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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Can't get "Answer Question" to come up on this post so will edit to add at the end.

Editing to thank Berta for her Post.  today is March 21, 2018.  Still waiting for the response from the Judge to my rebuttal brief to the motion to dismiss by the U S Attorney.  Attaching my objection and brief filed March 6, 2018.

I'm attaching my Pro Se Complaint filed in U S District Court on December 15, 2017.

Also the U S Attorney's motion to dismiss.

I would like to hear any suggestions of U S Code and CFR articles that should be challenged under Sec (4)(d) of the 14th Amendment which was ratified on July 9, 1968.  "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."

For one, I would like to challenge the payment of back payments in rates that have been raised via COLA increases.  My challenge is the Amendment was ratified under the gold standard.  While there were variances across the land in how much gold it took to buy a good horse, the price of a good horse did not vary the way inflation affects the price today.  The dollar we receive in past benefits should buy the same basket of groceries it would buy at the time the debt by the government to us is recognized.

We need to challenge the Feres doctrine again now that the Sec (4)(d) is recognized in the Appeals Court process.  From 1968 until the Court of Appeals for Veterans Claims was established Sec (4)(d) was essentially written out of the 14th Amendment by refusal to hear or by decisions such as the 1955 Feres decision.  There were no cases in annotated texts of Appeals decisions under Sec (4)(d) when I first attempted to address the problem of the minimization of organic brain syndromes including damage by mild to moderately severe TBI, diseases, and other exposures such as oxygen supply interruption.
 

I'm also requesting assistance in researching case law to counter the U S Attorney's response.  I will be doing research via Fastcase.com and will post for any of the problems listed by others with their claims that I have read that I happen on to.

I also have a pending Appeal to the CAVC which I will update on this thread.  Presently the VA has made 5 form letter responses to the CAVC saying my dispute with the RBA remains open.  No detail required by the Clerk's Order has been provided regarding the attempt to resolve the dispute.  I have received no personal contact from the two attorneys assigned to handle the case.  One for the case and the other for the disputed RBA.

Can't get "Answer Question" to come up on this post so will edit to add.

To Challenge under 14th Sec (4)(d):

1:  Limitations of effective dates to other than evidence of onset of disability and evidence of increase.  (look up U.S.C 38 AND 38 CFR)

2:  "Closure of Claims" by VA without consent of Veteran.  (look up U.S.C 38 AND 38 CFR)

20171215 Court complaint.pdf

20171215 Court complaint tolling.pdf

20180103 POS Rebuttal CM-EF Reg.pdf

20180103 Rebuttal obj eq tolling.pdf

20180109 DCDW denial Motion Eq Toll.pdf

20180213 U S Motion to dismiss.pdf

20180306 Objection to Dismiss.pdf

20180306 Objection to Dismiss Brief.pdf

Edited by Lemuel
correct spelling, additions because "Answer Question" box not appearing

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I never did figure out how VA loans charge one Veteran interest to borrow money on a home, but somehow the VA gets away without paying us interest when the delays (sometimes for decades)  are through no fault of our own.  

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I commend your effort, but before you go for anything related to the gold standard, best to check how uncle sucker rates gold as of today. Gold holds it own as it comes to inflation, always has and always will unless you are the gooberment.  The CPI was changed under Clinton to skewer and screw those that depended on it, and it ain't gonna change.

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https://www.leagle.com/decision/infdco20130117f04

One of our new members mentioned this case and I thought it would be a good example of how involved many FTCA issues can become, to put into this forum.

The veteran filed in a Federal District  Court after one of two things happened- either his FTCA was denied by OGC or he refused their offer of settlement.(probably the latter reason)

He was awarded quite a tidy sum of cash by the Fed District Court. 

One reason he succeeded in what- at first glance would be a very difficult case to win, is with the Timeline he provided of how VA had been negligent with primarily their administration of  improper medications that resulted in negligently treating his PTSD.He also had a superb expert opinion.

"We award the plaintiffs the following damages:

Stanley P. Laskowski, III's Past Lost Earnings and Lost Earning Capacity: $214,582.00

Stanley P. Laskowski, III's Future Loss of Earnings and Lost Earning Capacity: $2,144,803.00

Stanley P. Laskowski, III's Past Non-Economic Damages in a lump sum, including pain and suffering, embarrassment and humiliation and loss of the ability to enjoy the pleasures of life: $500,000.00

Stanley P. Laskowski, III's Future Non-Economic Damages in a lump sum, including pain and suffering, embarrassment and humiliation and loss of the ability to enjoy the pleasures of life: $700,000.00

Marisol Laskowski's past, present and future loss of her husband's services to her and the past, present, and future loss of companionship of her husband, including her spouse's company, society, cooperation, affection, aid in the marital relationship, support, comfort, assistance, association, and the loss of ability to engage in sexual relations: $140,615.00"

Anyone considering  pursuing a FTCA matter in a Federal Circuit Court should study this case carefully.

The court notes that there was a "preponderance" of evidence.... meaning these cases -whether settled at the VA General Counsel level or filed after  a OGC denial or refusal of a settlement by the plaintiff, have to go  much further , with evidence, than a traditional award of any other VA claim -that is based on Benefit of Doubt.....

to raise to the level of a Preponderance of Evidence against the VA. 

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    • By JusticeforLt.Col.Sutton.
      On March 12, 2018 my husband was admitted to the Veteran Affairs Medical Center of Memphis, Tennessee for a prescheduled three-day admission. Subsequently, he tragically died on March 22, 2018 at 10:14am due a mind-boggling amount errors and failures of the providers of VAMC of Memphis.  I am alleging that the VAMC of Memphis, Tennessee and the medical providers failed in their duty of care to my husband by their:  failure to monitor and administer Vancomycin properly and  safely, failed to recognize and correct Vancomycin toxicity which lead to Acute Renal Failure, failure to recognize and treat the Acute Renal Failure leading to fluid overload, failure to treat new onset Congestive Heart Failure caused by fluid overload , then failure to assess or render treatment respiratory distress.   In addition, failure to have the proper equipment available to provide airway management, inappropriate administration of anesthesia by resident(far out of scope of practice), failure to  intubate in a timely manner causing hypoxia leading to cardiac arrest.  As well as, failure to follow the Advanced Cardiovascular Life Support (ACLS) guidelines for Cardiopulmonary Resuscitation on my husband.
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    • By Lemuel
      Reposting because I can't make additional comments on original post.  Hope this one is different.
      I'm attaching my Pro Se Complaint filed in U S District Court on December 15, 2017.
      Also the U S Attorney's motion to dismiss.
      I would like to hear any suggestions of U S Code and CFR articles that should be challenged under Sec (4)(d) of the 14th Amendment which was ratified on July 9, 1968.  "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
      For one, I would like to challenge the payment of back payments in rates that have been raised via COLA increases.  My challenge is the Amendment was ratified under the gold standard.  While there were variances across the land in how much gold it took to buy a good horse, the price of a good horse did not vary the way inflation affects the price today.  The dollar we receive in past benefits should buy the same basket of groceries it would buy at the time the debt by the government to us is recognized.
      We need to challenge the Feres doctrine again now that the Sec (4)(d) is recognized in the Appeals Court process.  From 1968 until the Court of Appeals for Veterans Claims was established Sec (4)(d) was essentially written out of the 14th Amendment by refusal to hear or by decisions such as the 1955 Feres decision.  There were no cases in annotated texts of Appeals decisions under Sec (4)(d) when I first attempted to address the problem of the minimization of organic brain syndromes including damage by mild to moderately severe TBI, diseases, and other exposures such as oxygen supply interruption.
       
      I'm also requesting assistance in researching case law to counter the U S Attorney's response.  I will be doing research via Fastcase.com and will post for any of the problems listed by others with their claims that I have read that I happen on to.
      I also have a pending Appeal to the CAVC which I will update on this thread.  Presently the VA has made 5 form letter responses to the CAVC saying my dispute with the RBA remains open.  No detail required by the Clerk's Order has been provided regarding the attempt to resolve the dispute.  I have received no personal contact from the two attorneys assigned to handle the case.  One for the case and the other for the disputed RBA.
      Can't get "Answer Question" to come up on this post so will edit to add.
      To Challenge under 14th Sec (4)(d):
      1:  Limitations of effective dates to other than evidence of onset of disability and evidence of increase.  (look up U.S.C 38 AND 38 CFR)
      2:  "Closure of Claims" by VA without consent of Veteran.  (look up U.S.C 38 AND 38 CFR)
      20171215 Court complaint.pdf
      20171215 Court complaint tolling.pdf
      20180103 POS Rebuttal CM-EF Reg.pdf
      20180103 Rebuttal obj eq tolling.pdf
      20180109 DCDW denial Motion Eq Toll.pdf
      20180213 U S Motion to dismiss.pdf
      20180306 Objection to Dismiss.pdf
      20180306 Objection to Dismiss Brief.pdf
    • By Flyby
      Is this FTCA worthy?   Thought I was posting in the correct Forum with my original post...know this is in Berta's wheelhouse: I am receiving 100% TDIU (90% SC w/remaining based on IU) since 2014. Saw an APRN from 2010-2016. In that time they (APRN/MD) prescribed Lorazepam at first 2mgs (1mg twice a day). Had already fought VA solo for a decade in getting the diagnosis for SC PTSD and GERD back-dated and had tried a laundry list of prescribed meds but had had no luck. I was asking the APRN repeatedly about dependence on the Lorazepam, side-effects, etc...all documented. Was even told in a C&P by a PhD that the drug is "not addictive." I was told repeatedly the importance of "medication compliance" by the APRN.
      Despite my life spiraling, all documented, the APRN kept prescribing. I even asked the dosage to be reduced. I never had a face-to-face with the MD as required by APRN/MD protocol in all that time. I had gained thirty pounds, was drinking heavily, was forced to sell a self-started business due to IU, and deaths of significant others, etc...all things that should have likely prompted a sit-down with the prescribing MD. 
      Fastforward to just-prior-to Christmas 2016 I received a letter stating I was being reassigned to a new MD. Within seconds of our meeting the MD had already stated he had not read my chart and then proceeds to just berate me stating "I was an addict...look at you." I sit forward in a chair to hear. He would have known that if he would have simply read my chart. I held my tongue and just let him spew. He then states if I continue taking the drug I will "end up in a nursing home." In the same sentence, while essentially yelling at me, he says if you stop taking it you will "drop dead from a seizure." To say I was stunned would be an understatement. I said nothing.
      I had been told for the past six years that this medication was a "wonderdrug" for me and I was told by the APRN to remain "compliant" in taking the med. I am not an addict by the way. I was someone that had taken a drug EXACTLY as prescribed for over six years while being assured and reassured by an APRN that it was nothing but beneficial for me. All documented. I was never told this drug was life-threatening. Again, I never abused Lorazepam only taking it as prescribed.
      I had heard enough from this MD, also the Chief-of-Staff of the clinic; I asked him "if this medication is so dangerous then why have I been prescribed it for so long?" His response still resonates with me. I think at that moment he realized HE was the doctor signing-off on the APRN requests for that length of time...but he didn't stop talking. I knew that he was the MD before we ever met that day. His name was on every bottle filled. He admitted he "likely was the doctor signing-off" and "he had so many patients he just signed-off on the APRN requests." What?! His facial expression was priceless when the reality of what he was telling me hit him; he immediately began to throw the NP/APRN under the bus saying "she had a history of over-prescribing." He was incredibly rude, brazen, and unapologetic in his admisson. He even put in my progress notes from that day that my taking a half of a half of a 1mg Lorazepam as needed was my "attempt to ween myself." This was untrue at the time and I feel was a vain attempt to cover himself somehow.
      I reported everything that was said to the patient advocate...her response..."you caught him." I have since discontinued the med not without horrible withdrawls and am now having uncontrollable muscle movements with my right hand curling inward with fingers locking rigidly, memory loss and gait/balance issues. I am obviously "unemployable" as well. The MDs attempt to taper me from the medication was questionable as well...he told me to "only take it if I need it" instead of a proper taper. The patient advocate and her supervisor have mentioned the Form 95 and my Rights. 
      During the time I was on the medication I was in Chapter 31/35 Voc Rehab. I experienced just about every form of employment discrimination there is as a first-year teacher.That's a nightmare by itself. Just to put this out there...EEOC is a joke. I disclosed my hearing impairment prior to being hired on a pre-employment checklist, which is an illegal inquiry by the way. When I had a simple disagreement with an Assistant Principal about a collateral duty he placed me outside from Nov-Feb next to a running industrial-sized generator. When I requested to be moved I was ignored. EEOC opined not only was this normal but even allowed the opposing attorney to claim I had "never disclosed nor was disabled" despite having written proof. EEOC even allowed the opposing and one of its own directors to question my military service. I was forced to resign. I hope that hits home for folks on this forum. If EEOC can scoff at my military service and a VA SC disability then what does that say about their REAL view of ADA/ADAAA, veterans, and SC disabilities? I can't get a teaching interview due to retaliation from my former employer; EEOC is aware but refuses to even open mail from me. Again, EEOC apparently does not care about some veterans. I filed in Federal Court pro se when no attorney had the brass to represent me. 
      Instead of VA Voc Rehab advocating for me, which they are required to do by statute, and helping me keep my job for a very specific disability disclosure prior to being hired as a teacher, they (VA) simply deemed me "unemployable." All the while they were prescribing a med that was obviously making my SC disability much worse--obviously hindsight helps here. The two MDs I have seen since 2016 both agree that not only was the dosage excessive, too prolonged, but most importantly that given my pre-existing SC of PTSD the expectation of very specific outcomes should have been expected. See Laskowski v US (Dondershine opinion).
      According to my own research since the FDA has no clinical studies past several months for Lorazepam much less six plus years...further FDA states very clearly that in certain patients, PTSD symptoms could/will be compounded.
      I have spoken with several attorneys that claim to handle FTCA cases. So far the majority only are interested in "catastrophic injury" cases. Considering I am faced with possible lifelong issues related to this med and a complete lack of accountability between APRN/MD is this FTCA material? I have read the Laskowski v US case which seems similar despite me not being a criminal. I do have a face-to-face appointment with an attorney in about a week. Please advise.
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    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 6 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
        • Like
    • Precedent Setting CAVC cases cited in the M21-1
      A couple months back before I received my decision I started preparing for the appeal I knew I would be filing.  That is how little faith I had in the VA caring about we the veteran. 

      One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing.  I could not understand for the life of me why so many obviously bad decisions were being handed down.  I think the bottom line is that the wrong type of people are hired as raters.  I think raters should have some kind of legal background.  They do not need to be lawyers but I think paralegals would be a good idea.

      There have been more than 3500 precedent setting decisions from the CAVC since 1989.  Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans.

      The document I created has about 200 or so decisions cited in the M21-1.   Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims.  Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why.  Most of these decision are not cited by the M21.

      It is important that we do our due diligence to make sure we do not get screwed.  I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve

      M21-1 Precedent setting decisions .docx
      • 5 replies
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