CAVC Briefs

[Lemuel]

Is this motion to correct the Record Before the Agency in order or does it need some adjustments?

 

IN THE UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

 

Lemuel clayton bray Appellant, vs. DAVID J. SHULKIN, MD Secretary of Veterans Affairs                                            Appellee,

Docket 17-2990 Motion to correct the rba

 

This motion is brought under Rule 10 (b). 

There are many missing items from the RBA relevant to my claim and appeal.  While most of the items are not relevant to the NOA current issue, they are relevant to the BVA Remand and bode for causing a return to the CAVC if not obtained.  Obtaining a carefully copied new complete copy of the Medical Division OPTRs and IPTRs from the VA Records Management Center should provide most of the missing evidentiary documents and in a reasonably organized fashion not including much of the superfluous and disorganized documents in the RBA.  The rest can be obtained from the Communications Division in the VA Central Office.

Missing, specifically, but not limited to:

1.      Missing 5 months of OPTRs for Seizure Clinic visits at the West Los Angeles Medical Center that started 2 weeks from 9/17/90, reference RBA pages 3290 (page1) beginning & 3289 (page 2).

2.      Missing 6 or more months of OPTRs for Spine Clinic or Back Clinic reference RBA 2996 dated 9/12/91included in IPTRs.  Appellant has a copy of the 10/28/91 visit which is now missing from the IPTRs but dates the visits from April 1, 1991 in the copies provided by Cheyenne VARO.

3.      Neuropsychological Assessment, undated, but dated by Progress Note on RBA page 3343 as 8/16/91 in IPTRs.  Appellant has a copy of this from the hard copy of the file sent to Appellant by Cheyenne VARO.

4.      1-5-90 X-ray report of X-ray ordered on RBA page 3256.

5.      Multiple additional hard copy radiographic reports that will be in the Medical Division OPTRs and INPTRs.

6.      Denver VARO internal memos and VAOIG letters responding to the Appellant’s alleged failure in getting a DRO hearing in Cheyenne, before the closure of the 1/22/1992, in addition to The Denver VARO letter dated JUL 20, 1998, RBA pages 2626 thru 2628, claim appeal on June 19, 1995.  I have an interoffice memo provided to me by the Communications Division in the VA Central Office last year.  It is available from the same resource to the Appellee’s attorney for inclusion in the RBA as are probably many of the other missing items.  Use the Denver VARO JUL 20, 1998 letter to the VAOIG as a reference point to get the memos.

7.      Denver VARO letter of June 19, 1995 Closing the appeal of the 1/22/1992 referenced on RBA pages 2626 & 2710.

8.      The missing letters from me stating periods of unavailability for a hearing because of traveling for obligations to family and friends including the transfer to DC when the hearing hadn’t been provided while I was in Wyoming before my move to DC.  The letters are detailed on that interoffice memo provided to me by the Communications Division in the Central Office last year.

The RBA is 4529 pages long and is not in any way correlated to the 3151-page CD that I received dated 2/15/2017 which I have done considerable work on.  I may have to referenced pages from that CD as 02/15/2017 CD that I have not yet found in the RBA.  I can forward to the attorney for the Appellee via Adobe Creative Cloud or by Fax broken up for large files, as the attorney requests by phone or email, items that I have that escaped becoming paper mashie from water damage from my original copies, or from the hard copies sent to me by Cheyenne VARO in 2015 or were on the 1420-page CD provided to Attorney Ellermann for the BVA hearing. 

The items that I do not have, have been previously requested by FOIA on numerous occasions and responded to with items from the C&P file in a non-denial denial response.  “This is all of the records we have,” quoting the letter dated, February 9, 2017, (RBA page 1056) from The Records Management Center in response to my FOIA of August 11, 2016, (RBA 1399 thru 1405).  Quoting from my letter:

“I’m requesting all C&P Documentation that was not included on the CD provided to my attorney, Vanessa Ellermann via correspondence dated March 28, 2016.

There is a big gap from the time I was in Japan until 2009.  In that time I had a claim and an appeal that is either incomplete or denied that there is no documentation of on the CD.

Also, I’m attaching a previous request for Medical Division copies of Medical files to replace documents that have gone missing from my C&P file.”

The Record Management Center is under the Appellee’s jurisdiction and is not responding with the missing items from the hard copy of the pre-computerized Medical Division OPTRs and IPTRs which fall under the jurisdiction of the Director of the Medical Division which was the former position of the Secretary and has not provided a complete record of the correspondence via the U S Consulate from 1998 thru 2012 regarding attempts to get a C&P exam for pending claims and appeals.

The Appellee’s attorney may stipulate that efforts to obtain a qualified English Speaking Neuropsychological Assessment were impossible and that therefore all claims and appeals between 1998 and the present.

The RBA seems to be sufficient except for the missing response to the VAOIG by Denver VARO acknowledging the failure to give the requested hearing in the appeal of the 1/22/1992 Decision.  I have a copy of the memo (which is not in the RBA) that seems to have been used to prepare the letter I saw in my file on my last review of it in Washington, DC, sent to me by the Communications Section in the Central Office detailing the dates of my letters, dates I would be unavailable, dates of the AOs letters in the period of unavailability and dates of hearings set in the period of unavailability on those same letters.

I request the Appellee’s attorney fulfill all previously requested FOIA letters, from January 1, 1990 through the present, as required by 38 CFR 3.159, that were responded to with non-denial denials from the Medical Division or stipulate to the Appellant’s belief of what is on those documents, and radiographic films, which had incomplete reports not rejected by AOs, as required by 38 CFR 3.159 and 4.2, for failure of completeness and failure to provide etiology opinion statements, and EEG tracings which would show, if given to a second opinion professional requesting a complete report including an etiology statement form the medical history included in the Appellant’s medical file. 

By 1990 these items were produced digitally except for the hard copy OPTRs & IPTRs and should be archived somewhere for research access.  The films, that were shown to me, would have been retired after 5 years but replaceable from the digital data.  The hard copy EEG tracings are probably similarly disposed of on the Telemetry Units, but the digital video and tracings should be reproducible from archives. 

The several “abnormal” EEGs and 9/16/1990 IPTR should be sufficient to provide the Appellee’s attorney grounds for stipulations as to the similarity of what could or would be produced given the West LA VARMC was using the telemetry units for a “cutting edge” theory research that led to over a decade of wrong information regarding temporal lobe seizures being diagnosed by VA physicians as pseudo and psychogenic seizures and being passed as “clinically approved,” affecting all Americans with this particular problem.

The Appellee’s attorney can, keeping in mind my TBI residuals, rely upon my residual 126 verbal IQ and 13 plus years as a Naval Hospital Corpsman independent duty qualified and having been shown the Radiographic films by the attending physicians, being present when the EEG technician left my side to get a physician for a stat reading of an EEG by the attending physician, or being present when the ultra sound technician left my side to obtain a stat viewing by the attending physician and having noted them in writing over several years in requesting the copies of the films on the refusal of the medical division to do complete reports including etiology assessments as required by 38 CFR 3.159 and 4.2.

I will raise no objection to an Appellee’s request for an extension to 30 days of the time to respond to this request to correct the RBA.

At the same time, I request the opportunity to make further requests to correct this very lengthy and complex RBA  in the interest of getting it right the first time and not having to carry this action out further.

 

 

Lemuel C Bray In Pro Se 2833 Main Street Torrington, WY 82240-1929 lembray@gmail.com Ph     307 316 8568 FAX 307 316 0936

 

[Gastone]

Why no VA Attorney representation at BVA or CAVC? What's this Appeal worth, Retro Wise?

[broncovet]

I think this is a brilliant idea, way, way underutilized, and it exposed a "hole" in the due process because the Veteran is not given an opportunity to view the RBA, until "after" the Board decision.  Its a problem I see over and over again:  What evidence do they have, and why are they missing xx documents?  

This procedure, where the VA does not give the Vet a copy of the RBA until its too late, means the Veteran can not reopen under 38 CFR 3.156 (b) pending claim as the appeal period is often over by the time a copy of the RBA is delivered to the Veteran AFTER the Board decision.  

Im very interested in seeing as to how you do with this.  Great job.

[broncovet]

What some  Vets dont understand, except for this, the "record" is "sealed" after the BVA but before any CAVC appeals.  This is an injustive to Vets.  Its done this way, mostly because the CAVC does not review the "factual" determinations of the board, as a rule, but does review the legal standards, and things like whether or not the Board gave an adequate reasons and bases.  

The Veteran must meet the "cue" standard of review in order to overturn a "factual" determination made by the board, that is, he loses the benefit of the doubt.  This is wrong, in my opinion, also.  

[broncovet]

While I do agree with Gastone, you can fairly easily and cheaply hire an attorney shortly after a BVA decision, Im unaware of attorneys going where you have gone:  Challenging the RBA.  

If you have documentation that these records are missing, then that surely accelerate to the Cue standard of review, except for the issue of whether or not this evidence is "outcome determinative".  

In other words, the VA can argue..oh, yea those records are missing but they had no bearing on the outcome.  (not outcome determinative).  

Instead, by using rule 10 (b), as you did, you dont have to show the missing records are outcome determinative or otherwise meet the cue standard of review.  I think the judge should remand the case for consideration of the evidence you cited.  

 

[Lemuel]

5 hours ago, Gastone said:

Why no VA Attorney representation at BVA or CAVC? What's this Appeal worth, Retro Wise?

You hit the problem.  The issue on appeal is the revision of the date of tinnitus, a 10% issue, garnering approximately $36,000.00.  Plus there are many negative decisions against "Johnny come lately" claims which have on evidence in the military health record of tinnitus.  Not sure the CAVC will respond to any of the requested record changes that are not relevant to the tinnitus revision date on appeal.

I've also offered to connect the remand and representation to facilitate it (which would come out of my pocket) to the case but still none of the attorneys who sent me solicitations want it.  The remand should be worth about $500,000.00.  TDIU back to my first claim date and eliminating extra charity pay for a part time job, that even became too much for me at the time, as indicated by my employer of the time for a business manager of a well known Hollywood Actor with his consent.

In my case, the first evidence of a hearing problem in the Navy Health Record is 9 years before my final discharge.  I failed a fork lift operation test because of the tinnitus interfering with my hearing.  I was sent to sick call with a recommendation for an EENT consult for tinnitus which was done and is the first basis for my hearing loss.

The problem is that it predates my TBI so difficult to get even the 10% per the rating schedule.  The "liberalization" for the quoted 38 CFR 3.114 (a) in the decision that first granted my 10% is not listed and I haven't been able to find it.  I see no change in the rating schedule between 1974 and my 1989 general claim, that didn't mention tinnitus and was not specific other that stating former rating evaluations of my service connected conditions generally submitted by my VSO Rep.  Even the initial granting of the 10% may be suspect without that "liberalization" directive and its date.  The date may be only a short time before the date of the grant.  But it is the operable date according to 3.114 (a) which means my TBI rating can be taken back to the operable date of the liberalization also.  About 18 months earlier than my claim date.

As you can see in my motion, I referenced items in the RBA that refer specifically to the missing items.  Where I've been unable to find specific references I referred to secondary references and copies I have from the VARO's hard copy sent to me that is even larger than the RBA.  A total of approximately 24 reams of copy paper, mostly double sided but with a lot of duplicate copies.  (a stack of paper over six feet high if stacked in a single stack from the boxes I received it in.)

[Lemuel]

4 hours ago, broncovet said:

I think this is a brilliant idea, way, way underutilized, and it exposed a "hole" in the due process because the Veteran is not given an opportunity to view the RBA, until "after" the Board decision.  Its a problem I see over and over again:  What evidence do they have, and why are they missing xx documents?  

This procedure, where the VA does not give the Vet a copy of the RBA until its too late, means the Veteran can not reopen under 38 CFR 3.156 (b) pending claim as the appeal period is often over by the time a copy of the RBA is delivered to the Veteran AFTER the Board decision.  

Im very interested in seeing as to how you do with this.  Great job.

Didn't mean to copy your whole post.  Just the last sentence.  I'll repost here what ever I get. 

I'm still going over the items to make sure I list everything referenced in the RBA that has anything to do with the claim or the remand in the BVA decision as well as the NOA issue at this time.  Because of the remand and my request to delay the appeal on the rejected issue by the BVA judge, I noted that I would not object to a request to have an extension of the 7 day response required by Rule 10(b).

Anyone interested in seeing a redacted copy of the BVA decision? 

I had an excellent Judge and learned a lot from her 37 page decision. 

Also going back over the hearing she presided over which is even longer.  It points out my limitations of thinking on my feet and being responsive to the questions.  I come off worse than Sessions in today's hearings.

Edited November 15, 2017 by Lemuel