OK HERE IS THE FINAL DRAFT PLEASE CHECK IT FOR ANY ERRORS & LET ME KNOW, I CAN ONLY HOPE THAT THE UNDERSECRETARY WILL KEEP HER WORD & MAKE THE VARO CORRECT THIS MESS & GET MY DISABILITY THEY HAVE CHEATED ME OUT OF FOR OVER 35 YEARS NOW. APPEAL & NOTICE OF DISAGREEMENT (NOG) TO THE BVA; I formally file this APPEAL & NOD with the BVA regarding the issues in the SOC & SSOC dated Aug 2013. On 9 December 1968, at the age of Seventeen (17) years & Thirty Four (34) days old, this Veteran Volunteered for Active Duty with the United States Army & served on Active Duty for Eight (8) Years & Four (4) Months. This Veteran operated Heavy Equipment/Machinery for Seven & One Half (7 ½) years until both knees became so injured from Operating & Repairing Heavy Equipment/Machinery including other injuries Sustained while on continuous active duty that required this Veteran to be Medically Boarded in 1975. This Veteran Received a Physical Profile with Limitations & an MOS changed from Grader Operator to Aircraft Avionics Electronics Technician. Prior to discharge in April 1977, this Veteran filed a claim for Service Connection with the Veterans Administration for; BI-LATERAL KNEE CONDITION BI-LATERAL HEARING LOSS DAMAGE TO RIGHT EAR - from a Mortar Round Explosion in 1970 in Vietnam The DVA Violated the Law under Title 38 3.159(e) The duty to notify claimants of the inability to obtain records, M-21 Part I, Subpart 1,1.C Requesting Records & M-21 Part III, Subpart ii, 1 Conducting a Routine Check of Original Claims, by failing to “Officially” informed this Veteran that 3 ½ of the 8 ½ years of Active Duty SMRs were Missing, back in 1977. As a direct result of this failure to properly follow the requirements set forth under Title 38, the DVA failed to completely review this Veterans SMR’s & as well, failed to advise this Veteran of any missing records for over 35 years violating Title 38 3.159 DVA assistance in developing claims. The DVA has Fraudulently denied this Veteran of rightful Disability as a direct result for over 35 years now. Disability that has been Proven by the BVA itself in the March 16th Decision Letter to be, beyond any doubt, Service Connected & that the NEXUS has been shown & Proven by the actual Evidence On Record, the introduction of Lay & Physical Evidence in the form of; Photos, Documents, Letters, Awards & Decorations to replace the Missing SMR information, in accordance with Title 38 Sec. 5107 Claimant responsibility; benefit of the doubt. The complete failure of the DRO in 2011 to properly adjudicated even a single issue was cause enough alone that the DVA Should have properly adjudicated the issues & awarded Service Connection for this DRO’s complete Failure to even review the records. For this DRO to deny the issues & make the BVA do the job that should have happened in 2011 only to have the issues RE-REMANDED back to the very VARO that created the CUE’s in the first place, has again failed to properly adjudicate even a single issue. As a Direct result of this fraudulent act by the DVA this Veteran was denied rightfully earned disability for over 35 years. The DVA has even continued to list the missing SMR’s in the EVIDENCE Section of every SOC & SSOC. As well, the current SOC & SSOC’s of Aug 2013 fails to make any reference to any Missing Records, but in fact continues to Perpetrate This Fraudulent act by the current denial, one that is Not Based on the DBQ’s requirments. An Opinion based on whether the injuries were a result of Operating Heavy Equipment/Machinery for Seven & One Half Years on active duty. The SOC, SSOC & Orthopedic DBQ of 2013 clearly show that the Orthopedics C&P Dr, the DRO & the Ratings Specialist have ignored the actual facts on Record of the issue regarding whether the injuries were a direct result of “Operating Heavy Equipment/Machinery” for 7 ½ years while on active duty. Instead of properly following the Law under Title 38 3.203 Consideration of “all procurable & assembled data”, including lay evidence, they chose to deny the issues in lieu of Negative Information that carries “No Weight What So Ever” with regards to the requirements set forth in the Remand Letter & the DBQ’s. The Very Evidence, that would have clearly proven the NEXUS, that is now on Record, was submitted only, because the DVA Failed to make This Veteran aware of Any Missing Records from April 1977 until now & this Veteran did not become aware of the Missing Record until 2006, Thirty years (30) Later, & only after receiving a copy of the ROA (Case 06-1956) from the BVA in 2006 did this Veteran even “First learn of the Missing Records”. Many times, this Veteran has requested, but always informed by the VARO/VSO’s that “If you request a copy of your file at this time it could delay your claim by as much as Six months or more”. Or else informed “your claim file is not here at this time”, thus the long delay in acquiring a copy of the SMRs until 2006. This Veteran has numerous times requested a copy of the records in letters and in both Claims and Appeals & in every official correspondence sense 2006, once learning of the Missing Records. As such, this “NEW MATERIAL or rather OLD MATERIAL” that should have been made a part of the record back in 1977, along with the Actual & Lay Evidence now submitted, would have already been submitted in support of this Veterans claims back in 1977. The DVA has Fraudulently denied this Veterans disability for over 35 years now based on a knowledge of the missing records & the DVA still Knowingly & Willingly Denied this Veteran Earned Disability from over 14 Years of Honorable Service in both the Army & Air Force. Once I discovered the missing records & supplied the DVA with every thing I had in my possession, to include; Photos, Documents, Letters, Awards & Decorations. Everything in my possession, except for those Copies provided by the BVA in 2006, less the Missing Records from 1968 to 1973, everything that should have been submitted back in 1977, had the DVA not failed to advise me of the missing records. Everything Except for Any Original Or Copies of any Original SMR’s, which I have never had at anytime during any service period or at any other time. I filed a NOD/Appeal & requested a one on one with the DRO in 2010. During the Hearing with the DRO, we went over each & every issue. Each issue discussed in detail, see DRO transcript 2010, with one purpose only, to prove the NEXUS, which I had assumed, I had made 100% clear to the DRO & that the DRO Fully Understood that I had in fact proven the NEXUS & did so with out any doubt on my part that she fully understood that I had made the Connection on every issue, see the transcript. When I received the SOC from this DRO, with each & every issue DENIED FOR LACK OF NEXUS, all I could do was cry. How could this DRO, after sitting in front of this Veteran, seeing the Evidence, Hearing My Testimony, & Supposedly reviewing the Actual SMR’s (which obviously did not happen) deny all issues with the same thing, “NO NEXUS”? Only to have the BVA fail to adjudicate the issues, but instead Re-Remand them once again back to the very VARO that let the Folder sit for over 12 years collecting dust & yet the BVA does not even address this issue or the Missing Records as well, & continues to deliberately deny this Veteran of legal rightfully earned disability. The DVA failed to respond to a request for an explanation as to how this could have happened. Instead, the BVA took Six Months to actually do the DRO’s job by fully reviewing the record. The BVA discovered most all the errors & mistakes made over the past 35 years, but, instead of the BVA taking the Initiative & completing the adjudication & Awarding Service Connection, like the Secretary & Undersecretaries Public Announcements that there was to be a Major Reduction in Unnecessary Remands, the BVA RE-REMANDED a now 13 year old previously Failed Remanded Claim along with the seconded Failed now 8 year old Remanded Claim. As well the BVA discovered that the Very First Claim this Veteran ever filed had been Miss-Coded & improperly Denied thus creating a 35 year old CUE, according to the Decision Letter. Now the very same VARO again denies the issues with the very same excuse “NO NEXUS”. Even though the BVA has already shown that the NEXUS exists & is seeking the NOW issue in the Remand Letter. The VARO now uses Negative Information that carries no weight what so ever with the requirements set forth by the BVA in the Remand letter of March 16th 2012, & as is clearly outlined on each DBQ with regards to the Operating of Heavy Equipment/Machinery, for Seven & One Half Years. The Orthopedic DBQ is full of Contradictions of the same improper Negative Opinion & attempts to place excessive weight on the Negative Issues that carries no weight as to the Actual Opinion required by the DBQ instructions. The Orthopedic Dr. improperly & incorrectly placed more weight on a Negative issue that is not listed by the DBQ instructions. As well, the Orthopedic Dr failed to properly look at the fact that there existed Seven & One Half years of Military History with an MOS of Grader Operator & numerous photos & documents showing the operations of other Heavy Equipment as well. The Orthopedic Dr also fails to note that this Veteran was Medically Boarded by the Army Medical Board in 1975 for Bi-Lateral Knee Condition as a direct result of many years of abuse caused as a direct result of Operating Heavy Equipment/Machinery & other Military Injuries. This Dr, instead of basing his opinion on over 14 years of Facts, as well as failing to properly following the Instructions Outlined in the DBQ, instead of properly basing his opinion on the actual requirements or the Facts, Deliberately & Intentionally sought out Negative Issues that carry no weight & repeated the Negative Issues even on some things that are not even related to these Negative issues what so ever. I created a PDF of this Dr’s DBQ’s & placed Notations on each error, mistake, & deliberate attempt at placing Negative non-weight bearing issues that only confuse, misdirect & deliberately takes the focus away from the actual issue, that of Operating Heavy Equipment/Machinery. I have aattached this at the end of this Appeal/NOD. I request that these Notations be recorded as that of a NOD with the Rating’s, DBQ’s & the C&P Exams. This Veterans claim folder contains a remanded appeal from 2001 that sat at the VARO in Jackson Ms for over 12 years. This Expedited Remand sat for over Twelve Years with Absolutely no activity what so ever. However, there was as well, a Second Failed Remanded Claim that sat at the VARO in Jackson Ms for over Seven years. Why was this not addressed in the Remand Letter of March 16th 2012 as requested by this Veteran? The DVA Continues to hide its mistakes & errors with Silence when questioned by this Veteran regarding these errors, especially those of the DRO in 2011, the Missing Records, & the Re-Remanded issues. The Veterans Administration for over 30 years denied nearly every claim filed by this Veteran stating there was “NO NEXUS”. However, once the Missing Records were discovered in 2006 & the Evidence List & all additional Lay Evidence submitted in lieu of the missing SMR’s. The DVA was forced by law under Title 38 3.160 Reopened claims, to go back, reopen, review, & correct these mistakes. However, instead of correcting the 35 years of mistakes, the BVA Remanded each & every issue, only to have the same VARO to place improper weight on something that has no value what so ever with these disability issues set forth in the instructions of the March 2012 Decision letter or the instructions set forth in the DBQ’s. Because there is, a signifagant number of direct contradictions in the DBQ’s that in themselves prove that the denied issues were not properly weighted against the actual evidence on record, but instead had negative issues brought out to over emphasize the real evidence & to deliberately attempt to dilute the Lay evidence. Because there is more than a 50% evidence weight from Actual & Lay Evidence, as well, there can be no question that the issues that were denied because of a lack of a NEXUS are now Voided by the very issue’s that have been given the Benefit of the doubt. By awarding service connection to any of the Orthopedic issues, especially when all but one of the many Orthopedic issues are related to the exact same issue of Operating Heavy Equipment/Machinery while on active duty. Any issue, even if only declared as secondary to an existing issue, means that every issue associated to any limb or body part is as well a secondary issue to the already service connected Bi-Lateral Knee condition. Thus, the VARO, the Rater, & the DRO failed to Properly Award Service Connection to all of the Secondary Orthopedic related issues in favor of improperly weighed Negative Evidence. There fore the Preponderance of the Evidence is greater than 50% in favor of the Veteran & as such, the DVA has again improperly denied this Veteran of rightfully earned Disability for over 35 years now Because all Orthopedic issues, including the Left Elbow Injury of 1988, which is well documented, was caused by a Baseball during PT, have their origins directly from Operating Heavy Equipment/Machinery for Seven & One Half Years, by approving one issue as secondary to an already Service Connected issue, whose origin is directly from Operating Heavy Equipment/Machinery, you must approve them all. The origin of injury is the same in all orthopedic issue. The Left Elbow Injury of 1988 is clearly documented; even the Orthopedic Dr stated this injury did in fact occur while on active duty in service & that the associated surgery was as well is directly associated to this injury. Yet the Dr, even after confirming the NEXUS, uses the Negative Evidence issues to influence this claim with an improper adjudication. An improper rating was given by the Rater on the direct advice using Negative information that holds no weight in this issue what so ever by the Orthopedic Dr. The Nerve Transpositioning surgery was not even considered for an increase, as Would have occurred under The Ratings Schedule & M-21 as well as Title 38. Surgery that should have been service connected was unjustly Denied. Also at no time did the Dr properly measure the Painful ROM during the Exam. At no time was Pain properly Measured or correctly Notated on the DBQ for any of the Orthopedic Pain Issues. Theses errors & mistakes have caused this injury to be improperly denied, with out just cause, for over Twenty Five (25) Years Now, only to be improperly adjudicated by the same VARO once again. This Veteran Formally disagrees with the findings of this C&P exam, the opinions on the Dr, & the improper use of a Negative issue that carries NO WEIGHT with the Preponderance Of the Evidence. This Dr failed to weigh over eight years of service for something that has no bearing of the actual issue. Regarding the ENT & PTSD DBQ’s, The DVA has failed to accept the ENT Dr’s or the PTSD Dr’s opinions in lieu of Negative Information from the Orthopedic Dr’s Biased & Faulty DBQ’s. Both of these examiners have stated in their opinions that there is no doubt what so ever as to the direct connections of these issues to Active Service in the US Army Including Combat service in Vietnam. As well, the ENT Dr even states the DVA has failed for over 40 years in making the Connection with my ear condition. In addition, the PTSD Dr also echoes that my PTSD & other Mental issues are a “Direct result of Military Service to this Country in time of Combat & Peace”. However, the VARO, Rater & DRO have placed more weight on one opinion utilizing Negative information over 2 other affirmative opinions Based on the Facts on the Record & not something that carries No Weight what so ever & Improperly Denied the claims. The Orthopedic Dr continually used the term “Preponderance of the Evidence does not show a NEXUS” but also states that there is Benefit of the Doubt at the same time. How can the VARO, the Rater or the DRO deny a claim when not only is there over 7 ½ years of actual documented evidence that this Veteran was a Heavy Equipment/Machine Operator. That this Veteran was Medically Boarded because of injuries sustained directly from Operating Heavy Equipment while on active duty & place more weight on something that carries no weight with regard to Operating Heavy Equipment? So how can the Preponderance of the Evidence for something that supposedly only happened for 29 days weigh more than the Preponderance of the Evidence of 7 ½ years of injuries sustained as a Direct Result of Operating Heavy Equipment? At no time has any claim ever been submitted or referenced the Negative issues brought up by the Orthopedic Dr. This Veteran has not violated anything under Title 38 where as the DVA on the other hand, has commented Fraud for over 35 years against this Veteran by denying claims knowing that this Veteran was unaware of missing records for over 30 years & again the Same VARO has denied rightful disability without legal Justification The BVA has Stated in the Remand Letter there was a CUE in 1977 when the VARO Miss-Coded the Right ear damage as simple Otitis Media & Improperly denied the claim, & continued to deny this obvious CUE for over 35 years now. Even in light of the ENT Dr’s positive response & the failure of the DVA to connect the evidence for over 40 years. The BVA discovered the Mistake in 2012 & has attempted to correct it by remand, but instead the VARO has again failed to properly adjudicate this claim & done so with out just cause & with an improper weightless Negative issue. The DBQ asked if the issues were Service Connected, the ENT & PTSD Examiners; Explicitly said “YES” these issues were in fact cause by Military Service during Combat. In fact, the PTSD Dr rated my PTSD as CHRONIC, Unfortunately the VARO failed to believe two affirmatives over one Negative, that is a 75% to 25% opinion in favor & the VARO again has violated my rights under Title 38 3.102 Reasonable doubt, 3.203 Consideration of “all procurable & assembled data”, including lay evidence, 4.7 Higher of two evaluations, to a proper adjudication of the “Actual Evidence & Requirements” set forth in the Decision letter & the DBQ instructions. For these reasons listed above, I formally disagree with the negative findings & improper Denials of my earned & legal Disability the DVA has denied this Veteran for over 35 years now. I request that each & every claim, as a direct result of the DVA’s Fraudulent actions in refusing to advise this Veteran of missing records that each issue be considered for an earlier date of Apr 1977. Because there are issues that were Docked with the BVA over 13 years ago & Remanded & the same issues have been RE-REMANDED again, these issues must be worked according to the earliest DVA/BVA Docket Number associated with this claim folder & must be expedited without any Further delay. I ask that the 2011 NOD that I filed with the DVA regarding the failure of the DRO in 2011 be attached to this as supporting evidence, as well as every other form, claim, appeal, or any other documents submitted by this Veteran as well be attached to this NOD/APPEAL as Evidence in support of all issues ever filed by this veteran at any time from before Discharge in Apr 1977 until Now.
Posted on: Sat, 28 Sep 2013 07:36:53 +0000
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