Whistle Blower Retaliation

[Lemuel]

Has anyone experienced the kind of treatment I have and finally come to the conclusion it is in retaliation for  something you did?

This is my post from another site.  A Veteran's blog, who is an attorney in response to an article on Whistle Blower retaliation:

Lem

Patient whistle blowers are also punished. I’ve come to realize going through my file that because of my activism on veterans with organic brain syndromes that began in 1987 I was immediately put on some black list or so it appears from my adjudication file. Refusal of evidence. Non-denial denials by providing something in response to FOIA requests but not what was ask for. A CUE of stating that a hospitalization from Aug 12 to Jan 15 was less than 21 days, and therefore not eligible for hospitalization compensation. Removal of documentation of disability from my C&P file. Currently, a 150 day delay in correcting the RBA by obtaining evidence referenced in documents not removed. But at least the CAVC Clerk was responsive to my complaint:

Not published
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2990
LEMUEL C. BRAY, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.

O R D E R
On November 7, 2017, the Secretary transmitted the Record Before the Agency (RBA) to the appellant and filed notice of service with the Court. On November 18, 2017, the appellant filed a motion that the Court will accept as a motion disputing the RBA. On December 1, 2017, the Court ordered the Secretary to advise the Court, within 15 days after the date of the order, and every 15 days thereafter, which action the Department – including the responsible VA regional offices – have taken to resolve the dispute. For more than 6 months the Secretary has filed responses to the Court either asserting they are continuing to review and determine if any documents are missing from the RBA or that they are attempting to locate documents identified by appellant as missing from the RBA. On June 13, 2018, the appellant filed a response asserting, in pertinent part, that the RBA dispute process has taken a long time and the Secretary has not
provided any details of the status of the dispute. The Court agrees with the appellant and will ask the Secretary to provide a detailed status update. It is ORDERED that the Court’s December 1, 2017, order is hereby revoked. It is further ORDERED that, within 20 days after the date of this order, the Secretary provide a detailed response as to the items listed in the appellant’s RBA dispute filed on November 18, 2017.

Proceedings in this appeal are stayed pending further order of the Court.

DATED: July 17, 2018
FOR THE COURT:
GREGORY O. BLOCK
Clerk of the Court
By: /s/ Cynthia M. Brandon-Arnold
Cynthia M. Brandon-Arnold
Chief Staff Attorney/Deputy Clerk
2
Copies to:
Lemuel C. Bray
VA General Counsel (027) brw

 

 

Lem July 20, 2018 at 7:36 am

I’ve filed an appeal in the 10th Circuit for DCWD Case 17-CV-206-F which is a medical malpractice suit for treating my confirmed atypical absence seizures and atonic seizures with Tegretol which is listed in the 1990 PDR (Physicians Desk Reference, the go to book for Doctors on medications) as making such seizures worse. 5 months of complaining that the drug was making me worse and finally having to wean off and quit therapy whereupon my seizure diagnosis was changed to pseudo seizures. I was never compensated for my confirmed seizure disorder.

I started receiving successful treatment for my seizure disorder in August of 2016 with Keppra after 30 years of being unemployable.  28 years after the mistreatment with Tegretol.

The black list even reaches to attorneys. Even Ben’s office won’t take my case for fear of retaliation.

1)     From:  Boggs v. Peake, 520 F.3d 1330 (Fed. Cir., 2008) ”38 USC §7292. Review by United States Court of Appeals for the Federal Circuit:”

“…(d)(1) The Court of Appeals for the Federal Circuit shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. The court shall hold unlawful and set aside any regulation or any interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the Court of Appeals for Veterans Claims that the Court of Appeals for the Federal Circuit finds to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 

(B) contrary to constitutional right, power, privilege, or immunity; 

(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or 

(D) without observance of procedure required by law.”

“…There are only two statutorily created exceptions to the rule of finality for veterans claims in §7104(b). Cook v. Principi 318 F.3d 1334, 1337 (Fed.Cir.2002) (en banc). First, under 38 U.S.C. § 5108, "f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See also 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.1996) ("[T]he Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."). Second, a final decision "is subject to revision on the grounds of clear and unmistakable error." Cook, 318 F.3d at 1337 (quoting 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board)).” 

My amended (to date) Petition to Appeal VA adjudication decisions and refusal to certify CUEs because of a one year time limit are attached.  (20180305... is the letter denying certification of CUE and wrongful closing of an appeal)  Do you think I have a chance?

 

 

20180720 Amend Peti for CAVA & VA review.doc

CAFC Jurisdiiction Boggs v. Peake,.pdf

20171120 NOD Rating Dec 11-1 signed_Redacted.pdf

20180305 VA letter re issues_Redacted.pdf

Edited July 20, 2018 by Lemuel
left out important part

[Berta]

"My amended (to date) Petition to Appeal VA adjudication decisions and refusal to certify CUEs because of a one year time limit are attached.  (20180305... is the letter denying certification of CUE and wrongful closing of an appeal)  Do you think I have a chance?

It seems you have a TDIU claim pending- but I see you now have 100%-

The downloads I read are clear as to this-it seems a NOD was not filed within  one year of the receipt of some very old decisions. I agree with the 20180305 letter from VA.

CUE claims have no time limit-I was told by some dumb vet rep I had ,not to file a NOD on a 1151 DIC- because 1151 claims are "different" than regular claims.

He was wrong. Because I didnt file a NOD, I had to file instead 4 CUEs with one more to go-

They were all awarded-the most recent CUE award on the 1998 decision was in 2015.

Failure in Duty to Assist is NOT a CUE.

The legal error (s)  must be clearly defined and the established medical record at time of the alleged CUE must reveal the error(s) were detrimental to you.

Everything I know about CUE is in our CUE forum here-I have filed many-some taking years and some taking mere weeks to resolve-I never had a CUE at the BVA because I won them all at the RO level.

I have read so many BVA decisions on CUE since they came on line- that 

I learned everything I know from their awards and their denials of CUE.

Much of that info is here in the CUE forum-

All I can suggest is that you read over the CUE regulations very carefully.

You might have to file them again.I see someone represented you , per the recent VA letter_

"We sent a copy of this letter to your representative, VANESSA G. ELLERMANN, whom you can also contact if you have questions or need assistance. "

Perhaps Ms. Ellermann would agree.
 

 

 

 

Edited July 20, 2018 by Berta
added more

[Berta]

Forgot to add--- I felt the VARO was retaliating against me when I filed my 1151 claim, and certainly when I re opened my DIC claim.It was quite obvious per the SOC and SSOC .

I feel that the VARO director was trying to do all she could to manipulate me, by phone , 2 years ago, to accept the fact that- UNLIKE ALL OTHER VA DECISIONS , at BVA and at CAVC, she was trying to insist that my husband had a 100% P & T disability at death (under 1151) that was Total but Not permanent-whe he died ( I have evidence from VA as well as SSA ,NYS DHE,and Voc Rehab etc etc that he was 100% P & T due to the stroke VA caused and VA had provided no miraculous cure to make it Not permanent.Besides it was part of my 1151 award, contributing to his wrongful death.(FTCA)

But their retaliation only caused me to calm down and fight back.

I consider myself a BIG critic of the VBA and am waiting for an answer to the last complaint I filed with the WH Hot line.  It has nothing to do with me at all....it regards many veterans or their survivors....

But trying to prove retaliation in my opinion -is a waste of time-instead it is far better to get more money out of them legally, via valid claims and/or valid CUEs.

 

[Lemuel]

1 hour ago, Berta said:

"My amended (to date) Petition to Appeal VA adjudication decisions and refusal to certify CUEs because of a one year time limit are attached.  (20180305... is the letter denying certification of CUE and wrongful closing of an appeal)  Do you think I have a chance?

It seems you have a TDIU claim pending- but I see you now have 100%- 

The outstanding is from a claim for TDIU from 1987 to 2009 when it was granted.

The downloads I read are clear as to this-it seems a NOD was not filed within  one year of the receipt of some very old decisions. I agree with the 20180305 letter from VA. 

The Claim for which the NOD of the RO decision was for multiple CUE and failure to assist.  (the BVA Judge noted in her decision that I had not claimed a failure to assist so I claimed it in the duty of the Secretary to get evidence from the VA.)  All of the issues were claimed as CUE and as before CUE was not acknowledged.  Except in the case of those being denied because of timeliness.  As you state, Bertha, CUE has no SOL.  So the multiple CUE were claimed as a starter and again on the place indicated on the new NOD form.  

CUE claims have no time limit-I was told by some dumb vet rep I had ,not to file a NOD on a 1151 DIC- because 1151 claims are "different" than regular claims.

He was wrong. Because I didnt file a NOD, I had to file instead 4 CUEs with one more to go-

They were all awarded-the most recent CUE award on the 1998 decision was in 2015.

Failure in Duty to Assist is NOT a CUE.   But it should keep a claim open when the failure is to obtain evidence from the government.  When it is from a private source it appears we are ultimately responsible to see that the VA receives the documentation.

The legal error (s)  must be clearly defined and the established medical record at time of the alleged CUE must reveal the error(s) were detrimental to you.    That fits as noted below.

Everything I know about CUE is in our CUE forum here-I have filed many-some taking years and some taking mere weeks to resolve-I never had a CUE at the BVA because I won them all at the RO level.

All I can suggest is that you read over the CUE regulations very carefully.  I think with the filing of the petitions to appeal I will get responsive action from the VA GC and the RO decision corrected.

You might have to file them again.I see someone represented you , per the recent VA letter_  Ms. Ellermann dropped me as a client.

"We sent a copy of this letter to your representative, VANESSA G. ELLERMANN, whom you can also contact if you have questions or need assistance. "

Perhaps Ms. Ellermann would agree. 

That also may be the reason Ms. Ellermann dropped me as a client.  That or she was warned if she didn't the GC could make life difficult for her in any future clients.

Ms. Ellermann has withdrawn from representing me.  I don't know if it was to take the quick $30,000.00 for the slam dunk TDIU back to July of 2009 or because she was "warned off."

Where do I find the CUE regulations?  I believe ignoring evidence is a CUE if it clearly provides evidence of a higher rating or service connection.  For example, in my record there is the denial of a forklift operators permit by the Navy 9 years before my final Honorable Discharge from the Navy.  I claimed "Hearing problems".  The first 1974 C&P Audiologist didn't record a comment in the "tinnitus" block although I always complain because it is hard to tell some tones from the tinnitus making me punch the button when there is no beep.  The RO didn't verify whether the tinnitus was in remission or the back side of the form was ignored.

The open TDIU is to "develop" the undeveloped claim from 1987 to July of 2009.  The 1990 BVA decision failed to address it and apparently didn't read page 2 of my part time employer's statement. This might be a little iffy as a CUE but it is open anyway because of the undeveloped claim.   I'll redact and attach both.  I received SSDI from September of 1990.

The hospitalization from 8/12/1991 to 1/15/1992 denied because it was under 21 days is clearly a CUE.  There was a follow-up hospitalization in the claim that was under 21 days but should have extended the award to the end of that hospitalization for a telemetry ordered during the hospitalization.

The failure of duty to assist goes to the closing of the 1992 Appeal without a hearing because of scheduling during periods, purposefully, that I had notified VARO that I would be unavailable.  It is an attempt to reopen the 1992 Appeal, not because of new evidence but because of the denial of evidence that was in the possession of the VA.  I think failure to follow the FOIA is a failure to follow the law.  

The Dr. Thompson report has a minor error in the history.  The 1957 injury was prior to service and unconsciousness was delayed and lasted about 4 hours compared to the 1969 MVA in the Navy which resulted in 50 hours of delayed unconsciousness followed by 30 hours of amnesic semi consciousness.  Nothing showed up on the intake boot camp battery of tests.  I scored in the 99 percentile.

1 hour ago, Berta said:

 

But trying to prove retaliation in my opinion -is a waste of time-instead it is far better to get more money out of them legally, via valid claims and/or valid CUEs.

Agree.  Replying to your first post above.  But "Arbitrary and Capricious acts" fall under the Court of Appeals jurisdiction so I will include the evidence and claim it as such.  I just don't know the remedy other than re-opening the 1974 and 1987 claims for tinnitus, seizures (residuals of the head injury claimed in that manner, "residuals of" which were not developed as required.)  But the VA has an out because the 38 CFR requirement for the extensive injury examination is "if available."  My position is that when it became available and showed epileptiform EEGs with TBI residuals it should go back to the claim where the complete examination wasn't available.  And the confirmation of seizures took another 5 years from the first indication of the "with or without seizures" EEG report.  There are also indications in the Nursing Notes of the 1969 MVA hospitalization of complex partial seizures along with an intake diagnosis of "post concussion syndrome" following a 3.5 day hospitalization for unconsciousness at a private hospital.

The sad thing is that now, at 77, with proper treatment, I'm more employable than I was at 30.  I missed 47 years of optimum employability with most of those in a state of unemployability.

 

 

 

 

 

 

19860703 Dr Thompson report.pdf

19940610 VARO WY detail hearing schedules.pdf

19900507 Al Marsella Stmt_Redacted.pdf

19900917 Confirmation of Seizures redacted.pdf

Edited July 20, 2018 by Lemuel
clarity

[Lemuel]

4 hours ago, Berta said:

"We sent a copy of this letter to your representative, VANESSA G. ELLERMANN, whom you can also contact if you have questions or need assistance. 

Spent an hour online and chatting on VA eBenefits to try to get Ms. Ellermann removed as my representative per her wish and her letters.  Re Faxed the withdrawal letters and now have to give another 75 days for action to be taken.  Pretty poor.  This is the third fax to the Evidence Center on this matter.  I suppose everyone has the same problem.

 

 

 

 

 

[Berta]

There are a few attorneys with her same name and one was with the Vets ProBono Consortorium I believe-

I have no idea how you could contact her through ebenefits-

I am lost here-maybe she is a VSO at theRO?

others will help

Edited July 20, 2018 by Berta

[Lemuel]

3 hours ago, Berta said:

There are a few attorneys with her same name and one was with the Vets ProBono Consortorium I believe-

I have no idea how you could contact her through ebenefits-

I am lost here-maybe she is a VSO at theRO?

others will help

I have the letters of withdrawal.  I have supplied them to the VA but VARO still hasn't removed her from my file.  Don't need anything more from MS. Ellermann.  She sent her original letter of withdrawal also to VARO and the Evidence Center.  I'm hoping my chat with eBenefits will finally get her taken off the case.

I've been trying to get an attorney for the 10th Circuit Court of Appeals.  I have to file my Pro Se "notice of appearance" next.  Then a brief within 40 days of July 17, 2018.  Have it under control I think.  The informal form will help a lot.