Board of Veterans Appeals (BVA)

REPORT OF 7 FEB 2007 SESSION

 

Hi to all

 

To Whom It May Concern:

 

Let me say, that I am discouraged, disappointed, and of course angry at the lack of Veterans Justice in this VA legal system.

 

I have waded and waited through every gauntlet put down by the White House and the VA since 2002 to arrive at what is supposed to be the “Veterans’ Chance” to prove his case in accordance with the VA rules.  I was not allowed nor given that chance.

 

Many of you Veterans and Widows have said the VA system is broken.  My conclusion after waiting to see if a Veteran does indeed get a chance to prove his case based on facts of the abuse of its own made up rules, science, medicine, statistical issues which the congress has stated the VA must rule in favor of the Veteran or his widow; and based on five years of research of how and why this VA system was even set up by primarily the Reagan/Bush Republican White Houses, Republican Senators {i.e. the Senator from Pennsylvania Arlin “lets rear end the Veterans one more time” Specter (1)} and Congressmen originally to support the White House Philosophy decision not to support the Vietnam Veterans, their widows, or their offspring from government damage is”:

 

·         The VA system is not broken.  It is working on all 8 cylinders with high compression, “as intend” by our Executive Branch to control “used up government asset spending” and control yearly budgets for those used up government damaged assets – The Veterans of the Nation, Widows, and Orphans.

 

Please this is not political.  I am only telling the facts as I know it and have found it with evidence as to why we as victims got and continue to get shafted by the legal system or the lack of one.  Up until two years ago I had always voted Republican save for one time, so this has been an eye opener for me also.

 

As most of you know if any Veteran were more prepared for a case, I would be that one.  If there were ten other Veterans in the nation that would be more prepared, I would be surprised.

 

I had my presentation double spaced, had all issues addressed with a practiced time limit of 20 minutes, and had copies for all involved as I went through the case so they could mark up and ask questions when I was done.  If there were, any questions or concerns my wife and my sister in law had carried into the meeting room my back up data and reference files which filled up a pushcart.  I could prove not only my facts but prove with the reference material we had brought with us if the judge(s) had any questions as to the reliability of my statements and references.

 

There was one judge involved and right off the bat she said I could not present like that because of time issues.  Time issues of 20 minutes after I waited from 2002 to get to this point in this trumped up system.  Twenty minutes is too long to defend my case as a Veteran in a forum were I am supposed to be able to present my case as to address the VA denials.  Twenty damn minutes is too long??????????????????

 

Therefore, I almost walked out to begin with but I let the DAV VSO take over.  The lady judge who was very very arrogant said Mr. Kelley this is your decision you do not have to do this.  You can just leave and forget this. 

 

I wanted my challenge and my evidence on the record on the recorded BVA transcripts and I was not allowed to present my 20-minute case, which is in the VA rules - I have that option.

 

This was nothing but a Kangaroo Court between the VSO and the BVA Judge.

 

Which as it turned out it took longer the way they did it which was totally confusing and did not address the issues directly as I would have in my presentation with data, medical statements, as well as references to the governments own studies and VA’s own rules and made up laws.

 

My presentation was laid out to address the specific issues by line and why my denials were wrong by the VA, as any good failure analyses engineer would do.  As you know in some of the issues, I could probably convince the IOM, given that chance to do so.

 

The new data of my having to wear right-angle boots at night to keep the tendons stretched was not brought up as well as the new diagnosis of getting fitted for leg braces because of the weakness of the neuropathy damaged joints.

 

I was not allowed to present the facts as to the bogus personal rating decision for C & P by their own Title 38 Part 4 Schedule for Rating Disabilities.

 

My contention was that I had been rated for sensory pinprick issues but not the underlying damages also caused by the long term Peripheral Neuropathy Nerve damages such as: 

 

… the wasting of subcutaneous tissue, tendons, and muscle in the lower legs and bottom of the feet –and hand;  loss of balance and joint weakness issues in load bearing joints as well as the elbow and wrists..  This equates to “weakness and pain.” 

 

By their own rating rules I was not rated in accordance with: 

 

  § 4.10   Functional Impairment.

 

The basis of disability evaluations is the ability of the body as a whole, or the psyche, or a system or organ of the body to function under ordinary conditions of daily life including employment.  Whether upper or lower extremities, the back of the abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are effected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support.  This imposes upon the medical examiner the responsibility or furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects, of disability upon the person’s ordinary activity.  In this connection, it will be remembered that a person maybe too disabled to engage in employment although he or she is up and about and fairly comfortable at home or limited activity.

  

§ 4.123   Neuritis, cranial or peripheral.

 

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis.  See nerve involved for diagnostic code number and rating.  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.

 

“Chronic progressive degeneration of the stress-bearing portion of a joint, with bizarre hypertrophic changes at the periphery.  It is probably a complication of a variety of neurologic disorders, particularly involving loss of sensation, which leads to relaxation of supporting structures and chronic instability of the joint.  (Dorland, 27th ed)”

  

§ 4.124   Neuralgia, cranial or peripheral.

 

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.  See nerve involved for diagnostic code number and rating.  Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve.

 

{§ 4.124a   Schedule of ratings—neurological conditions and convulsive disorders.}

 

[With the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function.  Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of *gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule.  With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves]

 

*At my last visit with Atlanta VA’s neurologist Dr. Alexander on 08/07/06 he used me as a primary example to educate the intern doctor and student doctor present in the room as to watch for in changes in gate due to peripheral nerve damages.

 

None of the above issues were addressed and I was not allowed to present this as fact as it related to the disability.  Disability from causations already approved by the VA as Presumptive to Diabetes caused by Agent Orange and then associated to that service connected diabetes.

 

This was particularly disconcerting with regard to the Atlanta VA rating I received because the C & P Doctor as well as his nurse had indicated a distinct loss of balance related to the muscle weakness.  Both Glenda and I remember that statement being made and discussed.

 

So did the VA paid C & P doctor just leave it out or did the Atlanta VA conveniently just leave it out?  Who knows?  I was not allowed to bring this up.

 

This was nothing but a VSO/BVA connected Kangaroo “So Called Veterans Court.”

 

Twenty minutes after waiting since 2002 was too much time for the BVA Judge to handle and hear my case with the time constraints she alluded to. 

 

Twenty minutes for a small chance at justice is too much for our White House Philosophy of deny and stall as long as the government appointees possibly can; using the legal and illegal tools the Executive Branch and the Republican Congress has given them as Defenders of the Budget for the screw-ups the Executive Branch including the President and the Department of Defense committed against the Nations Best.

 

Not much solace in the government rhetoric.  Yea, you guys and gals did a great job and as Bush says, we preciate your service.  Now get over there with all the other cover-ups, government abuses of Veterans, and the rest of the obsolete government assets that will not be maintained or supported even from our own government abuse you; as the Republican Kissenger coined in 1979, “You Military Dumb Stupid Animals.”

 

This little episode and what I have found and gone through over the last five years – I, as a Veteran and on Veterans Issues, would not walk to the edge of my driveway to vote for another Republican but that is just my opinion based on the data I have gathered and presented to you in many venues and postings; as well as what most of us have gone through in this trumped up unconstitutional legal system.

 

At this time my family members and I can no longer recommend to any of our Nations Sons and Daughters either thinking of Military Service or Staying in Military Service as a career. 

 

The price of this form of Executive Branch legal system and the offsets the retiree or his widow must pay and endure that apply to no other segment of society; after that most noble of all government service, is too high to pay.

 

If the draft has to come back then so be it and let the politics of that mandate sort out the reasons why.  Let the politicians and their lobby money explain “the” why to the nation’s voters.

 

I would like to point out what my sister-in-law told the BVA Judge as she has witnessed for over two years now the falling, the pain, the lack of balance, the dropping of stuff from my damaged hands, the opening she must do of some things as I can no longer open some things, the fatigue, etc.

 

She commented looking straight into the Judges eyes as she shook hands with the judge, “For God’s sake do something this time to help him.” 

 

(1) For Senator Arlin Specter you will remember he recently tried to get the asbestos issues under the same type of control the Veterans are under for Herbicides.  Of course, the asbestos companies would put money into a fund that would be a small percentage of damages and the money.  The litigation processes would be controlled similar to our trumped up legal system taking the asbestos victims out of the constitutional legal system and putting them under an Executive Branch legal system were the lobby money rewards for asbestos companies would have the same effect in our government as the chemical company lobby money has on our so called justice.  Thank heavens the Democrats would have no part in that little trumped up deal and defeated it.

 

If the Republicans had won that issue the stalling processes would have immediately commenced no different than our stalling and deny and denying and more stalling processes.  Find an end road and we will make a rule that end road is now a dead end.

 

No, I am not for large settlements and all that crap but I am for what the constitution promises for all of its citizens and now it seems that coverage has been extended to illegals, and that is Justice for ALL. 

 

That constitutional GUARANTEE does not extend to a white house made up JUDICIARY SYSTEM, WHICH indeed the veterans and their widows face every day with no SEPARATION of powers; also GUARANTEED by the constitution.

 

To say that congress has failed in its mission of EXECUTIVE branch oversight regarding the SEPARATION of powers would be a MISCHARACTERIZATION – it seems many have assisted in this lack of SEPARATION of government powers. 

 

More than LIKELY, they have sold out the veterans and would have sold out the asbestos victims for lobby/campaign money. 

 

Best to all,

 

Kelley and Glenda

 

As a foot note – When I asked about the “Veteran with Spouse issue” the VSO said he had taken care of it and it should be in the next one or two months disability check additional amounts.  This is the second time the saying has been conveyed, “it has been taken care of.”  When I asked why the delay, the same convenient answer keeps coming up – no one could find your files.

 

Glenda talked to Congressman Filner and he said if it could not get straighten out then he would see that the VA would indeed recognize a marriage of 27 years.  He suggested we contact Congressman Linders office and see what they can do.  We have done that and all they do is just check on status of claim.

 

Therefore, we will wait another two months for this marriage recognition and see if the VSO promises of fixing the issue once again are false promises.

 

Copies To:

 

President George Bush

The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

 

Congressman Christopher Shays

Oversight Ranch Hand

1126 Longworth Building
Washington, DC 20515-0704

 

Congressman Bob Filner

Democratic Chairman

House Veterans Affairs Committee

U.S. House of Representatives

2428 Rayburn House Office Building

Washington, DC  20515

 

Senator Daniel Akaka

Democratic Chairmen

Senate Veterans Affairs Committee

Senate Office Building
Washington D.C. 20510

 

 For Congressman Buyer

CO Mr. Jeff Phillips

Communications Director

House Veterans Affairs Committee

U.S. House of Representatives

335 Cannon House Office Building

Washington, DC  20515

 

For Senator Craig 

CO Mr. Jeff Schade

Communications Director

Senate Veterans Affairs Committee

412 Russell
Senate Office Building
Washington D.C. 20510

 

Mr. Jim Nicholson

Secretary - Department of Veterans Affairs

810 Vermont Avenue, NW, Room 1000
Washington, D.C. 20420

 

Ms. Renee L. Szybala

Director

Compensation & Pension Service

VA Central Office

810 Vermont Avenue,

Washington, D.C. 20420

 

Mr. William McLemore

Deputy Assistant Secretary

Intergovernmental and International Affairs

Department of Veterans Affairs

810 Vermont Avenue N.W. Suite 915

Washington, DC 20420

 

Mr. Len Sistek

U.S. House of Representatives

Committee on Veterans Affairs

Oversight and Investigations

Room 333

Cannon House Office Building

Washington, DC  20515

 

Mr. Chris McNamee

U.S. House of Representatives

Committee on Veterans Affairs

Professional Staff Member

Subcommittee on Disability Assistance

337 Cannon HOB

Washington, DC 20515 

 

Mr. David Abbot

Staff Member

Compensation & Pension Service

VA Central Office

810 Vermont Avenue,

Washington, D.C. 20420

 

Congressman John Linder
1026 Longworth House Office Building
Washington, DC  20515-1007

 

Senator Saxby Chambliss

416 Russell Senate Office Building
Washington, DC 20510

 

Senator Johnny Isacson

Senate Office Building
Washington, DC 20510 

 

Dr. Michelle Catlin, PhD

National Academy of Sciences
500 Fifth Street, NW

Washington, DC 20001

 

Dr. Mary Paxton, PhD

Senior Program Officer
Population Health and Public Health Practice
Institute of Medicine
Keck 871, 500 Fifth St., NW
Washington, DC  20001

 

The Entire House Committee on Veterans' Affairs
335 Cannon House Office Building
Washington, D.C.  20515

(202) 225-9756

(Congressman Filner please provide copies to all Committee Members)

 

The Entire Senate Committee on Veterans' Affairs

412 Russell
Senate Office Building
Washington D.C. 20510

(202) 224-9126

(Senator Akaka please provide copies to all Committee Members)

 

Senator Jim Webb

Senate Russell Building, C1
Washington, DC 20510

 

House Committee on Oversight and Government Reform

Subcommittee on National Security, Veterans Affairs and International Relations,
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, D.C. 20515
Attn:  Congressman
Henry Waxman. Chairman

(Please distribute copies to your appropriate Committee Membership)

  

To the Editors:

 

Atlanta Journal and Constitution

 

 

New York Times

 

 

Chicago Tribune

 

LA Times

 

 

 

To The Broadcast Media

 

Fox News

 

 

ABC News

 

 

CBS News

 

 

NBC News

 

 

CNN News