Ms Hickey emails that were cced to others, you should contact them, if your matter is not being resolved.

Our emails on our claims issues are not idle gossip ,so if they were CCed to many VACO employees and other federal email accounts, you would think one of those individuals would have a response to you or at least be aware of the situation.

In my case they got the whole 9 yards on this violation of 38 CFR 4.6.

I must admit that by the time I got to sending this VACO individual an email, I got a little tougher then in the other emails and at least it produced a response that will generate a call today.

maybe.... if not on more piece of evidence for my writ and my multiple attempts, with a documented history over 20 years of many Wars of the Words,

from a widow whose husband was killed by VA itself, who cannot get her probative evidence read at all by well paid federal employees at the Buffalo VARO ,m for a CUE claim I filed in late 2012..

They awarded the additional 16 or 18 months ,as uunder 1151, a victory there, and acknowledged my valid accrued status, but said there would be no accrued.payment in addition to what they paid in 2012 ( 6 months at 100% under 1151, plus 2 dependents and SMC S)..and never gave me any legal reason why.

This is of course a 5 figure award. That is a factor as well.

.

....

Edited May 28, 2015 by Berta