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. "

CUEs have no time limit. I dont know what you mean by being "certified" unless you mean they denied the CUE, and you appealed, and await transfer to the BVA.

If you can attach the actual CUE you filed, and if you have any evidence that VA received it, others will be able to help you more.

I am preparing a CUE myself and feel I need to spend more time to focus on that-I realized recently it could have impact on any Fayetteville veteran who was misdiagnosed and the misdiagnosis involved a potential service connected condition. I have put it off too long already-but the affect it can have on other veterans really hit me.

I have two General Counsel Precedent Opinions that completely support my CUE, as evidence.

VA General Counsel Pres Ops are available on line and in some cases can support CUE. 

We have others here who can go over the formal CUE you filed.I dont see in the downloads any specific VA denial on the CUE .I do see a TDIU claim still in progress.

 

 

 

 

[Lemuel]

3 hours 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. "

CUEs have no time limit. I dont know what you mean by being "certified" unless you mean they denied the CUE, and you appealed, and await transfer to the BVA.

The AOJ has never certified to the BVA a CUE.    My BVA hearing Judge ignored also my claims of CUE.  And my attorney didn't brief them.  I had, prior to the hearing, submitted a claim that had only CUE claims.  After receiving the BVA Decision in which the Judge noted I had never claimed "duty to assist," I added duty to assist in cases where the VA Medical Division did not provide or the DRO discarded evidence that should have been in the file and is indicated as existing in the file. 

The result is that, though noted in the hearing transcript and a remand ask for, neither of my two BVA decisions included either a remand for CUE consideration nor any mention of CUE.  Thus, the best I can hope for in my current NOA to the CAVC is a remand.  I'm attaching the first RO Decision (redacted) that mentions CUE.  It does not include the CUE claims for several items and on one CUE, a denial as not within the SOL.  I'm also attaching the Amendment (in process) of my NOA to the 10th Circuit for DC for the Wyoming District, the Petitions to Appeal CAVC 17-2990, BVA 89-39 868 and BVA 15-34 597 as well as other RO and DRO decisions.  Next thing to file is a request for the RBA and the VA Medical files which include the missing RBA pages to be delivered to the 10th.  I don't believe the hard copy medical files can be located because at my BVA hearing the Judge said, "LOL, the BVA cannot even get them."  There is enough in the RBA that I believe I can force the VA GC to stipulate the some evidence of CUE did exist and was removed.  The hospitalization evidence is still in the RBA.  The claim that the hospitalization from 8/12/1991 to 1/15/1992 plus an addition 7 day follow up hospitalization for an ordered telemetry examination was less than 21 days.  The erroneous 1985 C&P remarks by the Chief of Psychiatry and used by the RO and the DRO and the 1990 BVA to deny PTSD diagnosed by the C&P examiner are still there with clear and unmistakable evidence the Chief of Psychiatry's remarks were false.

It appears that if the AOJ ignores CUE Claims the only thing a veteran can do is take a copy of the claim to the BVA hearing in a brief and ask for a remand on the issue.  Unless the BVA makes the CUE then it can be taken to the CAVC.  At least that is my current reading wrestling with this.  However, there is a bypass to the Federal Circuit Court of Appeals which I am trying to avail myself of.  The FCCA appears to have the options to remand or find in favor or deny on CUE which will pretty much end it for this 77 year old veteran.  And duty to assist is not a CUE.  So the claim has to be based on "evidence in the possession of the Appellee" whether or not it was stated as being considered or even obtained from the Medical Division or Military.  If it has been obtained then the claim is reopened on new evidence.  This then gets into the "arbitrary and capricious" blind eye on the veteran's requested evidence or evidence that, by law, should have been obtained.

I suspect I'm on a "veteran whistle blowers' list" as persona non grata for activism on Veterans' with Organic Brain Syndromes since 1987.  Finally in 2008, after 8 years of making trips to DC between 1995 and 2003, mild, moderate and moderately sever traumatic brain injuries were recognize.  (which includes me) Veterans with residuals of p. falciparum malaria (cerebral malaria) are still being stiffed although the pathology text books going back to WWI clearly indicate brain damage and the etiology of that brain damage was published in an NIH study in December of 2016.  I've never had malaria but there are several RO decisions denying service connection for malaria, which I never claimed.  The TBI revision was because of an article by a reporter.  I like to think my activism planted the seed for the reporter's article.  And I'm hoping that I can engineer a report about how the military and VA turned a blind eye to compensating the cerebral malaria victims and the concussive blast effect victims, both new NIH studies confirming old pathology text books.  My standing in both of those is iffy.  It rests upon, as a medic, leaving no one behind and the resulting PTSD of believing you have.  Hope there is someone reading this with unequivocal standing and an attorney to join the case.

I believe the problem obtaining compensation for veterans with organic brain syndromes has been the attack on "entitlements."  Properly compensated, for example, approximately 100,000 (possibly more) of the 250,000 Viet Nam veterans who had malaria would have their disability compensation increased by an average of over $500.00 per month.  That would be $600,000,000.00 per year, $6 billion per decade in budget dollars going to veteran compensation instead of to military contracts.  If, in the Phoenix/Cheyenne VA crisis, a lobbyist could put out a new Lexus and a trip to Disneyland for a former assistant in order to engineer the potential Choice contracts.  (ultimately over $30 billion per year with much smaller profit margins on the contracts) Think of what the Bankers' who fund and Military Industrial Complex could put out to engineer no compensation for veterans who can't hold a job because of organic brain syndrome residuals, but can walk and talk.  Some even write as well as I do when not under the stress of job performance.

If you can attach the actual CUE you filed, and if you have any evidence that VA received it, others will be able to help you more.

I don't have the actual claim.  I filed online and haven't found a way to retrieve a copy yet.  May have to call 800 827 1000 and ask for a mailed copy.  However, I am attaching the NOD redacted 

I am preparing a CUE myself and feel I need to spend more time to focus on that-I realized recently it could have impact on any Fayetteville veteran who was misdiagnosed and the misdiagnosis involved a potential service connected condition. I have put it off too long already-but the affect it can have on other veterans really hit me.

This is the basis for one of my CUE claims.  I'm claiming confirmed temporal lobe seizures mistreated with Tegretol which was "cautioned against use" in the PDR for the confirmed seizure diagnosis.  Based on unresponsiveness to the medication (the basis for diagnosis of pseudo or psychogenic seizures) pseudo seizures were diagnosed when I weaned off the medication AMA after 5 months of getting worse.  By definition, in all of the medical dictionaries I viewed, pseudo seizures cannot be diagnosed if there has been a recorded epileptiform interictal EEG report. I have several EEG reports stating spiking or sharp waves "with or without seizures" plus the brains "drug effect" beta waves that occur to dampen or prevent a seizure.  (lot of study at the NIH library in DC trying to understand my condition.)

I have two General Counsel Precedent Opinions that completely support my CUE, as evidence.

VA General Counsel Pres Ops are available on line and in some cases can support CUE. 

We have others here who can go over the formal CUE you filed.I dont see in the downloads any specific VA denial on the CUE .I do see a TDIU claim still in progress.

Thanks for the information.  I answered "What do you mean" above.

 

 

 

 

 

20180305 VA letter re issues_Redacted.pdf

20180108 NOD Rating Dec 11-1 signed_Redacted.pdf

20180727 Amend Petition for CAVA & VA review.pdf

Edited July 23, 2018 by Lemuel
left out important part