Tort Claim in U S District Court

[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

Edited March 22, 2018 by Lemuel
add updated filings

[Buck52]

 This is off topic about a Tort Claims.

I know a lot of us  Older Vietnam Vets  have had injuries that were not reported  we just sux it up and went on...example  I was on the bumper of a Duce & Half  Truck  check the radiator fluids and when I turn the cap the pressure was so pressured up it blew the radiator cap off just as I bent down to remove it   the hot scalding fluids got me on the forehead  causes burns and skin falling off,  as I Reacted to this my first thought was jump off the truck I did and when I did my boots caught on one of the hooks on the bumper  and caused me to fall with my knees hitting first on to concrete...that hurt more than the burn.

  anyway I never reported that and never got treated for it or either of these injuries.

I just sux it up like my buddys did...I clean the burn and put some type of ointment on it  not much I could do for the bang up knees...

Well I have Arthritis in both knees now about 10 years after getting out.....and in my opinion that would be service connected   had I reported it.

 I ask a VA Doc about that and she said yes it could have caused your arthritis in your knees but she would not put that down. (she was for the VA of course) I did tell my C.O. and some buddies at the time they ask me what happen to my face? I told them what happen  and that was that... but none of us ever ever thought about what injuries can cause years on down the road  I never thought about a claim back then..we were just happy that we can home alive.

C.O. just had me keep it clean and not walk a lot  I was in transportation at this time and just drove a truck.  Unfortunately my C.O. Never made it back home alive. and my buddies I just never got the real names or addresses  we used Nic Names  I was Called OKIE  I was from Oklahoma.

   So without a Dr help if it was not reported your basically out of luck getting Direct Service Connection or a claim that would stand  on just your lay statement.

[Lemuel]

Buck, it is kind of late to do it but some units reconnected through Classmates.com.  I checked with my units, especially the LARC Unit at Dong Ha.  There were some injuries that I didn't fill out paperwork on because I didn't have their health records and didn't have the field tags.  Most were sent to the Marine Medical Unit at Dong Ha but there were a couple of head injuries that I gave Darvon compound to and weren't reported.  I wanted to try to fix that by connecting up with the unit but none of the people I worked with signed up to the unit.  The ones that did were before or after me.

It is a long shot but may be worth the effort.

Also you can look up through the command record and mail letters via the VA to the individuals who were assigned with you.  I tried that route with a witness to an MVA I had in 1971 but either the VA didn't have a record of him, didn't forward or he didn't respond.  But in his case I had the police report with his name as a witness.

Edited February 22, 2018 by Lemuel
add additional thoughts

[Buck52]

Roger that Lemuel

Thanks for that information.

Tried that everything came up empty/ so I just never filed claims on these.

I don't much care anymore about these injuries  VAMC treat's me for the Arthritis.

I have other S.C. Conditions  100% P&T Plus a couple of SMC's all incurred in RVN.

I love to see other Veterans get their Benefits.

 

[Lemuel]

3 hours ago, Buck52 said:

I have other S.C. Conditions  100% P&T Plus a couple of SMC's all incurred in RVN.

I love to see other Veterans get their Benefits.

 

Actually pretty much the same for me, Bronco. 

I'm doing the Tort Case to try to get other veterans with mild to moderate organic brain syndromes, especially cerebral malaria victims from Vietnam service connected and compensated.  I saw so many of them in PTSD groups that I attended.  I was diagnosed in a PTSD exam with my TBI only because the psychiatrist doing the examination followed up on some subtle neurological signs that accompany a focal TBI.  I wouldn't be doing it if it was just for me but at the same time I have to recognize that I have a good case and that it is the best route to achieving that goal of "seeing other Veterans get their Benefits."

One of the reasons I'm in Wyoming with the case is because it is easier to join class action classes after filing the initial civil complaint by local rules.  Even the Judge can decide on her own (her in this case) without a motion to convert the case to class action.

This is my 4th attempt, Berta.  I've learned a lot along the way but not enough.  I'd still prefer to have an attorney and am continuing the search.  I think if I can get the court to take the case to trial I'll be able to get an attorney when we move to discovery.  So my response to the MOTION TO DISMISS is the most important filing I'll make.  I'll greatly appreciate anyone's input as I move forward.  Presently I'm listing the facts as I see them in an introduction.  I'll follow that with a point by point rebuttal of the U S Attorney's Motion to Dismiss.  Once I get into the Rebuttal Argument I'll post regular updates.  My goal is to file it by March 1 although I have a few more days if I need them and can ask for an extension of the 21 days for complexity.

I wouldn't be able to continue if I hadn't gotten proper treatment in 2016 which makes me wonder if the treatment with Tegretol in 1990 wasn't to purposefully make my seizures worse and make me less functional because of my previous 3 years of activism.  I was a thorn in the side of the ongoing seizure research at West LA VA Medical & Research Center because they were using VA telemetry units for civilians and denying use by veterans for the purpose they exist unless they met their research criteria.  When I finally was given telemetry it was a short version, not in protocol, and of the 5 available beds 3 were occupied by non veterans.  The remaining other bed was occupied by a veteran with Parkinson's.

The cerebral malaria victims had the same complaints I have.  There were also some undiagnosed TBI victims in the PTSD Groups.  It occurred to me that most PTSD and "adjustment disorder" diagnosis were very probably actually organic.  Most from service connected conditions but some from injuries post service.

There were a couple of 100% TBI victims who also attended the PTSD group in the Downtown LA VA Clinic.  There situations were obvious with both coordination and mental problems.  But it was only the very severe that were taken care of.  The subtle but debilitating mild to moderately severe cases were "adjustment disorders", not compensable, or PTSD often not meeting one minor criteria in their C&P examination and denied compensation.

So, I am investing my back pay for 8 years into the above effort in my continuing activist pursuits to achieve that goal.  I started with a Pro Se filing in the District Court for the Central District of California in 1988 that failed because I was not sufficiently versed in law and the max you could pay and attorney for a VA connected suit at that time was $25.00. 

Then I went to DC to do demonstrations on the Mall's "Grassy Knoll"  overlooking the Vietnam Memorial in 1995.  I returned frequently through 2003 picketing the Central Office.  During that period I was interviewed by a couple of aspiring journalists and like to think it was one of them or a High School Senior that picked up my handouts and put two and two together getting the 2008 mild to moderately severe TBI legislation.  Unlike Vietnam, the veterans of current wars do not have the numbers diluted by 10 to 1 logistic personnel to combat ribbon veterans so the TBI victims stood out more in that group from 9/11/2001 to the date of that 2008 article.  Logistics were done by contract personnel working for corporations such as Haliburton and Black Water.

But the cerebral malaria victims are still left out.  The one I was trying to specifically help because of his grand mall seizures eventually got 100% PTSD.  I'm sure that was to get me to drop my activism on the subject.  And PTSD eventually usually goes into remission so it leave the VA an out of the compensation.