TO: BVA 09/20/2013 Jackson Regional Office Jackson, Ms WELL HERE IS THE FIRST ACTUAL DRAFT ALL HELP & SUGGESTIONS WELCOME 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. In December 1968, at the age of 17 years & 34 days old, this Veteran Volunteered for Active Duty with the United States Army. This Veteran operated Heavy Equipment/Machinery for Seven & One Half (7 ½) years until both knees became so injured from operating Heavy Equipment/Machinery & other injuries while on continuous active duty for Eight (8) Years & Four (4) Months, that this Veteran was Medically Boarded in 1975. This Veteran Received a Physical Profile with Limitations & an MOS changed from Grader Operator to Aircraft Avionics Electronics Technician. One month 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 The VA Violated the Law under Title 38 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 VA failed to completely review this Veterans SMR’s & as well, failed to advise this Veteran of any missing records for over 35 years. The VA has Fraudulently denied this Veteran of rightful Disability as a direct result. 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 was 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. As a Direct result of this fraudulent act by the VA this Veteran was denied rightfully earned disability over & over again. The VA 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 fail to make any reference to any missing records, but in fact continue to perpetrate this fraudulent act by the current denial that is Not Based on what the DBQ’s required. An Opinion based on weather 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 Examiner, the DRO & the Ratings Specialist have ignored the actual facts on Record of the issue regarding weather 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 they chose to deny the issues in lieu of Negative Information that carries “No Weight What So Ever” with regards to the requirements in the Remand Letter & the DBQ’s. All current evidence including all supplied by this Veteran & now on Record, would have been submitted back in 1977, had this Veteran been “Officially informed of the Missing Records at that time”. This Veteran would have submitted Evidence that would have clearly proven the NEXUS & would have assured a favorable decision on all previously Denied claims. The Very Evidence that is now on Record was submitted only, because the VA has 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 2006-2007, Thirty years (30) Later. Only after receiving a copy of the ROA (Case 06-1956) from the BVA in 2006-2007 did this Veteran even “First learn of the Missing Records”. Many times, this Veteran has requested, but always informed by the RO/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 2006-2007. This Veteran has several times requested a copy of the records in letters and in both Claims and Appeals once learning of the Missing Records. As such, this “NEW or rather OLD” Actual & Lay Evidence would already have been submitted in support of this Veterans claims. The VA has Fraudulently denied this Veterans disability for over 35 years now based on a knowledge that the records were missing all this time & yet the VA still Knowingly & Willingly Denied this Veteran the Earned Disability from over 14 Years of Honorable Service in both the Army & Air Force, Once I discovered the missing records & supplied the VA 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 VA 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 her part that I had made the Connection, see the transcript. When I received the SOC 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, & seeing the actual SMR’s deny all issues with the same thing, “NO NEXUS”? The VA 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 & discovering all the errors & mistakes made over the past 35 years, but instead of the BVA taking the initiative, as well the Secretary & Undersecretary both have stated that there was to be a reduction in Unnecessary Remands, the BVA RE-REMANDED a 12 year old previously Failed Remanded Claim along with a seconded Failed 7 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. Now the very same VARO again denies the issues with the same excuse “NO NEXUS”. Only this time Negative Information has been improperly placed on something that carries virtually 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 opinion & attempts to place excessive weight on a Negative Issue that carries no weight as to the opinion required by the DBQ instructions. It appears that the Orthopedic Dr. improperly & incorrectly attempted to place more weight on an issue that was not requested in the DBQ. As well, the Orthopedic Dr failed to properly look at the fact that there existed some 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. He also fails to note that this Veteran was Medically Boarded by the Army 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 deliberately seeks Negative Issues that carry no weight instead of sticking to the issued outlined in the DBQ. I have made a PDF of this Dr’s DBQ’s & placed Notations on each error, mistake, & deliberate attempt at seeking Negative non-weight bearing issues that only confuse, misdirect & only take the focus away from the actual issue, that of Operating Heavy Equipment/Machinery. I will attach it to this Appeal/NOD & request that the Notations be recorded as that of a NOD with the DBQ & C&P Exam. This Veterans claim folder contains a remanded appeal from 2001 that sat at the VARO in Jackson Ms for over 12 years. An Expedited Remand from the BVA 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 VA Continues to hide its mistakes & errors with Silence when questioned by this Veteran regarding these errors. The Veterans Administration for over 30 years denied nearly every claim I filed stating there was NO NEXUS. Once the Missing Records were discovered & the Evidence List & all additional Lay Evidence was submitted in lieu of the missing SMR’s. The VA was forced by law, under title 38, 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 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 that in themselves prove that the denied issues were not properly weighted against the actual evidence on record but instead had improper negative issues brought out to over emphasize the real evidence & to deliberately attempt to dilute the actual evidence. Because there is more than 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 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. when virtually every Orthopedic issue is related to the exact same issue, Operating Heavy Equipment/Machinery while on active duty Therefore if any issue, even if only declared as secondary to an existing issue, as well means that every issue associated to the limb or body part is as well a secondary issue to the already connected Bi-Lateral Knee issues. Thus, the VARO, the Rater & the DRO failed to Properly Award Service Connection to all of the Obvious Orthopedic related issues in favor of improperly weighed Negative Evidence. Because all Orthopedic issues, except the Left Elbow Injury of 1988, which is well documented, was caused by a baseball, 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 origian is directly from Operating Heavy Equipment/Machinery, you must approve them all. The origin of injury is the same in all but one of every orthopedic issue. As to the Left Elbow Injury of 1988, it is clearly documented, as well the Orthopedic Dr. again stated this injury did in fact occur while on active duty in service & that the surgery was as well is directly associated to the injury. But then turns around & uses the Negative Evidence issues to cause this Injury to be improperly adjudicated, & an improper rating was given, the surgery was not even considered for an increase as should have occurred, as well a claim for the Surgery was submitted & Denied. The fact that there was Nerve Damage & Neurological Surgery to correct the Nerve Damage Caused by the BASEBALL was ignored in favor of the Negative Evidence, that can no have any bearing what so ever on this injury, as well rating was made on an improperly measured Exam. At no time was Pain properly Measured or Notated on the DBQ. This Issue has been denied based solely on ROM & not Pain ROM or the fact that Nerve Damage occurred & required Surgery. 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. Regarding the ENT & PTSD DBQ’s; The VA has failed to accept the ENT Dr’s or the PTSD examiners opinions in lieu of Negative Information from the Orthopedic Dr’s negative input. 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 Service in the Army while serving in Vietnam. As well the ENT Examiner even states the VA has failed for over 40 years in making the Connection with my ear condition, as well the PTSD examiner also echoes that my PTSD & other Mental issues are Directly a result of Military Service to this Country in time of Combat. However, the VARO, Rater & DRO have placed more weight on one opinion utilizing Negative information over 2 other affirmative opinions & 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 & 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 that is the grounds for the claims in the first place? So how can the Preponderance of the Evidence for something that supposedly only happened for 29 days weigh more than 7 ½ years of injuries sustained from Operating Heavy Equipment? At no time has any claim ever been submitted or referenced the Negative issue brought up by the Orthopedic Dr. The BVA has already Stated there was a CUE in 1977 in that 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. The BVA discovered the Mistake & has has attempted to correct it, but instead the VARO has again failed to properly adjudicate this claim & done so with out just cause & with an improper weightless reason. 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. In fact the Examiner rated my PTSD as CHRONIC, Unfortunately the VARO failed to believe them & again has violated my rights to a proper adjudication of the actual Evidence & requirements set forth in the Decision letter & the DBQ instructions. Because there are issues that were Docketed with the BVA over 13 years & Remanded & the same issues again have been RE-REMANDED again, these issues must be worked according to the earliest BVA Docket Number & should be expedited without any delay. I ask that the 2011 NOD that I filed with the VA 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 me as well be attached to this NOD/APPEAL as Evidence.
Posted on: Tue, 24 Sep 2013 13:23:53 +0000
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