Petition for Writ of Certiorari — Wister v. Nicholson, 128 S. Ct. 106 (2007) (No. 06-1566)
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
OFFICE OF THE pi
ct ttn WT EP. me has
a ae Sy re
EAE TT IIE PE BE LONE LIME LASTER
In The
Supreme Court of the United States
ROBERT B. WISTER -PETITIONER
VS.
SECRETARY OF VETERANS AFFAIRS
R. JAMES NICHOLSON
Coappellee
SECRETARY OF THE AIR FORCE
JAMES G. ROCHE
Coappellee
ON PETTTION FOR WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Robert B. Wister
26256 Hickory Ave.
Hayward. CA 94544
Pro Se
(510)783-3006 msg screen
QUESTIONS PRESENTED
Dilatory and illegal actions within the VA and
subsegent boards and courts to the destruction of veterans
rights.
Interference with the Constitutional power of the
nation to raise and maintain armed services.
Supervision of lower courts and federal boards and
agencies. Failure to apply case precedent and rules of law.
LIST OF PARTIES
All known parties are listed in the cover with the
following additions.
Kenneth S. Kessler
Department of Justice-Civil Division
Commercial Litigation Branch
1100 L Street, NW, Room 7026
Washington, DC 20530
Solicitor General of the United States
Room 5614
Department of Justice
950 Penyslvania Avenue, N. W.
Washington, DC 20530-0001
il
OPINIONS BELOW
The denial of motion for rehearing in the United
States Court of Appeals appears as appendix p4 to the petition
and has been designated for publication, unknwon if
publ ‘ished.
JURISDICTION
The date on which the United States Court of Appeals
decided my case was October 5, 2006.
A timely petition for rehearing, enbanc, was denied by
the United States Court of Appeals on the following date
December 12, 2006 and a copy of the order denying rehearing
appears as Appendix pé.
The jurisdiction of this Court is involked under 28 U. S. C.
§ 1254 (1).
RELAVENT STATUTORY PROVISIONS INVOLVED
CONSTITUTION: ARTICLE 1. Section 8. 12. 13. 14. 15. 16,
to raise and maintain armed forces.
CFR 38 4.88b Refusal to acknowledge and apply existence
of established categories of disease and chemical/radiation
cases and treatment.
38 USCA §§354 (b), 5107,; PB VRR §§3.102, 3.304 (d),
iil
Failure to preserve and maintain service records to the
detriment of treatment and diagnosis of noncombat injury and
disability. Use thereby to refuse to conform to rule of law in
such cases of absent records. Moore v. Derwinski 1 Vet. App.
401, 38 USCA § App-, 91 Destroyed records create
presumption of service connection.
Refusal to apply "benefit of the doubt" rule of law in veterans
cases. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991)
(when SMRs have been destroyed, BVA has heightened
obligation to provide explanation of reasons or bases for its
findings and to consider benefit-of-doubt rule). Curry v
Brown 91-504
38 C.F.R. § 4.87a, DC 6260 (1992):Floyd D. Bucklinger v
Brown 92-273 disease vs trauma causitive of disability
[constitutional question]
5 U.S.C. § 702 "A person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to
judicial review thereof."
iV
INDEX TO APPENDICES
APPENDIX 1 DECISION OCT 5, 2006 ........... l
APPENDIX 2 Remand 06-7030 ................ 4
October 5, 2006* FCCA *
APPENDIX 3, Denial of motion for rehearing ....... 6
December 5, 2006* FCCA final 12/19/06
APPENDIX 4, Opinion 04-0340 October 12, ..... 7-22
2005*CVA TABLES OF DOCKET 4 PG
APPENDIX 5, Brief 2004*, Ref: Record on appeal, 23-53
1,800+ pages (see copy filed with CVA) Record on Appeal
submission (face page) mailed June 1, 2004 [copies on
demand]
APPENDIX 6, BVA DECISION 2002* ......... 54-69
APPENDIX 7, USAF AFRBA AFBMC 00-01065* . 70-73
APPENIAX &, Form 9 1996" ................ 74-80
APPENDIX 9 RE: SC 97-3220/2055/1746 March 22, 20081
APPENDIX 10 Other case law. .............. 81-96
END
]
STATEMENT OF THE CASE
Veteran served in the Air Force from May 51 to
October 54. During that service, while in pilot training, he
became hospitalized after a series of increasingly acute
medical symptoms. He subsequently was hospitalized several
more times with acute severe medical symptoms after
resigning pilot training. He was discharged [General] under
false pretenses as mentally unfit and NO medical diagnosis of
chronic disease.*”
Ensuing were continuing medical symptoms of chronic
disease denying schooling and employment and costing
continuous medical treatment.
Discovery of the underlying cause, concealed from the
victim, was made by clinical diagnosis at a VA facility, '96.
Such diagnosis was overturned by administrative personnel
under false pretenses.*”
Application for disability was first "Well grounded
case" then denied.*** All subsequent actions by boards and
courts continued this denial with refusal to admit medical
papers to substantiate the clinical set of symptoms or admit
the evidence of a military flight surgeon's opinion "...with
some degree of certainty to such an event as the
underlying cause..."".“”
The actions are typical long standing, 100 years, and
were the model followed in the notorious 'Agent Orange’ case
where action of congress was necessary to overcome the
effects of VA, boards and courts cooperation in concealment
and denial.*”
REASONS FOR GRANTING THE WRIT
2
The case from medical inception is now 55 years. The
ongoing chronic disease and the lifelong effects have, as with
many others like afflicted, impoverished and debilitated the
victim. The medical effects of the particular disease have
invaded the civil medical community with complicity in
denial and treatment to the detriment of national health.
Knowledge of this method of treatment of veterans such as
"XYZ War Syndrome", of which this particular disease forms
a major part, has become such a well known barrier to
recruitment as to bring a national crisis in attempting to return
to the medieval conscription process. This will cause an all
encompassing national angst and revulsion.
CONCLUSION
It is self evident that conditions in the Veterans
Administration and the several courts and boards must be
reformed. The effects on public health and national integrity
cannot be ignored.
Trial by jury is the only method to demonstrate
publicly what has pervaded the government handling of
diseased veterans and certain proscribed ‘diseases to the
detriment of public health. That will present a public record
for use by others so afflicted. A leading case.
Respectfully submitted
Robert B. Wister
26256 Hickory Ave.
Hayward, CA 94544
May “2/ __, 2007
APPENDIX
PE RR TM Lah aL Ne ENE. SME TAUN Tween LEM Pus ance Cup he PAVES Wong seo
1
INOTE: Pursuant to Fed. Cir. R. 47.6 this decision
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal
Circuit
06-7030
ROBERT B. WISTER,
Claimant-Appellant.
Vv.
R. JAMES NICHOLSON. Secretary of Veterans Affairs,
Respondent-Appellant
Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit
Judge, and GAJARSA, Circuit Judge.
PER CURIAM
Robert B. Wister appeals the decision of the United
States Court of Appeals for Veterans Claims, which affirmed
a Board of Veterans Appeals decision denying his claim for
service connection for Lyme disease. Wister v. Nicholson,
No. 04-324 (Vet. App. Sep. 20, 2005) We vacate and remand.
The Secretary of Veterans Affairs has a duty to "make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate the claimant's claim."38 U.S.C. §
5103A(a)(1). This duty expressly requires the Secretary to
"make reasonable efforts to obtain relevant records (including
private records) that the claimant adequately identifies to the
Secretary and authorizes the Secretary to obtain." ld. §
5103A(b)(1); see also Id. § 5103A(c)(1)(requiring the
Secretary to obtain aclaimant's service medical records).
Wister argues that the Department of Veterans Affairs
("VA") breached its duty to assist him by not obtaining
relevant documents f-om the Air Force, particularly Service
Medical Records from November 6, 1952 to March 3, 1953.
During this period, Wister was hospitalized and treated at two
2
Air Force hospitals. The record suggests that some records
from this period were obtained. However the government
concedes that the records were incomplete. In particular, the
government has stated that the record did not include the
daily treatment or clinical records for most of that period. In
addition, there is no indication that the VA determined that
they do not exist or would be futile to obtain.
Nonetheless, the Veterans Court held that the VA
fulfilled its duty to assist Wister. In doing so the Veterans
Court noted that the VA had requested records from at least
ten providers on a list submitted by Wister, advised him of
documents not received Wister, No. 04-324, slip op. at 8. It
then concluded that there "appears to be no other ‘relevant
records’ specifically identified by Mr. Wister that the VA did
not attempt to obtain." Id. The government earlier requested
a remand for a determination of whether the duty to assist
was satisfied in light of these documents not being obtained
and the record being unclear as to whether the VA ever
requested them from the Air Force. A judge of this court
denied that motion, determining that the argument was best
presented in the government's brief on the merits. Wister_v.
Nicholson, No. 2006-7030 (Fed. Cir. Apr. 5, 2006)(Order).
Having now reviewed the issue in its entirety, we agree that
remand is proper.
First, despite the court having a nearly two thousand-
page record before it and the VA having obtained records
from ten providers, the duty to assist is not measured by the
bulk of the information obtained. Indeed, compiling a
voluminous record does not obviate the need for, nor satisfy
the VA's duty to provide, a complete record.
Second, in addressing the merits of his claim, the
Veterans Court noted that Wister "does not contend that the
[missing] records contain a diagnosis of Lyme disease; rather
he believes the records contain other diagnoses or symptoms
consistent with Lyme disease." Wister, No. 04-324, slip op.
iiniciieeieienieibiniaiaiamealll
3
8. Putting aside the obvious fact that Wister would not know
the contents of the documents that the VA failed to obtain,
the VA is obligated to obtain them unless "no reasonable
possibility exists that such assistance would aid in
substantiating the claim." 38 U.S.C. § 5103(a)(2) Thus, the
Veterans Court applied an incorrect standard by concluding
that there are "no other ‘relevant records." Instead the
standard set forth in section 5103A(a)(2) must be applied. In
addition, this correct standard should be applied in light of the
government's previous motion for a remand, which candidly
stated that even if the documents do not contain a ‘Lyme
disease diagnosis, they "may be relevant if they contain other
diagnoses or symptoms consistent with Lyme disease."
Moreover, when the VA “attempts to obtain records
from a Federal department or agency under this subsection or
subsection (c), the efforts to obtain those records shall
continue until the records are obtained unless it is reasonably
certain that such records do not exist or that further efforts to
obtain those records would be futile." Id. § 5103A(b)(3).
Since the requested records were not obtained and the record
does not indicate if any attempts were made to obtain them,
we remand for compliance with the duty to assist.
In light of our remand, we do not address the denial
of his service connection claim on the merits. Indeed, to the
extent that Wister challenges the application of the law to this
factual case, we lack jurisdiction. 38 § 7279(d)(2). Wister also
has requested the case be transferred to district court for a
jury trial. However, a party "in an action against the United
States has a right to trial by jury only where Congress has
affirmatively and unambiguously granted that right by
statute." Lehman v. Nakshian, 4453 U.S. 156, 168 (1981).
Here, the statutory scheme provides the Veterans Court with
exclusive jurisdiction to review board decisions, 38 U.S.C. §
7252(a)-(b), thereby precluding the availability of a jury trial.
4
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
06-7030
ROBERT B. WISTER,
Claimant-Appellant.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Judgement
ON APPEAL from the UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
In CASE NO(S) 04-0324
This CAUSE having been heard and considered, it is
ORDERED AND ADJUDGED
VACATED AND REMANDED
ENTERED BY ORDER OF THE COURT
DATED OCT 5 2006 S/JAN HORBALY
Jan Horbaly, Clerk
ISSUED AS A MANDATE Dec 12 2006
5
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
ROBERT B. WISTER
Claimant-Appellant
No. 06-7030
)
)
)
R. JAMES NICHOLSON )
SECRETARY OF VETERANS AFFAIRS )
Respondent-Appelle )
ORDER
Upon consideration of respondent-appelle's motion
requesting that the Court remand this matter to the Veterans
Court for further consideration of whether the VA complied
with 38 U.S.C. § 5103A, it is hereby
ORDERED, that the respondent-appelle's motion be
granted
FOR THE COURT
[BLANK]
Dated: BLANK, 2005
Washington, D.C.
cc:Kenneth S. Kessler
Robert B. Wister
6
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
ROBERT B. WISTER )
Claimant-Appellant )
) No. 06-7030
R. JAMES NICHOLSON )
SECRETARY OF VETERANS AFFAIRS )
Respondent-Appelle )
ORDER
A petition for rehearing em banc having been filed by
the Appellant, and the matter having first been refered to the
panel that heard the appeal, and thereafter the petition for
rehearing en banc having been refered to the circuit judges
who are in regular service.
UPON CONSIDERATION THEREOFF, it is
ORDERED that the petition for rehearing be, and the
same is, DENIED and it is further
ORDERED that the petition for hearing en banc be,
and the same hereby is, DENIED.
The mandate of the court will issue on December 12,
2006.
FOR THE COURT
s/SIGNATURE
Jan Horbaly
Clerk
Dated 12/05/2006
cc: Robert B. Wister
Kenneth S. Kessler stamp/Jan Horbaly
WISTER V DVA, 2006-7030
(CVA - 04-324)
7
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS
CLAIMS
No. 04-0324
ROBERT B. WISTER, APPELLANT
Vv.
R. JAMES NICHOLSON,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet.App.R 30(a)
this action may not be cited as a precedent
DAVIS, Judge: The pro se appellant Robert B. Wister,
appeals from a February 24, 2004, decision of the Board of
Veterans’ Appeals (Board or BVA) that denied him service
connection for Lyme Disease.’ This appeal is timely, and the
Court has jurisdiction pursuant to 38 U.S.C. §§ 7525(a) and
7266(a) to review the Board decision. Single-judge disposition
is appropriate here because the case is one of reactive
simplicity whose outcome is controlled by the Court's
precedents and is not "reasonably debatable." Frankel v.
Derwinsky, 1 Vet.App 23, 25-26 (1990). For the reasons
provided therein, the Court will affirm the Board's February
24, 2004, decision.
“Lyme disease [term unknown until '74] is transmitted to humans through the bite
of infected ticks, presenting with "[t]ypical symptoms including fever, headache,
fatigue," and a skin rash, but "[i]f left untreated, infection can spread to joints,
heart, and the nervous system." Learn about Lyme Disease, Centers for Discase
Control and Prevention, Division of Vector-Borne Infectious Diseases, af
http://www.cde.gov/ncidod/dvbid/lyme.
8
1. FACTS
Mr. Wister served on active duty in the U. S. Air
Force from June 1951 to October 1954 Record (R) at 18.
Service medical records (SMRs) from that time reflected that
he was under observation for suspected rheumatic fever (R.
at 32), he was treated for mononucleosis (R. at 42-48),
he was hospitalized for complaints of stiffness in the back and
neck (R. at 101) and he was diagnosed with chronic hepatitis,
schizoid personality, deafness in the 'eft ear, and epidermoid
cyst (R. at 105), but the SMRs contained no diagnosis of
Lyme disease (R. at 101). he received an administrative
discharge based on diagnosis of severe schizoid personality.
R. at 98.
In July 1996, the appellant filed a claim for service
connection for Lyme disease., submitting a letter to his VA
physician specializing in infectious diseases, Dr. Karp,
regarding his clinical records "to show particularly the clinical
signature of the onset of LYME DISEASE." R. at 320
(emphasis in original). He also submitted an April 1996 letter
attaching inter alia, medical records check lists regarding
symptoms of Lyme disease from articles on Lyme disease, a
bibliography of Lyme disease articles, and lists of current
symptoms and medications. See R. at 425-567. The record
also reflects a May 1996 letter revealing that Mr. Wister's
“antibody response to the Lyme disease spirochete B.
bergdorferi" was negative. R. at 687. Additionally, the record
reflects an October letter from Mr. Wister to Dr. Karp and the
BVA analyzing testing for Lyme disease and including many
abstracts of journal articles pertaining to Lyme disease. R. at
695-709. In November 1996, the RO denied service
connection for Lyme disease because there was no evidence
that Mr. Wister currently had Lyme disease or that it was
related to service. R. at 406-08. Mr Wister filed a Notice of
Disagreement that same month, attributing the symptoms and
"cycles of medical incapacity" to Lyme disease. R. at 410. In
9
November 1997 De. Karp submitted a statement noting that
"Mr. Wister was presently diagnosed, and treated for Lyme
disease and exhibits the characteristics of late, long them
Lyme disease." R. at 674.
The next month, in December 1997, Mr. Wister
underwent a VA medical examination to determine the
existence and etiology of Lyme disease. R. 689-93. After
reviewing Mr. Wister's claims file (C-file) and conduction a
physical examination, Dr. Relman concluded the following:
[T]here is no good evidence to suggest the
diagnosis of Lyme disease either in the 1950s
nor at any time subsequently...there is nothing
to about this patient's history or physical
findings that suggests in a compelling fashion
a diagnosis of Lyme disease. Each of his
complaints can be explained on the basis of
unrelated and common illness. I disagree with
Dr. Karp's assessment that the patient exhibits
the characteristics of late long-term Lyme
disease. In fact, this patient's presentation is
atypical for Lyme disease, and together with
repeated multiple negative laboratory
tests suggest that Lyme disease is quite
unlikely in this patient.
R. at 693.
In March 1998, the appellant provided unsworn
testimony at a personal hearing, contending that he was the
"oldest living diagnoses Lyme case in the world." R. at 933-
42. In April 1999, the RO issued a Supplemental Statement
of the Case maintaining its previous denial of service
connection. R. at 970-81. In February 2000 the Board
remanded Mr. Wister's claim for further development. R. at
1003-04.'In April 2000 Mr. Wister submitted many
documents in support of his claim, including medical articles
on Lyme disease, abstracts from journal articles pertaining to
10
Lyme disease, medical records, and letters to Dr. Karp
regarding his daily symptoms and his analysis of Lyme
disease. R. at 1332-1408. Thereafter, the RO requested
records from at least 10 private and VA physicians (R. 1457-
1500), and also requested that Dr. Karp comment on the
opinion of Dr. Relman (R. at 1572). In December 2002, VA
physician Dr. Thomas Gamsky compieted an "infectious,
immune, and Nutritional Disabilities Exam." R. at 1758-59,
No physical examination was conducted, but Dr. Gamsky
noted that "[t]he patient had four large C-files available for
review and these were all reviewed in detail." R. at 1758. Dr.
Gamsky also spoke to Dr. Karp by telephone about Mr.
Wister's prior diagnosis of Lyme disease. R. at 1758-59. Dr.
Gamsky documented the discussion as follows:
Dr Karp feels indeed this patient has
symptoms that were suggestive of Lyme
disease and that he did provide numerous
evaluations and testing for such. However, Dr.
Karp was never able to identify Lyme disease
in [Mr. Wister] with any degree of certainty
and in fact, [in] his report of October 2001,
the patient states that he did [] find evidence
of Lyme disease....Dr. Karp indicates this
patient likely does not have the diagnosis of
Lyme disease in his opinion.... The patient had
a Lyme titer in 1997. Dr. Karp indicates that
this titer was negative.
Id. Dr Gamsky concluded that "this patient does not likely
have Lyme disease." See id.
In February 2004, the Board issued its decision on
appeal. See R. at 1-16. In its decision, the board discounted
assertions form the veteran that his symptoms represented
Lyme disease, noting that Mr. Wister, as a lay person, is not
11
qualified to offer an opinion that requires medical knowledge.
Id. The Board further noted that (1) there was no evidence of
a diagnosis of Lyme disease in service. (2) Dr. Karp
rescinded his 1997 diagnosis of Lyme disease, (3) tests
conducted to detect Lyme disease were negative, (4) a VA
examiner found that "Lyme disease is quite unlikely in this
patient", and (5) another VA examiner concluded that Mr.
Wister likely did not have Lyme disease. R. at 10-13. Based
on these findings, the Board concluded that (1) "the
preponderance of the evidence shows that the veteran does
not currently have, nor has he ever had Lyme disease" and (2)
"Lyme disease was not incurred in or aggravated by service."
R. at 10, 13.
Il. APPLICABLE LAW AND ANALYSIS
A. Parties Arguments
On appeal to the Court, Mr. Wister argues that his
current symptoms and past diagnoses contained in his medical
records definitely prove that he has Lyme disease. Appellant's
Brief (Br) at 6-17: Appellant's reply Br. at 4. in support of his
conclusion, he first notes Dr. Karp's diagnosis of Lyme
disease (Appellant's Br. at 9), and discounted Dr. Karp's
recision of his diagnosis, stating that Dr. Karp was "forced to
retract his clinical diagnosis" during a period of partial
remission of his symptoms (Appellant's Reply Br. at 2).
Additionally, Mr. Wister cites a medical journal that identifies
symptoms of Lyme disease that were reflective of his own
symptoms (Appellant's Br. at 9), an unnamed treatise
identified Lyme disease as accounting "for 91% of vector
borne infections in the United States" (Appellant's Br. at 15),
and an additional book on Lyme disease which explained the
lack of positive test results (Appellant's Br. at 12). He
suggests that medical that medical records were missing from
his file, which contained further diagnoses and symptoms
12
indicative of Lyme disease. Appellant's Br. at 13-14;
Appellant's Reply Br. at 2, 3. On these grounds Mr. Wister
requests that this Court not remand his claim, rather, he
essentially requests reversal of the Board's decision and an
award of total damages in excess of $8.9 million. Appellant's
Br. at 17-20.
The Secretary argues that the Board reviewed and
considered all pertinent evidence of record and provided an
adequate statement of reasons or bases to support that service
connection for Lyme disease is not warranted. Secretary's Br.
at 7-11. The Secretary that generally Mr. Wister's contentions
consist primarily of arguments regarding symptomology that
he believed were ignored by VA. Secretary's Br. at 12. As to
Mr. Wister's allegation of missing records, the Secretary
maintains that the record is replete with VA's attempts to
assist Mr. Wister in obtaining any records that he believed
were missing, including sending a form to Mr. Wister's
Congressman to assist him in obtaining any missing records
himself. Secretary's Br. at 12.
B. Service Connection
Service connection for purposes of VA disability
compensation will be awarded to a veteran when the record
before the Secretary contains (1) a medical diagnosis of
current disability, (2) medical or lay evidence of incurrence
or aggravation of disease or injury in service, and (3) medical
evidence of a nexus between the in-service injury or disease
and the current disability. See 38 U.S.C. § 1110: Caluza v.
Brown, 7 Vet. App. 498, 505 (1995), affd per curiam, 78
F.3d 604 (Fed. Cir.1996)(table); 38 C.F.R. § 3.303 (2004).
Service connection is a factual determination by the Board
that the Court reviews for clear error. See Rose v. West, 11
Vet. App. 169, 171 (1998). "A finding of fact is clearly
erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with a definite
and firm conviction that a mistake has been committed."
13
Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)(quoting
United States v. U. S. Gypsum Co., 333 U.S. 364, 395 (1945).
"(This Court is not permitted to substitute its judgement for
that of the BVA on issues of material fact; if there is a
‘plausible’ basis in the record for the factual determination of
the BVA,...[the Court] cannot overturn them." /d. at 53 "The
appellant bears the burden before this Court of establishing
that the fact-finding below was clearly erroneous." Zinc v
Brown, 10 Vet. App. 258, 259 (1997). However, the Board
cannot reject evidence favorable to the claimant without
providing adequate reasons for its decision. See Meyer v.
Brown, 9 Vet. App. 425, 433 (1996).
The Board must base its decisions on "all evidence
and material of record." 38 U.S.C. § 7104(a), and must
provide a "written statement of [its] findings and conclusions,
and the reasons‘or bases for those findings and conclusions,
on all material issues of fact and law presented on the
record." 38 U.S.C. § 7104(d)(1). See Douglas v. Derwinski,
2 Vet. App. 435, 438-39 (1992)(en banc}; Gilbert, supra. In
addition, the Board must "account for the evidence which it
finds to be persuasive or unpersuasive," and provide reasons
or bases for rejecting evidence submitted by or on behalf of
the claimant. Gilbert, 1 Vet. App. at 57. However, the Board
need only provide written statements of its findings regarding
"material" evidence. See Douglas and Gilbert, both supra.
("Material evidence" has been defined in new-and-material-
evidence context under 38 C.F.R. § 3.156(a) as “existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact necessary
to substantiate the claims. 38 C.F.R. § 3.156(a)(2004). The
Court finds this definition for out purposes here as well.)
Reversal is the appropriate remedy only when "there is
absolutely no plausible basis" for the Board's decision and
where that decision "is clearly erroneous in light of the
unconterverted evidence in the appellant's favor." Hicks v.
14
Brown, 8 Vet. App. 417 (1995). In the absence of a finding
of nonprejudicial error, where the Board has failed to provide
an adequate statement of its reasons or bases for its
determinations, vactur and remand is warranted. See Duenas
v. Principi, 18 Vet. App. 512, 517 (2005).
I. Reasons and Bases
Here, the Board noted that Mr. Wister's opinions
regarding his symptoms representing Lyme disease were
inappropriate because, as a lay person, Mr. Wister was “not
qualified to offer an opinion that requires medical knowledge,
such as a diagnosis or an opinion as to the cause of
disability." R. at 10 (citing Espiritu v. Dersinski, 2 Vet. App.
492, 494-95 (1992)). However, although not specifically
raised by Mr. Wister, the Board's recitation of facts and
analysis lacked reference to Mr. Wister's medical treatises
submitted before the board, even though medical treatises
may constitute "competent medical evidence." See 38 C.F.R.
§ 3.159(a)(1) (2004)(noting that "competent medical
evidence" includes "statements conveying sound medical
principles found in medical treatises" and "statements
contained in authoritative writings such as medical and
scientific articles and research reports or analyses"; R. at 1-16.
With regard to medical treatise evidence, this Court
has held that generally, medical treatises are too inexact,
standing alone, to satisfy the nexus requirement for service
connection. See Sacks v. West, 11 Vet. App. 314, 317 (1998).
In Sacks, the appellant stated that he experienced sores on his
mouth during his active service, an allegation that was
confirmed by statements of his parents. /d. at 315. After
being later being diagnosed with "pemphigis vulgaris” the
appellant sought to introduce a medical journal article that
stated that pemphigis vulgaris usually presents with "painful
mouth erosions," which "are the only abnormality for months
before the skin erosions and or facial blisters develop." /d. He
relied on this evidence to demonstrate that his pemphigis
15
vulgaris arose during service. Jd. In determining that the
medical treatise evidence was insufficient to establish the
nexus the Court reasoned that a statement as to
symptomology "cannot be used by a lay person to evaluate
meaningfully the facts in a specific case because it in no way
addresses-let alone eliminates-the possibility of the existence
of other conditions that also often present with the same
symptomology." /d. at 317. The Court did find, however, that
medical articles and treatises evidence "can provide important
support when combined with an opinion of a medical
professional." /d.
Here, Mr. Wister's medical articles identifying
symptomology likewise, standing alone, cannot establish
nexus, nor that he has a current disability, particularly in the
absence of similar opinion of a medical professional. See id.
Because the articles are insufficient to prove any
unestablished fact necessary to support his claim. (i.e., a
current disability or incurrence or aggravation in service), the
Board did not error by not addressing this immaterial
evidence. See 38 C.F.R. § 3.156(a).
Nonetheless, the Board is not permitted to "rely[] on
its own unsubstantiated medical opinion" when rendering and
analysis as to service connection. That is not the case here.
As explained below, even if the Board erred in failing to
analyze the probative value of certain evidence, any error was
nonprejudicial to Mr. Wister because the preponderance of
evidence fails to demonstrate that he ever had Lyme disease.
See Duenas, supra; see also Soyni v. Derwinski, 1 Vet. App.
540, 546 (1991) (declining to remand where, because
evidence was “overwhelming" against the claim, "strict
adherence" to reasons-or-bases requirement "would result in
this Court's imposing unnecessary additional burdens on the
BVA and [VA] with no benefit flowing to the veteran").
2. Plausible Basis
In the instant case, as the Board found (R. at 13), the
16
preponderance of evidence is against a finding that Mr.
Wister has a current disability of Lyme disease or that it was
incurred or aggravated in service, as required by 38 U.S.C. §
1110. Service medical records contain no reference to Lyme
disease. R. at 10, see R. at 23-287. The first mention of the
possibility of Lyme disease occurred many years after
separation from service. R. at 10-11. Even then, in May 1996,
a test administered to Mr. Wister revealed a negative antibody
response to "the Lyme disease spirochete." R. at 687.
Additionally three physicians concluded that Mr.
Wister likely did not have Lyme disease. Although in
November 1997, Mr. Wister's infectious disease physician,
Dr. Karp, submitted a statement reflecting that Mr. Wister
was diagnosed and treated for Lyme disease (R. at 674), he
later recanted that diagnosis, stating that Mr. Wister likely did
not have a diagnosis of Lyme disease (R. at 1758-59). In
December 1997, after reviewing Mr. Wister's C-file, Dr.
Relman concluded that Lyme disease was "quite unlikely" R.
at 693. Finally, in December 2002, Dr. Gamsky reviewed "in
detail" Mr. Wister's large claim file (which at that time,
would have included Mr. Wister's evidence regarding
symptomology and medical treatise evidence) and concluded
that Mr. Wister "does not likely have Lyme disease." R. at
1758-69.
Although Mr. Wister believes that some records are
missing, he does not contend the records contain a diagnosis
of Lyme disease; rather he believes the records contain other
diagnoses or symptoms consistent with Lyme disease.
Because Mr. Wister is a lay person unable to provide a
medical opinion that requires medical knowledge, see
Espiritu, 2 Vet. App. at 494-95, even when combined with
medical treatise evidence, his contentions as to
symptomology, unsupported by any medical opinion, and
specifically refuted by three physicians, are insufficient to
render clearly erroneous the Board's conclusion that Mr.
17
Wister never had Lyme disease or that it was incurred in
service. See Sacks, supra. Because there is a plausible basis
in the record for the Board's conclusion, this Court will affirm
the Board's February 2004 decision.
C. Duty to Assist
The Court will construe Mr. Wister's allegations of
missing medical records as a claim that VA violated its duty
to assist him as required by 38 U.S.C. § 5203A. Under
section 5103A, VA is required to "make reasonable effort
(including private records) that the claimant adequately
identifies to the Secretary and authorizes the Secretary to
obtain." 38 U.S.C. § 5203A(b)(1). Mr. Wister submitted a list
of providers from which he asked the VA to obtain medical
records. R. at 1452. VA requested records from at least 10
providers (R. at 1457-1500), advised Mr. Wister as to release
forms still needed (R. at 1495, 1914-19, and advised him of
documents that had not been received and information still
needed (id.). Other than the providers, there appears to be no
other "relevant records" specifically identified by Mr. Wister
that VA did not attempt to obtain. As such the Court finds
that the VA fulfilled its duty to assist.
III. CONCLUSION
Accordingly, upon consideration of the record and the
briefs filed in this appeal, and the reasons stated therein, the
February 24, 2004, decision of the Board is AFFIRMED.
DATED SEPT 20 2005
Copies to:
Robert B. Wister
26256 Hickory Avenue
Hayward, CA 94544-3112
General Counsel
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
18
Not Published
UNITED STATES COURT OF APPEALS FOR VETERANS
CLAIMS
No. 04-0324
Robert B. Wister, Appellant
V.
R. James Nicholson
Secretary of Veterans Affairs, Appellee
JUDGEMENT
The Court has issued a decision in this case. The time
allowed for motions under rule 35 of the Court's Rules of
Practice and Procedure has expired
Under Rule 36 judgement is entered this date
DATED: OCT 12 2005
FOR THE COURT
NORMAN Y. HERRING
Clerk of the Court
By:s/Karen Meyer
Deputy Clerk
Copies to:
Robert B. Wister
26256 Hickory Avenue
Hayward, CA 94544
General Counsel (027)
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
19
United States Court of Appeals for Vererans Claims
DOCKET
Docket No: 04-0324
Robest B. Wister,
Secretary of Veterans Affairs,
Appellam,
Appelice.
Pro se. Appallant Appearances of Appelloc :
Robert B. Wister Kerry J. Loring, Esq.
262456 Hickory Avenue 202-439-4808
Hayward, CA 94344
US.
°
haw ;
;
i
H BVA Information ' Due {Explanation | Received — Disbursed :
| BVA File No.:
; BVA Decision Maid Dac:
18 SSR 724
2°24/2004
i3s200a «= CFRECVA =| so§.50
12R2008 «= FCC
$ 255
BEST AVAILABLE COPY
20
United States Court of Appeals for Veterans Claims
Robert B. Wiser Docket No: 04-0324
Date Filings and Proceedings
Action
| Date
3/2/2004 _| Notice of Appeal (STYGLA) (STYGLA)
93/2004 | Notice of Docksting for ff or declaration by 3/17/04, Bva
Dec by 4/2/04; Dr by 5/3/04 (M-3/3/2004) (TALLEJ)
3/4/2004 | Copy of BVA Decision (STYGLA) (M-3/4/2004)
(JSAYERS)
34/5/2004 | RECEIVED: Notice of Appeal (duplicate) (-3/5/2004)
(TALLEJ)
3/$/2004 | FILED:US Court of Appeats for Veterans Claims’ Filing Fee
- $50.00 (Not Assigned) (Not Assigned)
4/1/2004 | Appellant's petition to combine (M-3/22/2004) (COLVINB)
PTDYCLS
: 6/2004
4/1/2004 | Appellant's petition for extraordinary retiaf {M-3/22/2004)
(COLVINB)
PIDCLS
, 62004
4/15/2004 | Correspondence from appeliant (no date) (M-4/ 15/2004)
(BACONL) ;
4/29/2904 | Ord that the appeliant’s motion for extraordinary relief is
denied. (IVERSD) (BACONL)
5/3/2004 | Appearance of David L. Quinn, atty for the appellee (M-
5/3/2004) (BACONL)
5/3/2004 | Designation of Record (STYGLA) (M-8/3/2004)
(BACONL)
5/3/2004 | Notice to Counter-Designate Record within 35 days
{BACONL) _
$/40/2004 | Counter Designation of Record (M-S/10/2004) (BACONL)
5/21/2004 | Appeltee's mo to strike appellant's transmittion of the record
on appeal. (M-5/21/2004) (BACONL)
6/1/2004 | RECEIVED: Correspondence from appeliant dated S-31- -
2004 (M-6/22/2004) (DESHAP}
CLS
6'/2004 | RECEIVED: Correspondence from appellant (2 binders)
(DESHAP)
CLS
6/2604 | Appetiee's mo to ext time to file record the record on appeal
by July 9, 2004. (M-6/4/2004) (BACONL)
6’4/2004 | Appellee's motion for stay of proceedings (M-6/4/2004)
(DESHAP)
6/7/2004 | RECEIVED: Correspondence from appellant (military
packet form) dated 6-1-2004 (DESHAP)
* 6/22/2004
6/14/2004 | RECEIVED: Correspondence from appeiiant dated 6-8-
2004 (DESHAP)
CLS
: OF2242004
|
L
6/17/2004 | Clerk's ord granting the appellee's mo for ext to file the
record on appeal by July 9, 2004. {LBACON) (BACONL)
1 unserved
2 11 Bundles Record on Appeal !,800 + pages
21
United States Court of Appeals for Veterans Cleims
Robert B. Wister Doexet No: 04-0324
Date Filings and Proceedings Action | Date
6/22/2004 | Clerk's ord granting appeties's mo of 6-4-2004 to stay :
proceedings (DESHAP)
6'28'2004 | Mo of appellant for removal! of the case to the District Court. TDYCLS + 6/29/2004
(M-6/28/2004) (TALLEJ)
6’28/2004¢ | RECEIVED: Declaration of Financial Hardship (-6/28/2004)
(TALLEJ)
7/1/2004 | Ord that the appetiee’s mo to strike is granted: fur ord that
the appellant's mo for removal of the case to district court is
denied; fur ord that the pleading lodged by the appeltant on
§/10/04 is not accepted for filing; the Clerk will return the
pleading and accompanying documents to the appellant
with this order: fur ord that the appellant file a CDR or
statement by 8/2/04 (iVERSD) {MCCOYA)
8/30/2004 | npr of Kerry J. Loring, atty for appeliee replacing
he representative of record (M-8/30/2004) {MONTG?}}
9/1/2004 — on Appeal (M-0/1/2004) (WILLIR)
9/2/2003 _| Notice to File Brief within 60 days (WILLIR)
9°10'2004 | RECEIVED: Correspondence from appeiiant dated APS —;-9/29/2004
0$/07/04. (H-3/13/2004) (JSAYERS)
9/22/2004 | RECEIVED: Correspondence from appellant dated APS —|:-9/29/2004
9/20/04, (H-9/27/2004) (JSAYERS)
9/27/2004 | Correspondence from appellant dated 9/22/04 noting that BRE-T { 11/2/2004
Appellant has not filed a brief to this date. (H-9/29/2004)
(JSAYERS)
9/30/2004 | Notice of retumed papers to appellant. Correspondence |
dated 9/7/04 & 9/20/04 retumed as not contemplated by
the Rules of Court. (M-9/30/2004) (JSAYERS)
10/1/2004 | RECEIVED: Correspondence from appellant (-10/1/2004} VM | 10/1/2004
{TALLEJ)
107/204 | Ord that the appellant clarify the intent of his pleading withir] |
* 20 days after the date of this ord; should the sppellant fail
to provide clarification, the Crt will accept the pleading as ar
attempt to file an interlocutory appeal to the U.S. Court of
Appeats for the Federal Circuit {LANEJ) (GASKIA)
10/13/2004 | Appellant's response to the Court's order dated 10/7/04. (H CLS | 101572004
10/15/2004) (JSAYERS)
10/25/2004 | Ordered that the Court's Notice to Fite Brief issued on BRF-T 11/2/2004
9/2/04, remains in effect. (JFL) (JSAYERS)
11/2/2004 | Appellant's Brief (H- 11/4/2004) (JSAYERS) BRF.E _ 1/10/2004
1/7/2005 | Mo of appeliee to ext time until 1/25/05 to file brief (M-
1/7/2005) (TALLEJ)
22
United States Court of Appeals for Veterans Claims
Robert B. Wister Docket No: 04-0324
Date Filings and Proceedings | Action | Date
1/12/2005 | Clark's ord granting mo of 1/7405 until 725/05 (TALLEJ) | '
(TALLEY)
i
1/14/2005 | RECEIVED: Correspondence from appellant dated 1/7/05 i
{H-1/14/2005) (JSAYERS)
1/25/2005 | Appelise’s Brief (M-1/25/2005) (JSAYERS) BRE-RPY-T | 2/15/2005 _ |
2/7/2005 | Appetiant's Reply Brief (M-2/7/2005) (TALLEJ) TOES | 29/2005 |
3/14/2005 | Assigned to Judge Davis {TOBESS} !
9/20/2005 | Memo Decn that the BVA decn is affirmed (RDAVIS) TUDGMENT | 10/1 1/2005
{MEYERK)
10/12/2005 | Judgment (MEYERK) MANDATE | 12/12/2005
10/24/2005 | Appellant's Notice of Appeal to the USCA for the Federal !
Circuit (M-10/24/2005) (MEYERK)
10/27/2005 | Latter to appaliant in ref. CAFC filing fee (MEYERK)
11/28/2005 | FILEO:Federat Circuit Court of Appeals Filing Fee - $255.00
(Not Assigned) (Not Assigned)
11/30/2605 | Appeilant’s Notice of Appeal transmitted to USCA for the TRACK | 12/1/2006
Federal Circuit (MEYERK)
END OF DOCKET ¥1730/2005 8:35:24 AP
Dae |
eA Yeasts |
a
23
APPELLANT'S BRIEF
UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
No. 04-0324
ROBERT B. WISTER
Appellant
Vv.
SECRETARY OF VETERANS AFFAIRS
Anthony J. Principi
Coappellee
SECRETARY OF THE AIR FORCE
James G. Roche
Coappellee
Robert B. Wister
26256 Hickory Ave.
Hayward, CA 94544-3112
(510)783-3006 msg/screen
Pro Se
PREFACE TO - APPELLANT'S BRIEF 04-0324
This brief is submitted within the time of the rules of
the Court of Appeals for Veterans Claims [Rule 28,
November 1, 2004]. It is submitted in sole reference to the
Appellant's Record on Appeal submitted within the rules of
the Court of Appeals for Veterans Claims, thereby the only
valid Record on Appeal, mailed return receipt July 1, 2004
with official post office postmark. This was characterized
falsely as "6/7/RECEIVED: Correspondence from appellant
(military packet form) dated 6-1-2004 (DESHAP)."
24
Successively the aforementioned court has acted solely
on the behalf of the Appellee's counsel to such extent that all
actions by such counsel violating rules of the court: out of
date, falsely entered mailing [metered], falsified statements of
appellant agreement, felony content and redaction of medical
records [felony misprision], have been sanctioned by the
aforementioned court thereby demonstrating the cause
whereby Appellant applied for Removal to District Court for
both ongoing prejudice and lack of jurisdiction. USC 5 § 301
§ 706 § 2604.301 et seg.;§ 2608.102 et. seg. § 2635.101
§ 8912 (a)(b)(1)(13)(14)
The utter lack of jurisdiction is demonstrated by the
several claims involving interest due for the egregious period
of compensation denial of 50 years after application and the
fact of the aforementioned court NEVER having sanctioned
a single case, of compensation on record, for contraction of
chronic disease of a veteran while in service.
That demand for removal being denied 7/1/04,
Appellant applied for Writ of Centiori and the first service of
that writ upon the Court of Appeals for Veterans Claims was
characterized on 9/10/04 as Appellant's Brief. The writ was
later returned, after firm letter, 9/30/04 as "[x] Other Not
contemplated by Rules of the Court." This is the further
demonstration of asinine actions of a court run amok.
Appellant has been AGGRIEVED.
From the application to the United States Supreme
Court: It is ironical that an appeal must be filed from a court
25
of appeals to a court of appeals, such are the destructive
events under 28 U.S.C. § 1651(a). ERSPAMER v Derwinski
89-14. Appellant shall stand on that demonstration of the
abject lack of jurisdiction.
IN BRIEF 04-0324
INCEPTION OF CASE (STATEMENT OF ISSUES)
Upon initial application for disability November 1954
[R50, p227][R51, L form 452], the appellant was specifically
not advised of rights, alternatives or modes of redress [CFR
38 § 5101,§ 5120 ('86);§ 3.7 § 3.9 (d)(‘57)]. The diseased
condition of appellate with weight 154# [R51, C33 form 88s
and all records were available to VARO Phoenix, then
destroyed. 14 Dec, 1954], joint, lung and neurological
symptoms, being hospitalized for 9 months of that year [R13]
[R14], ill disposed appellate, with confused mental state, to
respond to sophisticated and contemptible denial process
[R18]. The mental stress exemplified in the subsequent Air
Force award for 10% [R55 Nov 8, 2000 VASRD code 9327,
00-0165][R26, ch 27][R24, p210][R25 p59-61] bears out this
condition. CFR 38 § 3.94 § 3.167('57).
38 CFR § 3.303(d)(1998),§ 3.89 § 3.245 (a)(b)('57).
"Disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected." 38 CFR § 3.310(a) (1998). H.R. Rep. No. 963,
100th Cong., 2d Sess. 13, reprinted in 1988 U.S. Code Cong.
& Admin. News 5782, 5795 "new and material", that
26
determination (but only that determination) would be subject
to review on appeal to this Court. If we find this
determination “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law" under 38 U.S.C. §
4061(a)(3)(A) (1988);CFR § 5120(b)(1)('86) § 3.201 (£)('57)...
This action is therefore a reopening of the November, 1954
disability claim, with "new and material evidence." Falzone
v Brown 8 Vet. App. 398, 95 Reopen claim on new and
material evidence. CFR 38 §3.9 (d).
Appellant was held at Letterman until outward
symptoms were reduced to an ear drainage [R14] [R16], such
periodic remission phases so well known as to demonstrate
secret diagnosis [R23][R24, p150] by Army Drs well versed
in the disease. psychiatric physician, Dr Sweeny, verbally
informed appellant he lwould be, “held till he accepted the
psycho discharge or died" [R14][R50, p205-10]. Parting
admonition to appellant was, "never donate blood." Appellant
then applied for disability [R50, p227][R51, L form 452,
p227] November, 1954 is therefore cited as commencement
of this case for purposes of designation of applicable law; 38
§ 3.400(2)(1)(11) 104th congress act placing first date of VA
disability claim at the first date of application;§ 5120
Effective date (b)(1) application within one year from date of
discharge(86); § 3.148 (1)('57). (Felton v. Brown,
7 Vet.App. 276, 283-86 (1994). (Johnson v Principi 03-1039
(E) change in law-most favorable will apply)[R51, C,K].
Thus commenced Murder By Calendar (MBC)
27
DESCRIPTION OF CASE BASIS (STATEMENT OF
CASE)
The disease, Woodsman's-Acrodermatitis Chronica
Atrophicans-Erythema Chroncium Migrans-Lyme Disease
[Borrelia burgdorferi], hereafter WEL, is prehistoric, before
man walked, as seen in [RS51l, sections A, p9;G,
p58]{A_ S,G S} [R27. p 106]. [R26, p28] Presence of the
disease is prevalent in the locality where onset occurred [R51,
B]{B S}{LYMIL}. Knowledge of the disease and it's
presence on all continents has been widespread since 1903
and was diagnosed as early as 1883 [R51, A, G]{A_S}[R26,
ch 1, p4, Fig 4-2]. A 1909 meeting at the Karolinska Institute
in Stockholm, Sweden was devoted to this disease [R20].
North American endemic disease was mentioned in two
papers with some tradition that the US Army Medical Corps
had a representative present. The military/VA have relied
upon the conversion of the NAME of this disease in 1974, to
reflect a local diagnosis in Lyme, CT, prior to etiologic
identification, to deny any possible infection before 1974.
[R22 p163] CFR 38 § 5109(a)('86).
Identification of the bacteria [Borrelia burgdorferi] in
1982 [R51, E][R26, ch 1][R22, p185] and the prior assigned
name led to the mendacity continuously recited by, VA
employed, assigned diagnostic Drs Relman and Locksley to
state, "you could not have had LYME DISEASE at that
time." This was also mediated by the redaction by the
military/VA of critical hospital records of febrile condition,
28
from November 6, 1952 through March 3, 1953 [R6]:
Jamuary '53 through September '53 [R7][R8]. Dr Relman is
a "molecular microbiologist" NOT as an infectious disease
clinical physician (postdoc). See Science 11 June 04 (1591).
His use is similar to hiring a novelist to write laws. Moore
v. Derwinski | Vet. App. 401, 38 USCA §§354 (b); PB VRR
§§3.102, 3.304 (d), 38 USCA § App-, 91; Murphy v.
Derwinski, 1 Vet.App. at 82; O'Hare v. Derwinski, |
Vet.App. 365, 367 (1991), CFR 38 §5109 (a) §1101('86) §
3.87 (1)G)('5S7).
Hospitalization at Kinston AB, Maxwell AFB, Mather
AFB and Letterman Army Hospital resulted in spinal taps due
to the meningitis/spondylitis (8019) demonstrated [R6] [R8]
[R13] [R14][R51, K_S (1D94314437)]. Each demonstrated
"protein" ({(R13]18 Jan '54-42.5). No tests were made to
identify this invasive presence. Bacteria had been seen and
was to be ignored since the cause was well known by the Drs
beginning at Maxwell AFB and was to be ignored by
administrative fiat. CFR 38 § 73 16('86) § 3.67 (1)(11)(2)§ 3.91
§ 3.142('S7).
A superb demonstration of the Hipocritic Oath?
(Austin v Brown, 6 Vet. App. 547(1994)) True in NAME
(Lyme) only. It is probable that Dr Karp's renunciation of
diagnosis was induced on that name basis, and missing SMRs
[R49, 4/17/00][R52,2.8-21/00]. It is assured that many
hundreds of thousands of veterans, from WWs I & II to date,
have been denied treatment and disability or died on that, on
29
similar false basis, while infected with WEL, AKA, XYZ war
syndrome.
It has been demonstrated, by filing of a recent case
involving the primary care Dr, that the VA Oakland
(undoubtedly not isolated) has participated in taiseiy
diagnosing bacterial disease as HIV/AIDS to socially
stigmatize veterans who would otherwise be elgible under
sections CFR 38§ 4.88b for compensation for service derived
disease. This is repetition of the false use of the Wassermann
test to shut the serviceman's mouth. This is not murder by
calendar, as so often is used, but direct intrinsic murder by
falsification of diagnoses and tests or destruction of medical
records. This process is well documented, within the body of
this case, as prevalent.
DETAIL OF ONSET OF DISEASE (ARGUMENT)
Onset of the disease in June 1952, Stallings AB
Kinston, NC, [R50, sec 1] was a classic symptom set for
Erythema Chroncium Migrans (ECM) [R50, 3, 4] [RS],
C(33)] as the disease was known to the medical community
at that time. Immediately following a class | flight medical,
July 15, 1952, [R4] symptoms began CFR § 3.05 (c)(d) §
3.89. This removed the appellant from flying duty as an
aviation cadet several times before late October. Flu
symptoms Hosp (July 18), common cold (29 July), UND (18
Aug), vertolate bandage rt thigh (18 Sep), Hot soaks to thigh
(19 Sept), Bartosis Media DNIF 300K p-cillin 1M
30
neosenphrine (3 Oct), back on flying status (6 Oct), painful
stiff wrist, neck & back [rheumatic fever 7932] (29 Oct)
Hosp, T98 admit to hospital, suspect influenza (6 Nov),[RSO,
1]{[R6][R51, C] (4121, 5060, 5801, 7932)]{C_S} reduction to
bed ridden status culminating in meningitis, missing SMRs
[see recreation R6]CFR 38 § 3.91('57). Transfer to Maxwell
AFB Hosp (14 Nov) [RS0, 1][R51, C] missing SMRs [see
recreation R8] italics are Capt. Hensel's MC, FS, (D'72) hand
written statements. This caused air evacuation to Maxwell
AFB Hospital, Alabama [recreation R7]. INFLUENZA IN
THE SUMMER? 5 MONTHS LONG? CFR 38 § 3.91('57)
The series of diagnoses such as Baritosis Media,
Hepatitis, Rheumatic Fever, Mononucleosis, Yellow Jaundice,
Arthritis...all common to the symptom set of WEL is in what
record remain available [(2)Ca/uza]. Many SMRs missing,
strangely strategic in nature covering the initial 116 days
hospitalization [R6][R7|[R8]. Appellant was returned to duty
February 1953 from Maxwell AFB Hospital (with
psychiatric clearance) [R51, C29] to graduate primary flight
training in class 53-G. Entry had been in class 53-E. The
vermin infested parade ground, many rodent holes, is well
illustrated in class book, Base Leg 53-E [R19]{ AFBSCO60}.
This is the most probable source of tick carriers and
attachment due to high grass illustrated in photos. Long term
infirmary records, if provided as demanded, will reveal that
the appellant was not the sole victim of this base maintenance
problem. CFR 38 § 3.78 § 3.142('5S7).
31
DETAIL OF FOLLOWING MILITARY MEDICAL
TREATMENT
Recurrence of symptoms, syncope while flying [R50,
2], at Greenville AFB, MS, [R9] led to the resignation of the
aviation cadet appellant after hospitalization, August 1953
[R10]{[R11][R12]. Appellant was returned to an earlier base
assignment at Mather AFB, Sacramento, CA. December 1953
sick call and then January, 1954 admission to base hospital
{R13] [R50, 3] ensued. Symptom set, a repeat of June 1952
symptom sequence serious enough, on January 18, '54, to
require a PRIVATE ROOM [R13] [RS51, J] {J_S} (missing
SMRs). Treatment with ACTH, cortisone was commenced
there, to continue at Letterman, this mistreatment was the
eventual basis for chronic seronegative disease [R50, 3][R51,
H]{H_S}. 38 U.S.C. § 1151 (1991); see Brown v. Gardner,
513 U.S. 115 (1994), CFR 38 § 7316('86) § 3.167('57).
Transfer was made to Letterman Army Hospital April
1954 [R14]. There is a continuing record of "rheumatoid
spondylitis"[R50, 3, p205][R51, C] lung and joint conditions,
removal of cyst from neck [R50, p203,9][R51, D]{D_$}((2)
Caluza)(missing SMRs [R14]), removal of wisdom teeth,
aggregated into "aberrant personality", "smokes a pipe and has
individualistic outlook" as a catch all, and recommended for
general discharge [R25, ch 5, p59](MBC). Appellant was
advised by Captain Sweeny (NP) that he would be held until,
"he agreed to psycho discharge or died." Appellant was also
advised at the same time to, "never donate blood"! (R50, 3,
?
- 32
p183-185j. Sweeny then crossed out administrative separation
and wrote in "DUTY" on form DD481-1 to prevent medical
separation DD481-1 Aug 19, '54 [R15]. Statements by Major
Michaels, "This airman is considered satisfactory with the
exception of those characteristics contained in the Medical
Board Proceedings and are not within our capabilities to
correct." Mather AFB[R50, p219]. Mental disturbance
characteristic of WEL [R16][R26, ch 27]. Airman A/1C Culp
(supervisor)," He often needed a shave but I believe this was
due to a rash or tender skin." Dermatology of WEL
identified. [R50, 3, p221][R26, ch 9][R24, p81] Talbert v.
Brown 7 Vet. App. 352, CFR 38 § 5108 § 7104 (b),('95)
"Clear and unmistakable error" first and subsequent decisions
on "cured" disease or remission. CFR 38 § 3.78 § 3.142('57),;
§ 3.167('57).
The Air Force board determined paradoxically that
appellant was "fit for duty” and yet required a discharge,
under general conditions [R50, p225]. Here is concrete
evidence that the board was well informed that further
episodes of disease symptoms were known to be soon evident.
"Smokes a pipe and has independent opinions" became the
asinine method of evading the chronic diseased condition
[R50, p183-5]
MANIFESTATIONS ON DISCHARGE
Discharge in October 1954 was immediately followed
33
by prostate infection treated by Dr Lentz of Phoenix [R51,
L]. This symptom had been previously experienced in
February at Maxwell AFB Hospital [R16] (missing SMRs).
Dr Lentz speculated that the infection had led to sterility. This
was followed by lung ('55) and joint ('56-'59) problems [R1
Dr Porter FAA flight medical, cleared '48, '51, refused '56].
Most notably in January 1956 and June 1956 spinal disc and
hip swelling, resulting in paraplegia [R18] [R33] [R37] [R41]
[R62]. These symptoms continued to the point of divorce
from appellant's first wife, from poverty and physical
disability [R33].
EDUCATION AND EMPLOYMENT DISRUPTION
These and the "mental fog" disorientation typical of
the disease [R41][R25, p28], continued through attempts to
return to college education, begun at Cal-Tech 1950 [R28]. A
full semester could not be accomplished, at U of A, without
symptomatic interruption. College was abandoned in 1959
attaining only junior year status. Subsequent employment
history includes only one period of employment exceeding 3
years, 9 year exception [R29][R39][51, R]{V42297A2}. This
came by accepting a reduced status and income. It became
necessary to write a clever resume to hide periods of illness
to achieve some employment. Periods of symptomatic
occurrence terminated most of these positions [R29]CFR 38
§ 3.168. The usual employment title was Design Engineer
which consisted of a draftsman with a title and no salary due
34
to lack of college degree. Hicks v. Principi 4 Vet. App. 2, 94
Substantial gainful employment must address patchwork
employment history. Snow v Derwinski 90-432; "the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal process has
been concluded... Section 5109A(b). CFR § 3.168('57).
These same factors caused the termination of two
more marriages, no issue. The induced mental state from
these occurrences can only be termed suicidal [R24, p59-61,
p75]. This culminated in the Federal Law requiring
employees to be provided medical insurance coverage in the
normal sites of appellant employment. Rates imposed due to
appellant medical history precluded further employment [R51,
R]. Hicks v. Principi 4 Vet. App. 2, 94 Id. employability
Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).
DISCOVERY OF CAUSATIVE DISEASE
First relevant information, that led appellant to
investigate WEL as a possible cause of recurrent symptoms,
came from, Scientific American, July 1987, p 78-83 [R23].
An article on "Lyme Disease" demonstrated the congruent set
of symptoms and an occupance map including the region
where the onset took place [R26, fig 4-2, p28][R50, 1][RS1,
B]{B_S}{LYMILT}. It was only after 9 years of study of the
available information and assembly of appellant's history that
appellant applied to VA for care in the belief that the disease
was service contracted. VA medical interview 1/12/95
35
[R29A]. Subsequent visits, 1/12/96 Lung symptoms, 1/25/96
history, 1/29/96 leg nerve, 1/30/96 PT evaluation, 2/6/96
Rink-history (21-4142), 5/22/96 cyst [R29A] [R35] [R62]
[R63] [R64]{96DAY}{P_S}[R33][R24, p195]. Dr Richard A.
Karp, MD, MPH, Infectious Disease, rendered a diagnosis of
WEL, as "Lyme Disease", beginning in 1952, after reading a
copy of book | [R50, p166][R51, p197]. This book has only
10% of the record of initial hospitalization due to VA/military
destruction of records [R51, C33]. This led to the filing of
form 9, filed with BVA 11/96: 3/16/98 BVA docket issued
#xx xxx xxx [R34] [R37] [R40] [R45]. 38 U.S.C. § 1151
(1991); Brown v. Gardner, 513 U.S. 115 (1994).
DISCUSSION OF PREVIOUS CVA APPEAL
In the matter of previous filings the following is the
detailed record of the occurrence that brought about that filing
with CVAC_ [R35][R36][R40][R43][R51, N]
{96DAY}{97DAY}{CVAPE]1}. This included daily records
of condition and a pericarditis episode typical of the disease.
[R51, M]
io "Attached is a bill that occurred as a result of failure
of diagnosis and resulting critical acute distress to the patient.
VA Oakland failed diagnosis on 2/13/97. Kaiser also failed in
diagnosis 2/20/97 [this bill 09352010]. VA Palo Alto VA
Hospital failed diagnosis 2/22/97. VA Oakland referred the
case to Ft. Miley 2/24/97 and the patient was transported by
ambulance that evening. Dr. Karen [Howard] diagnosed
36
pericarditis late that evening at Ft. Miley ER. 460 cc were
catheterized from the heart on 2/25/97. Patient was discharged
from Ft. Miley Hospital 3/7/97 [Dr. Chung].
On the morning of 2/20/97 both a FAX and a phone
contact were made with VAOMC. NO reply or advice and
direction were given in response. Obvious life threatening
medical situation drove the entry to Kaiser ER that day
consistent with previous and subsequent medical treatment.
Refusal of coverage by the VA beginning 4/14 is not
consistent with the case. The veteran is indigent since present
income is $896 per month SSA. Current VA care is based on
that. Future care will be based on claim xx xxx xxx, now
before the Board of Veterans Appeal. Lyme disease is the
basis of the claim and also the only probable cause of this
episode of pericarditis." **
Appellant was actually DEAD twice during this
occurrence and heartbeat restored by electric shock! [R35
Shinn (UCSF)] {CARD1}[R51, I][R26, p53, ch 11] This
occurrence resembles a Jarish-Herxheimer reaction, well
known in the literature [R29A]{96DAY}[{R26, p216]. The
material removed from the pericardial sack was tested for
virus but NOT BACTERIA [R35][R38], CFR 38 § 7316('86).
VA administrative persons directed failure to provide
indicated medical care and diagnosis. The disease (CFR 38§
4.88b Lyme Disease 6319) has become fully political [R25,
p74][RS6][R57][51, A].
This was the first recognized demonstration that VA
37
care was directed to shorten the life of appellant (MBC+).
Subsequently on admission to Ft, Miley at the direction of Dr
Karp 27 Aug, 2001, after earlier ER discharge there [R64]
{OIDAILY}, the cause of internal bleeding (=pint per day)
was found to be a colon cancer, by endoscopy 8/30/01.
Appellant was discharged while still bleeding, on Friday 31
August, 2001, and told to come back next Wednesday for
evaluation. Appellant entered civilian hospitalization 9/1/01
and was operated on 6 Sept, 2001 and again 17 Sept, 2001
leaving the hospital 18 Oct, 2001. Blood transfusion was
necessary. Whipp v Principi 3 Vet. App. 453, 94. This life
terminal symptom sequence, with VA medical incompetence,
was evaluated by the CAVC as "frivolous" [R36]. A third
death is "frivolous".
DISCUSSION OF VA TREATMENT AND DIAGNOSIS
Early within the period of VA medical care, 1996,
appellant was assigned Dr. Richard A. Karp, MD, MPH
(Internal Medicine, Infectious Diseases) as Primary Care
Physician. After 47 VA medical appointments, 11 of which
were direct with Dr Karp a clinical diagnosis of Lyme
Disease (WEL) was rendered [R33] [RSI, F]{APT}
{96DAY}. During that period lung, nerve, arthritic, spinal,
multiple cyst, neurology, dermatology, optic symptoms were
seen and treated [R29] [R32] [R51, P]{ERYTH}. 10/22/96
Erythromycin administered for pneumonia (available 1950)
(asthmatic WEL induced) produced dramatic reduction of a
38
major subset of symptoms {K_S}[R24, p150][R51, K, N].
424 citations were found at that time in MedLine medical
paper data base, commending Erythromycin as effective when
the ...cillin family had been used inappropriately in early
treatment (mutation). 6 years of prescription of Erythromycin
followed [R33][R51, N]{ERYTH}{CRITPAP}{CRITPA1}.
Several major symptoms were suppressed. Later a course of
Cefitraxione IV was administered with further notable
reduction of some symptoms [R40]{CETFR}. Response to
these drugs identified the disease beyond any clinical or
diagnostic test limits. Papers to this effect were furnished Dr
Karp as listed {99TREA} [R57].
Dr Karp had a copy of excerpted, partial, Air Force
medical records from June 1954 to discharge [R50]. His
library contained Lyme Disease, by P. K. Coyle, MD [ISBN
1-55664-365-9]. This book was loaned to appellant [R26].
Chapter 25, SERONEGATIVE LYME DISEASE, explained the lack
of positive results from the ELISA tests [R31, 4/24/96
Locksley diversion of PCR to ELISA]{LOCKSLEY}. Early
maltreatment with Penicillin, ACTH, Cortisone [RS0, 1]
[R51, H]{H_S}, plus long term mutation gave the reasons for
negative test results and conversion to chronic disease [RSO,
3] [R51, J]{J_S}. Later, papers found within the MedLine
data base cited a seronegative strain peculiar to the Mid
Atlantic states [R51, F]{F_S}[R40, #4 9/22/97]. A written
signed diagnosis was furnished, by Dr Karp, to the appellant
November 1996 based on the preponderance of clinical data
39
observed [R50, p266] [R51, p279] (Wallin v West 97-1023,
Sacks v West 97-1336; see also Libertine v. Brown,
9 Vet.App. 521, 523 (1996) (medical treatise evidence must
demonstrate connection between service incurrence and
present injury or condition). Appellant has maintained a daily
log of blood pressure/pulse and symptomatic condition
subsequent to the February 1997 cardiac occurrence [R51, M,
N, O]{DALY\}. This is available to the court, up to current
date, if any question should arise as to continuing chronic
manifestation. ((1)(3) Caluza) The VA has continuously used,
and applied, the full knowledge of the mental, physical and
motor effects of the disease, they claim does not exist, to
deny the claim for infection and induce conflicting statements
in repeated "Hearings."
Thereby the 2/24/04 BVA decision of denial of claims
is CUE! [R61] The two major salient reversals of, "Duty to
Assist" (Duty to Euthanasia) and diagnosis, demonstrate
ongoing felony criminal behavior, misprision. Refusal of
independent medical examination by appellant selection (BOR
Article VI)[R31] [R32] [R42] [R46]. ERSPAMER vy
Derwinski 89-14 "expeditiously as possible" ten years or more
for INDEPENDENT MEDICAL REVIEW.; Godfrey v. Brown, 7
Vet.App. 398, 406 (1995) (where service-connection claim is
based on continuity of symptomatology under 38 CFR 38
§ 3.303(b) (1994) § 3.63 (b) § 3.170('57), Bailey v.
Derwinski, 1 Vet.App. 441, 446-48 (1991). Marlow v Brown
5 Vet. App. 146, DIS F.3d 443, 93.
40
The VA has adamantly refused to acknowledge the Air
Force determination (00-0165-6/27/00) [R52] [R59] which
states in part:" RECOMMENDATION: The BCMR Medical
Consultant is of the opinion that, in order to correct a long
standing injustice, the records should be changed to reflect the
applicant was medically discharged with 10% disability
under VSRD code 9327, disability pay to be made
retroactive to his date of separation...S/Fredrick W.
Hornick, Col, USAF, MC, FS. (1)(2)(3) Caluza. The words,
"likelihood, plausibility and some degree of certainty", are
used in the discussion of the decision, with reference to WEL.
Need there be any further nexus? {CODESLYM} Service
connection may be established by demonstrating chronicity
under 38 C.F.R. § 3.303(b) Cook v. Brown 4 Vet. App. 231,
93 Unreasonableness of time lapse between manifestation of
chronic disease and definite diagnosis is strength of evidence
establishing evidence of disease manifestations and chronic
disease. Is it held by the VA/Military that "smoking a pipe
and having independent opinions" absolutely precludes the
possibility that the individual was diseased? It is amazing how
the VA relies on the well known effects of the disease, that
they claim does not exist, to preclude the evidence for
diagnosis of the disease.
DISCUSSION OF VA BEHAVIOR
Where are the VA letters, that were required, to
inform the denied appallent of the 1957 congressional
41
modifications to CFR 38 which changed the entire character
and credibility of his application for disability? Duty to assist?
CFR 38 § 3.7 (57') § 3.159 (98).
The "Record on Appeal" demonstrates the following
VA mandated mendacity and intentional incitation of extreme
reaction, with unsigned letters, directed by the internal
practices of the VA for the destruction of the appellant and
others so situated. Multiple critical SMRs were and are
strangely missing that were required to exist for the service
position of the appellant such as Flight Physicals required for
pilot status [R1],[R2] [R9] [R10] [R33] [R51, BVA] (2) USC
5§ 522 FOIA demands ignored (suddenly they appeared in the
too late filing of appellee's, so called, RoA) 38 CFR §
14.560('98).
Critical periods of hospitalization where meningitis
occurred are stripped from the SMRs (since recreated for this
case) [R6] [R7] [R8], CFR 38 § 20.611 38 § 0.735-3
Extension of the right to apply punitive compensation for
continuing dilatory action by the VA, refusing to act in
relevant manner. USC 5 § 301 May not withhold
information or limit availability of records (7543): Tort
USC 5 § 552 exhaust remedies USCA (154) West Freedom
of information act [R29A] [R34] [R33] [R37] [R38] [R40]
[R41] [R42] [R43] [R44] [R45] [R46] [R51, A, B, D, E, F,
G, H, I, J, M, N] [R52]. Action by the local office in
cooperation with the DAV representative attempted to
convince the appellant that there was no case (MBC)[R35].
42
The DAV representative had been presented with
Book 1, Wister's case for Lyme Diagnosis 4/14/96[R50]. [R33
11/96 DAV discharge letter] This volume was a copy of that
in the hands of Dr Karp. A copy was later transmitted with
other material to the BVA and the US Air Force Board for
Military Record Correction, April 16, 2000 BVA transmission
of books 1 (266p) [R50] & 2 (279p) [R51] of military and
civil records + Coping with Lyme Disease ISBN 0-8050-
4775-1[R25] + Lyme Disease ISBN 0-8018-5245-5[R26]. The
local office, Oakland, then proceeded to demand a set of 21-
4142 medical release papers for the second time by that office
(an earlier set had been furnished Oakland Outpatient Clinic,
1/25/96)[R30](MBC). Each two years another set of 21-4142
papers was demanded so another futile 2 years could be
expended writing dead Drs (MBC). Review of appellant's
Record on Appeal will demonstrate the abusive use of inciting
letters that would allow the local office to delay from 30-90
days, any reply (MBC) [R23] [R30] [R31] [R32] [R33]
[R37]. 28 U.S.C. § 1651(a). ERSPAMER v Derwinski 89-14
(decade of delay...acting upon the claims submitted by
petitioner and her husband has been unreasonable) (success
MBC).
In particular, F.M. Hoffschneider with unsigned letters
alleging such as, “congenital spinal disease” [R32] [R43]
[RS51, BVA], fed the bureaucratic mendacity with the intent
to Murder By Calendar [R47]. Civil aviation medical
examinations '48-'S6 refute all prior conditions falsely stated
43
along with induction physical [R1] [R2]. Selective reading of
letters and form 9 continued throughout. Consistent with
general rules of agency in that principals are liable for the
misdeeds (felony) committed by their agents when the agents
act with apparent authority, appellant cites GLEASON v.
SEABOARD AIR LINE R. CO., 278 U.S. 349, 49 S.Ct. 161,
73 L.Ed 415 (1929). F. M. H. further stated at another time
that appellant, "was not an expert in Lyme Disease." This
case shall prove that false. Espiritu v. Derwinski, 2 Vet.App.
492, 494-95 (1992). This ongoing well defined process ran it's
full course, then the case was transferred to Cleveland, Ohio,
so the process could start ab into as if the date had been
(3/21/03) for filing a form 9 [R48] [R59] [R60] . (Pelegrini
v Principi, 01-944 et. seq.). Apparently done on the excuse of
VCAA passage to ignore, and destroy, material of previous
"well grounded case,...expedited case." [R49, 2/9/00 WGC]
Epps, 126 F.3d at 1469 duty to assist in "well grounded
case". This is not "duty to assist" (duty to euthanasia), it is
compulsion to murder! Another complete set of futile 21-4142
medical release papers was demanded so another 2 years
could be consumed in calendar murder writing dead Drs
[R60](MBC): Appellant should hope that the VA produces the
reply letter for the court [R60]. IT IS EMPHATIC. Hilkert v
West 12 Vet.App. 145, 149-50 (1999) "stealth consideration"
...not hide their reasons and reasoning under the table. This
constitutes adamant adversarial action contrary to 38 U. S. C.
§ 5107(a); Den/Holland v. Brown 6 Vet. App. 443, 96, Epps,
44
126 F.3d at 1469.
Letters to Dr Karp and the VA Inspector General on
the AF determination of medical discharge with 10%
disability were summarily ignored [R59] [R60]
The occurrence of only two cases within the CAVC
data base (both denied) which cite the term "Lyme Disease"
falls within the definition cited by Sam Clemmons, "there are
liars, damned liars and statisticians." [R52]{LYMILT} Since
the CDC annually cites approximately 6,300 cases ('00) of the
disease per year under draconian rules which eliminate 80%
of true cases, cited many times in the medical treatises, this
means that some 30,000+ cases occur per year within the US.
Since hunters, fishermen, woodsmen, children and hikers are
the most susceptible and their habitat is analogous to military
training, the results fulfill the case. Several hundred treatises
within the MedLine data base begin with such phrase as,
"This pathogen now accounts for 91% of vector-borne
infections in the United States, and from a public health
viewpoint is one of our major emerging infectious disorders."
[R51, J]{J_S, p8}. Note the congruent symptom list seen at
CFR 38 § 3.317(5)(b). This thus becomes a ‘Leading Case.'
Prosecution of Drs Orens and Joseph J. Burrascano, Jr
(infected) before the New York Medical Board for "excessive
diagnosis of Lyme Disease", with removal of license to
practice, further notified the medical community that
diagnosis, reporting and treatment would not be tolerated by
a SECRET accuser. Asher Fensterheim, Esq., 555 White
45
Plains Rd., Tarrytown, NY 10591, Atty for defense, Orens
[R56]. Also see New York State OPMC Reform Bill A4274b.
The term conspiracy, fits well.
This sequence bore out the insight which caused claim
6 in the initial form 9 filing [R30] [R34]. 6. 38 § 20.611 38
§ 0.735-3 Extension of the right to apply punitive
compensation for continuing dilatory action by the VA,
refusing to act in relevant manner. It is appellant's belief
that a case can be made for the actions of the VA and it's
representatives to be held for treason against the body of
citizen soldiers and consequently the nation, in time of war.
Alternately a few saints could be created in the VA for the
miracle of never allowing a, CFR 38§ 4.88b Lyme Disease
6319, case to occur. This case begs the nice word,
EGREGIOUS. See, e.g., Noyd v. Bond, 395 U.S. 683, 695 n.7,
89 S.Ct. 1876, 1883, 23 L.Ed.2d 631 (1969) (United States
Court of Military Appeals); United States v. Frischholz, 16
C.M.A. 150, 36 C.M.R. 306 (1966)
The sum of VA behavior is a well informed
psychological process. Withholding or destroying records [R6]}
[R7]} [R8] [R17] [R18]; continuous violation, with impunity,
of all sections of CFR 38...; infinite delay with repetitious
recreations of medical, trauma and other stress centric records
[R5] [R6] [R8] [R13] [R14] [R15] [R29]; fraudulent
statements in obvious total opposition to the case facts [R62]
[R63] [R64]; demeaning reversals of case supporting evidence
through coercion or intimidation [R31] [R33] [R37] [R38]
46
[R39] [R46] [R49] [R52]; violation of court rules in order to
fave pulunmiur wf al’ these affiis (6 FO Txttanivir..}
are full evidence of the felonious behavior, with intent,
ingrained within the VA. This is only described as a VA
extension of the actions of North Korea and it's allies, during
the Korean Police Action, known then as BRAIN
WASHING. A review of cases demonstrates that this is THE
prevalent mode of operation by the VA.
It has become apparent that the CAVC is dominated
and directed by the VA legal corps. When a Record on
Appeal fully compiled, mailed within rule time (6/1/04) and
using postal certification is characterized as "6/7/RECEIVED:
Correspondence from appellant (military packet form) dated
6-1-2004 (DESHAP)" the compliance of the CVAC with it's
rules and norms of judicial performance was questioned in
filing United States Supreme Court Appeal for Wnt of
Centiorari, September 20, 2004 ef seq.
SUMMARY (CONCLUSION)
When it waddles like a duck, quacks like a duck, flies
like a duck and lays an egg, it is not the dog the VA claims
it to be. CFR 38 § 5107(b) § 3.317(5)(b).
Foregoing recitation of history, medical records, USAF
determination and treatises presentation far exceeds
preponderance of evidence and assures, beyond shadow of
doubt, that CFR 38§ 4.88b Lyme Disease 631° 100%
describes this case, from inception to date. Lendenmann v.
47
Principi 3 Vet. App. 345, 92 Where no code exists, VA must
evaluate under codes for analogous disorders. CFR 38§ 3.142
§ 3.78
VA actions within this case both at the administrative
and medical levels have been a complete inversion of the
intent of congress in establishing the VA and the Court of
Appeals for Veterans Claims. CFR 38 § 3.317(5)(b)('98) must
be reenacted on‘a historically broad basis.
SLAVERY
That the cost of onerous slavery is high is exemplified
in the recruiting, head-hunting, costs variously stated as $35-
50,000 per victim of the DoD. Actions similar to this case
and spread across this nation have informed educated
individuals to the point of induction, of degraded to military
service, only those of low moral or mental capacity or
education, with little other choice. Military service has
become a holding pen for the lowest levels of society through
onerous actions against those who would be patriots. Once
more there will have to be conscription in a "FREE" society.
Ongoing scandalous activities at the various military
academies demonstrates that the problem pervades all ranks.
During appellant's period of service, a conscription mediated
period, the current recruitment costs would have paid a full
four years enlistment plus bonus. This is not solely inflation.
Institutional insanity is costly. The historic caution is the
battle of Lepanto, October 1571, where the unfettered, free
48
oarsmen, of the west added decisive power against the
chained galley slaves of the Turk. The lesson has not been
learned. The veteran is murdered to reduce the cost of war.
RELIEF SOUGHT
Appellant asks the court to award the following quoted
from form 9 filed with VA 11/96, with the addition of time
financial evaluation. [not within the purview of the court or
BVA/VA] This is the requirement that the case be held only
in Federal District Courts, Rule 38, as demanded 6/24/04.
Appellant claim:
1. CFR 38 § 3.17 § 3.340(3) § 3.488(b) § 6319 §
3.400(2){i)(ii), Compensation for 100% disability from first
date of application November 1955 to present and continuing.
$1,300,000 est as of 8/01/96, with interest, equal to T-30 year
bonds at the then current rate, from date due of each monthly
payment. [AVOIDED COST BY OVERT CRIMINAL ACT] see also
P.A. Bergner & Co. v. Bank One, 140 F.3d 1111, 1123 (7th
Cir. 1998) ("[P]reyudgment interest should not be thought of
as a windfall in any event; it is simply an ingredient of full
compensation that corrects judgments for the time value of
money."); /n re Milwaukee Cheese Wis., Inc., 112 F.3d 845,
849 (7th Cir. 1997) ("Compensation deferred is compensaiion
reduced by the time value of money."); cf JBM v. United
States, 201 F.3d 1367, 1374-75 (Fed.Cir. 2000). ("Congress
has waived sovereign immunity in both the tax code and the
49
customs laws to permit interest to be paid on certain refunds
to allow for the time value of money when the Government
has had the use for a period of time of money to which it is
not lawfully entitled.") [Sandstrom v Principi, 99-1440]
TRAC, 750 F.2d at 80.
Claims for benefits due to military service clearly
implicate human health and welfare concerns as distinguished
from economic regulation. In consideration of the "nature and
extent of the interests prejudiced by delay," we must reject
the suggestion made by counsel for respondent at argument
that any and all prejudice resulting from the decade's delay
would be offset by retroactive payment should the BVA
ultimately determine that benefits were warranted. Payment
of benefits ten years after they were due could never serve as
full compensation.
2. CFR 38 § 3.340(3)(i)(ii) Compensation for loss of
education due to ongoing episodes of WEL symptoms.
$500,000 as of 8/01/96
3. CFR 38 § 3.800(a) § 3.400(b)(i) Compensation for
continuing medical expenses as a civilian without VA medical
assistance 1955-96. $175,000 as of 8/01/96, subsequent $5600
and growing.
4 CFR 38 §3.340(2) Compensation for loss of income
during and ensuing from medical episodes with exclusion
from medical insurance coverage and resulting exclusion from
employment and retirement plans. $1,000,000
5. CFR 38 § 0.735-3,§ 3.340(3)(b) Compensation for
50
ongoing and continuing refusal of the Veterans
Administration to promptly evaluate and adjudicate the
disability application with evaluation of ongoing medical
episodes indicating chronic disease, 1955-present. $1,000,000
[or jury to determine]
6. CFR 38 § 20.611 § 0. 138-11(by'98) Extension of
the right to apply punitive compensation for continuing
dilatory action by the VA, refusing to act in relevant
manner. $5,000,000 actual + [or punitive by jury]
Without this settlement condition, the accrued interest
on the avoided disability payments will cover lesser payment
with profit left to the abusive and criminal tactics
demonstrated in this and similar cases. Abuse will be
rewarded, rapine and murder of the veteran, citizen, will
continue. This requires trial by jury under Federal rule 38.
Failure to act under All Writs Act, 28 U.S.C. § 1651(a),
places the Court of Veterans Appeals, en banc, as accessory
before the fact of MURDER. Hence the afore will REPEAT
& REPEAT & REPEAT... .
APPLICABLE LAW
Appellant cites laws within the period from
commencement of the case, 1954 to date of appeal, the run of
the case, to the date of, Court of Appeals for Veterans
Claims, appeal. Further this case falls under: Appellant also
cites case law decisions within that same period in support of
contentions. In particular: 5 USAC § 301 May not withhold
51
information or limit availability of records (7543); 515 tort;
USC 5 § 552 FOIA exhaust remedies USCA (154) West,
Freedom of information act. Moore v. Derwinski | Vet. App.
401, 38 USCA §§354 (b), 5107,; PB VRR §§3.102, 3.304
(d), 38 USCA § App-, 91 Destroyed records create
presumption of service connection.: Mattson v. Derwinski 2
Vet. App. 643, 38USCA§5107 (a), 92 Absence of medical
records places burden on BVA (141 Heightened). In all
events the case is required to be published! See copyright.
This court (Court of Appeals for Veterans Claims)
does not have, by several decisions seen in the data base,
ANY jurisdiction or competence on any of the six elements
of this claim. Therefore under writs, mandamus (FC rule 38)
is required, if not so done, then centiorari is necessary and
applied. Constitutional questions of civil rights and
constitutional maintenance of a military are involved.
PRO SE JUSTIFICATION
Appellant has determined, from conversations with
various counsel applying for representative status in this case,
that the VA has assigned several to insert themselves, falsely,
to divert and destroy this appeal. Others cannot honestly
pursue the case without being disbarred from CVAC practice.
The case is therefore maintained on Pro Se basis and will
continue so. Disease never having been awarded a positive
decision the EAJ laws have no effect. No lawyer can be
expected to operate in a blind alley.
52
NB: Any remand to the VA will result in further appeal to
remove to Federal Circuit Court for trial by jury under Rule
38 of the Federal Courts for obvious reasons of time and age.
Appellant does not have another 30 days, much less 50
years more to squander. ERSPAMER Id. 28 U.S.C. §
1651(a). Note the following successes in support of the MBC
statement: Murphy 90-107; Johnson 92-1227; Austin 93-130;
Marciniak 95-0465; Hilkert 96-208; Cooper 97-609; Moore
97-787, Davis 97-1057; Sacks 97-1336; Brown 97-1674;
Teten 98-1244; Hasty 98-1511; Woodson 98-1595; Dobbin
99-1461; Taylor 03-1278(E); Calloway 03-1980;...446 total
DIC on data base. [DIC=Died In Court]. The ultimate success
is seen in Morton v. Gober, No. 99-7191. The VA is
demonstrated to be more deadly than any foreign enemy, for
PROFIT. See RICO statutes.
Codicil:
Those items shown {thus} are submitted in electronic form as
3Y%e" disk, WP6 format as seen in vetapp.org, for the
convenience of the court. They, are as noted, also in paper
form as submitted to the VA/BVA/AF AND as listed in
Record on Appeal 7/1/04.
Codicil #2:
Since the Board of Veterans Appeals is not constituted as a
Federal Court by Congress, the Court of Appeals for Veterans
constitutes a Federal District Court under all federal statutes
53
and congressional directives. Thus the "All writs statutes"
may be interpreted in a far different manner than is now
functional. Jurisdiction is "NOT limited to review but may be
definitive and proscriptive." If something under the law is
NOT what is seems to be, then it may not be operated, under
the law, as what it is purported to be.
Respectfully submitted
Robert B. Wister
26256 Hickory Ave
Hayward, CA 94544
24
BOARD OF VETERANS' APPEALS
VA Department of Veterans Affairs
SYMBOL Washington, DC 20420
IN THE APPEAL OF C18 558 714
ROBERT B. WISTER )
)
DOCKET NO. 97-10 109A )
) DATE FEB
) 24 2004
On appeal from the
Department of Veterans Affairs Regional Office in
Oakland, California
THE ISSUE A
Entitlement to service connection for Lyme disease.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
IN THE APPEAL OF C18 558 714
ROBERT B. WISTER
INTRODUCTION
The veteran had active service from June 1951 to October
1954.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a decision of November 1996 by
Department of Veterans Affairs (VA) regional office (RO) in
Oakland, California. The United States Court of Appeals for
Veterans Claims (Court) denied petitions by the veteran for
extraordinary relief in October and November 1997 after he
accused the VA and his former representative organization of
colluding to suppress evidence. :
35
In February 2000, the Board remanded the claims for
additional development. The requested development has since
been completed, and the case is now ready for appellate
review.
FINDINGS OF FACT
1. All evidence necessary for review of the issue on appeal
has been obtained, and the VA has satisfied the duty to notify
the veteran of law and regulations applicable to the claim, the
evidence necessary to substantiate the claim, and what
evidence was to be provided by the veteran and what
evidence the VA would attempt to obtain on his behalf.
2. The preponderance of the evidence shows that the veteran
does not currently have Lyme disease.
CONCLUSION OF LAW
Lyme disease not incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303
(2003).
REASONS AND BASES FOR FINDINGS AND
CONCLUSION
1. Duty to Assist
During the pendency of this appeal, on November 9, 2000,
the President signed into law the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.2096
(2000). The Act is applicable to all claims filed on or after
the of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. The new law
eliminates the concept of a well-grounded claim, and
redefines the obligations of the VA with respect to the duty
to notify the appellant and his representative, if represented,
of any information and evidence needed to substantiate the
56
claim. 38 U.S.C.A. §§ 5102 and 5103. Second, the VA has a
duty to assist the appellant in obtaining evidence necessary to
substantiate the claim. 38 U.S.C.A. § 5103A.
The VA has promulgated revised regulations to implement
these changes to the law. See 66 Fed. Reg. 45,620 (Aug 29,
2001)(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a)). The intended effect of the new
regulations is to establish clear guidelines consistent with the
intent of Congress regarding the timing and scope of
assistance VA will provide to a claimant who files a
substantially complete application for VA benefits, or who
attempts to reopen a previously denied claim.
The Court's decision in Pelegrini v. Principi, No.01-944 (U.S.
Vet. App. Jan 13, 2004) held, in part, that VCAA notice
consistent with 38 U.S.C. § 5103(a) and 38 § CFR. §
3.159(b) must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim, (2) inform the claimant about the information and
evidence that the VA will seek to provide, (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that pertains
to the claim, or something to the effect that the claimant
should "give us everything you've got pertaining to your
claim(s)." This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
§3.159(b)(1).
In this case, although the VCAA notice letter that was
provided to the appellant does not contain the “fourth
element," the Board finds that the appellant-was otherwise
fully notified of the need to give the VA any evidence
pertaining to his claim. The Board finds that the VA's duties
o7
under the law and revised implementing regulations have been
fulfilled. The veteran was provided adequate notice as to the
evidence needed to substantiate his claims. The Board
concludes the discussions in the rating decision, the statement
of the case (SOC), the supplemental statements of the case
(SSOC) and letters sent to the veteran informed him of the
information and’evidence needed to substantiate the claim and
complied with the VA's notification requirements. The
documents, such as a letter dated May 2003 and the statement
of the case issued in August 2003, provided the veteran with
a specific explanation of the type of evidence necessary to
substantiate his claim, as well as and explanation of what
evidence was to be provided by him and what evidence the
VA would attempt to obtain on his behalf. See generally
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO
also supplied the veteran with applicable regulations in the
SOC and SSOCs. The basic elements for establishing service
connection have remained unchanged despite the change in
the law with respect to duty to assist and notification
requirements. The SSOC of August 2003 addressed the
provisions of the VCAA. The VA has no outstanding duty to
inform the appellant that any additional information or
evidence is needed. All the VCAA requires is that the duty to
notify is satisfied, and that claimants are given the
opportunity to submit information and evidence in support of
their claims. Once this has been accomplished, all due process
concerns have been satisfied. See Bernard v. Brown, 4 Vet.
App. 384(1993).; Sutton v. Brown, 9 Vet. App. 553 (1996);
see also 38 C.F.R. § 20.1102 (harmless error). In this case,
because each of the four content requirements of VCAA
notice has been fully satisfied, any error in not providing a
single notice to the appellant covering all content
requirements is harmless error.
The Court decision in Pelegrini v. Principi, No. 01-944 (US.
58
Vet. App. Jan 13, 2004) also held, in part, that the VCAA
notice, as required by 38 U.S.C. § 5103(a), must be provided
to a claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits. In this
case, the initial AOJ was made prior to November 9, 2000,
the date the VCAA was enacted. VA believes that the
Pelegrini decision is incorrect as it applies to cases where the
initial AOJ decision was made prior to enactment of the
VCAA and is pursuing further judicial review on this matter.
However, assuming solely for the sake of argument and
without conceding the correctness of Pelegrini, the Board
finds that any defect with respect to the timing of the VCAA
notice requirement in this case was harmless error for the
reasons below.
In the present case, a substantially complete application for
service connection for Lyme disease was received in July
1996. Thereafter, in a rating decision dated in November
1996 that issue was denied. Only after that action was
promulgated did the AOJ in May 2003, provide notice to the
claimant regarding what information and evidence is needed
to substantiate the claim, as well as what information and
evidence must be submitted by the claimant, what information
and evidence will be obtained by the VA, and the need for
the claimant to submit any evidence in his possession that
pertains to the claim.
Because the VCAA notice in this case was not provided to
the appellant prior to the initial AOJ adjudication denying the
claim, the timing of the notice does not comply with the
express requirements of the law as found by the Court in
Pelegrini. While the Court did not address whether, and if so,
the Secretary can properly cure a defect of the timing of the
notice, it did leave open the possibility that a notice error of
this kind may be prejudicial to a claimant
59
The Court in Pelegrini found, on the one hand, that the
failure to provide the notice until after the claimant has
already received an initial unfavorable AOJ determination, i.e.
a denial of the claim, would largely nullify the propose of
that notice and, as such prejudice the claimant by forcing him
or her to overcome an adverse decision, as well as
substantially impair the orderly development claims
development and adjudication. Pelegrini, No. 01-944, slip op.
at 13. On the other hand, the Court acknowledged that the
Secretary could show that the lack of a pre-AOJ decision
notice was not prejudicial to the appellant, /d.("The Secretary
has failed to demonstrate that, in this case, lack of such a pro-
AOJ-decision notice was not prejudicial to the appellant.")
In light of these two findings on prejudice, the Board finds
that the Court in Pelegrini has left open the possibility of a
notice error being found to be nonprejudicial to a claimant.
To find otherwise would require the Board to remand every
case for the purpose of having the AOJ provide a pre-initial
adjudication notice. The only way the AOJ could provide
such a notice, would be to vacate all prior adjudications, as
well as to nullify the notice of disagreement and substantive
appeal that were filed by the appellant to perfect the appeal
to the Board. This would be an absurd result, and as such it
is not a reasonable construction of 5103(a). There is no basis
for concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication.
Moreover, while strictly following the express holding in
Pelegrini would require the entire rating process to be
reinitiated when the notice was not provided prior to the first
agency adjudication, this could not have been the intention of
the Court, otherwise it would not have taken "due account of
the rule of prejudicial error" in reviewing the Board's
60
decision. See 38 U.S.C. § 7261(b)(2). see also Conway v.
Principi, No. 03-772 (Fed. Cir. Jan 7, 2004)(There is no
explicit exemption for the notice requirement contained in 38
U.S.C. § 5103(a) from the general statutory command set
forth in section 7261(b)(2) that the Veterans Claims Court
shall "take due account of the rule of prejudicial error.")
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on 4 de novo basis
without providing any deference to the AOJ's decision. As
provided by 38 U.S.C.§ 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed"by the Board is subsumed by the appellate decision
and becomes the single and sole decision of the Secretary in
the matter under consideration. See 38 C.F.R. § 20.1104.
There is simply no "adverse determination," as discussed by
the Court in Pelegrini, No. 01-994, slip op. at 13. Similarly,
a claimant is not compelled under 38 U.S.C. § 5108 to
proffer new and material evidence simply because an AOJ
decision is appealed to the Board. Rather, it is only after a
decision of either the AOJ or the Board becomes final that a
claimant has to surmount the reopening hurdle.
All the VCAA requires is that the duty to notify is satisfied,
and that claimants be given the opportunity to suomit
information and evidence in support of their claims. Once this
has been accomplished, all due process concerns have been
satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993):
61
Sutton v. Brown, 9 Vet. App. 553 (1996), see also 38 C.F.R.
§ 20.1102 (harmless error)
Here, the Board finds that any defect with respect to the
tuming of the VCAA notice requirement was harmless error.
While the notice provided to the appellant in May 2003 was
not given prior to the first AOJ adjudication of the claim, the
notice was provided by the AOJ prior to the transfer and
certification of the appellant's to the Board, and the content
of the notice fully complied with the requirements of 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice
was provided, the case was readjudicated and a Supplemental
Statement of the Case was provided to the appellant. The
claimant has been provided with every opportunity to submit
evidence in support of his or her claim, and the respond to
VA notices. Therefore, notwithstanding Pelegrini, to decide
the appeal would not be prejudicial error to the claimant.
The Board also finds that all relevant facts have been properly
developed to the extent possible. The claims file contains the
veteran's service medical records. His available post service
medical records have also been obtained. The veteran did not
respond to a recent letter requesting his assistance in
obtaining any additional outstanding records. He has been
afforded VA examinations, and appropriate opinions have
been obtained. The veteran testified at a regional office
hearing. He was scheduled for a hearing before a Member of
the Board in September 1999 but failed toappear. Although
the veteran has reported that he did not appear because his
poor eyesight prevented him from reading the notification of
the hearing date, the Board notes that a letter dated in August
1999 the veteran specifically indicated that he would attend
the hearing on September 17, 1999. Thus, he clearly had
knowledge of the hearing date and he did not present any
valid reason for missing the hearing. For the foregoing
reasons, the Board concludes that all reasonable efforts were
62
made by the VA to obtain evidence necessary to substantiate
the veteran's claim. Therefore, no further assistance to the
veteran with the development of the evidence is required.
In the circumstance of this case, a remand to have the RO
take additional action under the new Act and implementing
regulations would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546(1991)(strict adherence to
requirements of the law does not dictate an unquestioning
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burden on
the VA with no benefit flowing to the veteran); Sabonis v.
Brown, 6 Vet. App. 426, 430(1994)(remands which would
only result in unnecessarily imposing additional burdens on
the VA with no benefit to the veteran are to be avoided). The
VA has satisfied its obligation to notify and assist the veteran
in this case. Further development and further expending to the
VA's resources 1s not warranted. Taking these factors into
consideration, there is no prejudice to the veteran in
proceeding to consider the claim on the merits. See Bernard
v. Brown, 4 Vet. App. 384, 394 (1993).
II. Laws and Regulations
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See 38
U.S.C.A. §§ 1110, 1131. Service connection connotes many
factors bur basically it means that the facts, shown by the
evidence, establish that a particular injury or disease resulting
in disability was incurred coincident with service in the
Armed Forces, or if preexisting such service, was aggravated
therein. This may be accomplished by affirmatively showing
inception or aggravation during service of through application
63
of statutory presumptions. Each disabling condition shown by
a veteran's service records, or for which he seeks a service
connection must be considered on the basis of places, types
and circumstances of his service as shown by service records,
the official history of each organization in which he served,
his medical records and the pertinent medical and lay
evidence. Determinations as to service connection will be
based on review of the entire evidence of record, with the due
consideration to the policy of the VA to administer the law
under a broad and liberal interpretation consistent with the
facts in each individual case. 38 C.F.R. § 3.303(a). With
chronic disease shown in service (or within the presumptive
period under Sec. 3.307) so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent causes.
This rule does not mean that any manifestation of joint pain,
any abnormality of heart action or heart sounds, any urinary
findings of casts, or cough, in service will permit service
connection of arthritis, disease of the heart, nephritis, or
pulmonary disease, first shown as a clear-cut clinical entity,
at some later date. For the showing of chronic disease in
service there is a required combinations of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "Chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis, ect.),
there is no requirement of evidentiary showing of continuity.
Continuity of symptomology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When chronicity
in service is not adequately supported, then a showing of
continuity after discharge is required to support the claim. 38
64
CFR. § 3.303(B).
Service connection may be granted for any disease diagnosed
after discharge, when all of the evidence, including that
pertinent to service, establishes that the disease was incurred
in service. Presumptive periods are not intended to limit
service connection to diseases so diagnosed when the
evidence warrants direct service connection. The presumptive
provisions of the statute and VA regulations implerienting
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. 38 C.F.R. § 3.303(d).
III. Evidence and Analysis
The veteran testified in support of his claim for service
connection for Lyme disease during a hearing held at the RO
in March 1998. He stated that he was being treated for Lyme
disease which had first appeared during service. He stated that
he was the oldest living diagnosed case of Lyme in the world.
However after considering all of the evidence of record, the
Board finds that the preponderance of the evidence shows that
the veteran does not currently have, nor has he ever had
Lyme disease.
The veteran's service record medical records do not contain
any references to Lyme disease. The Board noted that the
records contain various complaints of symptoms which the
veteran believes represented the undiagnosed symptoms of
Lyme disease. For example the service medical record dated
October 1952 shows that the veteran was observed for
suspected rheumatic fever. In June 1953, he was for the
purpose of ruling out hepatitis. From January to April 1954,
he was hospitalized for complaints of pain and stiffness in the
back and neck. A neuropsychiatric consultation report dated
May 1954 notes that the veteran's doctors referred him for
65
evaluation of a possible hysterical conversion reaction. A
subsequently record dated June 1954 shows that psychological
testing had been completed and verified the clinical evaluation
of a schizoid individual. An administrative discharge was
recommended.
Although the veteran has expressed his own opinions that the
symptoms noted in service represented Lyme disease, the
Court has held that lay persons, such as the veteran, are not
qualified to offer an opinion that requires medical knowledge,
such as a diagnosis or an opinion as to the cause of a
disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-
§(1992).
The Board notes that there are no medical records containing
any mention of the possibility of the presence of Lyme
disease until many years after the separation from service. In
a written statement dated November 1997, Richard Karp,
M.D. a specialist in infectious disease at a VA outpatient
clinic stated that he had carefully read the medical record of
the veteran beginning with service infirmary records dated
from 1952 through discharge. He stated that the clinical
diagnoses of the time and present knowledge indicated the
onset of Lyme disease. He further stated that the veteran was
presently diagnosed and treated for Lyme disease and
exhibited the characteristics of late long term Lyme disease.
The Board notes, however, that Dr. Karp later changed his
mind and concluded that the veteran did not have Lyme
disease. In this regard, the Board notes that a VA treatment
record dated in October 2001 and authored by Dr. Karp
indicates that, although the impression included presumed
seronegative Lyme disease, Dr. Karp noted that all diagnostic
studies had been negative. He further noted that with new
information regarding the veteran's psychiatric evaluation in
66
1954, one had to assume there was no evidence of Lyme
disease with the multiple negative serologic tests and other
studies.
In addition, opinions from other physicians weigh against the
conclusion that the veteran has Lyme disease. A letter dated
in May 1996 from Tufts University School of Medicine
which is addressed to Richard Locksley, M. D., indicates that
the veteran's antibody response to the Lyme disease spirochete
B. bergdorferi was negative.
The report of an infection diseases examination conducted by
the VA in December 1997 shows that the examiner noted
that a question had been raised as to whether the veteran
acquired Lyme disease during his active duty from June 1951
to October 1954. He noted that one year after entering service
the veteran began to suffer from recurrent nonspecific illness.
These episodes were characterized by pain and stiffness of
wrists, neck, and back. They were usually not accompanied
by any physical findings. He also noted the veteran's
hospitalization for hepatitis and for psychiatric evaluation in
service. He noted that beginning in 1995, the veteran began
to reconstruct his past medical history in the context of
possible Lyme disease and became convinced that he had the
disease. He had a number of tests to evaluate the possibility
of Lyme disease, and the tests were negative. The examiner
noted that one of the tests was performed at a laboratory
which was perhaps the most prominent study site for clinical
Lyme disease. He had been treated for the past six to twelve
months with oral antibiotics by Dr. Karp for a diagnosis of
presumed Lyme disease. The veteran reported that upon the
institution of erythromycin swelling behind his knee
diminished substantially within days, The examiner noted that
erythromycin was not an appropriate therapy for Lyme
disease, and swelling behind the knee was not typical for that
67
diagnosis. Following the physical examination, the examiner
made the following comments.
My assessment of [the veteran] is that of a 65-
year-old with a long history of vague and
nonspecific complaints. The history of hepatitis
in the 1950's is likely to have been real,
although it is impossible to say based on
current laboratory findings what the etiology
of that hepatitis was. There was no evidence of
chronic or persistent arthritis, and there was no
evidence on gross exam of chronic or
debilitating illness of any specific source. The
etiology of this patient's pericarditis is unclear,
but may well be due to a variety of common-
place chronic medical illnesses, including
congestive cadiomyopathy. The history of
purported meningitis is not corroborated by
findings documented in the available medical
chart.
In particular, there is no good evidence to
suggest that diagnosis of Lyme disease either
in the 1950's nor at any time subsequently.
[The veteran] was based in North Carolina
during his years of active duty. There was no
evidence that in the 1950's there was any
significant degree of Lyme disease activity or
of Borrelia burgdorferi infection within the
tick population of North Carolina... There is
little evidence that [the veteran] would have
been exposed to Lyme disease in North
Carolina in the 1950's.
In addition, there is nothing about the patient's
68
history or physical findings that suggests in a
compelling fashion a diagnosis of Lyme
disease. Each of his complaints can be
explained on the basis of unrelated and
common illness. I disagree with Dr. Karp's
assessment that this patient exhibits the
characteristics of late long-term Lyme disease.
In fact, this patient's presentation is atypical
for Lyme disease, and together with the
repeated multiple laboratory tests suggest that
Lyme disease is quite unlikely in this patient.
The report of an infectious disease examination conducted by
the VA in December 2002 shows that the examiner reviewed
the veteran's four large claims files. He noted that Dr, Karp
had evaluated the veteran for years for possible diagnosis of
Lyme disease, and had done many tests that inciuding blood
testing and physical examination on many occasions. The
examiner contacted Dr. Karp by telephone and noted that he
stated that he felt that the veteran had symptoms that were
symptoms suggestive of Lyme disease, however he was never
able to identify Lyme disease in the veteran with any degree
of certainty. During the telephone discussion, Dr. Karp
indicated that the patient does not likely have the diagnosis of
Lyme disease. The VA examiner further stated that:
To summarize this patients C-file, his
electronic chart review through the VA
Martinez, and conversations with the patient's
treating infectious disease specialist indicate
that this patient does not likely have Lyme
disease.
Based on the foregoing medical evidence, the Board finds that
the preponderance of evidence shows that the veteran does
69
not currently have Lyme disease. A service-connection claim
must be accompanied by evidence which establishes that the
claimant currently has the claimed disability. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141,144 (1992). Accordingly, the
Board concludes that Lyme disease was not incurred in or
aggravated by service.
ORDER
Entitlement to service connection for Lyme disease is denied.
S/ Jeff Martin
JEFF MARTIN
Veterans Law Judge, Board of Veterans’
Appeals
AF DEPARTMENT OF THE AIR FORCE
70
Symbol WASHINGTON, DC
Office of the Assistant Secretary June 17, 2000
00-01065
MEMORANDUM FOR AFBCMR
FROM: BCMR Medical Consultant
1535 Command Drive, EE Wing, 3rd Floor
Andrews AFB MD 20762-7002
SUBJECT: Application for Correction of Military Records
WISTER, ROBERT B. 527-28-6267
This application for records correction is not filed
timely as it has been 451% years since the applicant was
discharged from the Air Force. Considering the length of time
since the discharge and the applicant's contention, it is nearly
impossiable to draw any valid conclusions regarding his
request. However, in the interest of justice, applicant's entire
case file has been reviewed and is forwarded with the
following findings, conclusions and recommendations.
REQUESTED ACTION: The applicant was given a General,
Under Honorable Conditions, Discharge on October 16, 1954
after serving 3 years and 4 months on active duty. Discharge
was because because if incompatibility for service secndary
to a schizoid personality disorder. He applies now requesting
a 100% medical discharge.
FACTS: The applicant contends that he contracted Lyme
Disease during aviation cadet training in North Carolina and
that this wasthe cause of all his subsequent hospitalizations
and mental problems that led to his discharge. During his 3
years of service he was hospitalized on different occasions
with a variety of problems that took him from duty for the
better portion of an entire year. In the course of these
admissions, thorough workups were performed for any
number of possiable etiologies for his problems, being
variously diagnosed with hepititis, mononucleosis, rheumatoid
arthritis, flu-like symptoms, relapsing fever, rheumatoid
71
spondylitis. ect., all symptoms that relate to this disease.
Records fail to firmly establish any of these conditions as
valid diagnoses, and psychiatric consultations then led to
extensive testing and observation with the resulting diagnosis
of personality disorder emerging. The severity of this was
such that administrative discharge was recommended and
subsequently approved.
In the volumes of material submitted for appeal, the
applicant but one statement, written in 1996 by a treating
physician that substantiates the applicant is being treated for
Lyme Disease, a disease that was unlabled in the 1950s, and
only more recently recognized as a tick-borne disorder. It is
not possiable to go back almost half a century and say with
complete certainty that this was what caused the applicant's
illnesses while serving on active duty although the
Department of Veteran's Affairs (DVA) now considers
considers the applicant to have a service-connected Lyme
Disease disorder (February 9, 2000 decision).
DISCUSSION: As stated initialy, it is difficult to draw
conclusions from information that is almost 50 years from the
past, and the issue before us for consideration is this: did did
the symptoms and findings exhibited by the applicant in his
multiple hospitalizations in his service years relate to a
disease that went unrecognized and unlabled, or was the
personality disorder that led to his discharge and underlying
constitutional problem? While the compilation of pages of
minutiae tends to obscure the applicant's contention, buried in
these volumes is information that may well relate to his
problems as being secondary to an infection with the Lyme
Disease organism, Borrelia bergdorferi, an organism similar
to the kind which causes syphilis. The very diversity of
symptoms and ffindings presented in the _ lenghty
hospitalizations points with some degree to such an event as
the underlying cause, and given the state of medical
72
knowledge of such illnesses in that day and time, such an
illness would quite possiably have excaped detection. This is
in spite of the testing that was done in the course of his
evaluations. While this discussion cannot all the
manefestatioos of this disease, a prominent one is
development of mental aberrations such as exhibited by the
applicant prior to his discharge. The intervening years have
perhaps masked the actual time of onset of the disorder that
has finally been recognized as Lyme Disease (1996), but the
problems detailed in the extensive records indicate the
likelyhood and plausability of onset occuring during the
applicant's service years.
If we accept the premise that the applicant suffered
from Lyme Diasease in the military, then we must decide
what would have been an appropriate disposition upon his
discharge. Clearly the first consideration is the character of
discharge which we would recommend be changed to
Honorable. Then given that the applicant suffered from an
unfitting condition, what were the actual limitations? it
appears that he was nowhere near the 100% disabled level
that he seeks in his appeal, but, more realisticaly a 10% level
would apply for the psychological manifestations that brought
about his discharge based on current VASRD ratings for mild
impairment under code 9327, Organic mental disorder, other
(including personality change due to a general medical
condition). Records indicate the applicant functioned as an
"engieer” (medical record entry dated May 16, 1997) in his
post-service years, thereby indicating the mildness of his
disorder and his appropriate level under disability under
which he should have been discharged.
RECOMMENDATION: The BCMR Medical Consultant is of
the opinion that, in order to correct a long-standing injustice,
the records should be changed to reflect that the applicant was
medicaly discharged under VASRD Code 9327, disability
73
severance pay be made retroactively to his date of separation,
and the discharge changed to Honorable.
s/ Frederick Hornick
FREDERICK W. HORNICK, Col., USAF MC, FS
Chief Medical Consultant AFBCMR
Medical Advisor SAF Personnel Council
74
Form 9 Filed with BVA 11/96
3/16/98 BVA docket issued #97 101 09A
Wister, Robert Bruce 18 558 714
I cite and annex to this statement the entire text of each of
the following:
+ 1. Text and bibliography (A) of letter of disagreement
dated 11/19/96.
2. 38§3.301 Copy of AF form 452 (10/54) stating I
will apply for disability compensation at a later date.
38§0.735-3 (signed under duress)
+ 3. Denial of application for disability 1/55.
t 4. 38§3.400(2)(i)(ii) 104th congress act placing first
date of VA disability claim at the first date of application.
5. Bibliographys of Lyme medical papers: General
bibliography (B), General bibliography supplement (C),
biblography of cysts in Lyme (D), bibliography of Lyme
carditis (E), bibliography of Lyme test processes (F).
6. (CWLD) Coping with Lyme Disease, Denise
Lang/w Derrick M. DeSilva, Jr. M.D. ISBN 0-8050-2650-9
Furnished
$ 7. Medical records to present from VA Out Patient
Clinic Oakland, VA Medical Center Martinez, VA
Medical Center Ft. Miley all of California.
8. Partial record of medicines prescribed from 1973 to
present.
9. Daily record of medical progress in treatment for
Lyme with Erythromycin 1996-97. (1996 appointment list)
t 10. Compilation, with anotation, from military medical
records 38§3.301 and subsequent treatment submitted with
initial disability application with cover title "Wister's case for
Lyme diagnosis 4/14/96' (Submitted with local office action
343/21 1/mjg)
t 11. Records titled, "Robert B. Wister 6267, cardiac
75
records 53-54, Lyme carditis bibliography" submitted during
cardiac evaluation 4/9/97 VA Ft Miley. (part of Ft. Miley
records)
12. Lincoln National medical insurance offer 5/90.
t Early 1996 a request was made for COMPLETE
MILITARY MEDICAL RECORDS 38§3.2(e) Robert B.
Wister Serial AF 19398867. 38§1.513(b)(i)(ix) Partial records
were submitted. 38§0.735-3 The following were excluded and
are critical to reverse several false contentions [9/12/96] of
the VA 38§3.304(b) of "congential disease".
1. 12 June 1951 entrance medical
2. Brooks AFB record of hernia operation 51
3. Brooks AFB aviation cadet physical 51
4. Maxwell AFB hospital clinical records 52-535. Keesler
AFB hospital clinical records 53
6. Greenvile AFB General Courts hearing for resignation
from cadets.
7. Letterman Army Hospital clinical records 54.
8. Mather AFB discharge medical 54
38§3.303 (b) Onset, of Lyme, is borne out beginning
with the "July 18, 1952 entry of admission to hospital for
sore throat, chest pain and 101°F temperature." Subsequent
clinical comment such as; common cold, influenza, Barotitis
(sic) media, joint pain and stiffness, wrist neck and back,
rheumatic fever, in sum designate the onset of Lyme disease
(CWLD). None of any symptomatic etiology separately was
borne out as an ongoing disease. The mimic character of
Lyme as a phlanax of symptoms at onset (stage 1) was borne
out. The only laboratory evidence cited is elevated sedrate at
each stage of hospitalization. Then current ignorance of the
disease prevented approprate laboratory tests.
38§3.303 (a)Subsequent admissions to hospitals at
Maxwell AFB, Greenville AFB, Keesler AFB, Mather AFB,
Letterman Army Hospital elicited clinical investigation of,
76
—
rheumatoid spondylitis, infectious hepatitus, syncope, hearing
loss, tumor of jaw, cyst of left neck, psycharitic hysteroid,
schizoid makeup (stage 3).
38§3.154 During hospitalization cited above drugs
such as penicillin and ACTH were administered. Penicicillin
intermuscular in small doses for short periods causes
temporary remission of Lyme disease as seen in the clinical
record. It excaberates long term outcome by causing
resistance to further penicillin treatment. Only sustained long
term penicillin (Amoxicillin) treatment (30+ days) of early
(stage 1) disease is found effective. ACTH is found to
excaberate the disease at all stages. It was administered at
Mather AFB and Letterman Army Hospital and Letterman
Army Hospital, thereby causing negative prognosis for cure
of stage 3 disease. Current 1997 prognosis for stage 3 Lyme
is poor. There is believed to be no assured CURE for Lyme
after reaching this stage. Recent heart disease of pericarditis
(2/13-3/7 97) is identified as one — symptomatic
evidence of stage 3 Lyme.
First specific tests for Lyme were made in spring
1996. This is 44 years after onset which the literature states
has little chance of identification of the spirochette since
sequestering, resistance response, mutation deny verification
by laboratory processes. Spinal tap taken in 1952 placed
under election microscope would have idenitfied the
spirochette at that time. Requests for electron microscope
investigation of cysts and recent heart tap liquid from
pericarditis have been specificaly refused. Recombinant DNA
tests by QUALIFIED LABORATORIES to standards cited in
the literature have not been done. All tests have been made at
the level used to identify, stage 1, early onset Lyme and are
inappropriate for a 44 year old, stage 3, case.
38§3.303(a)(b)The following are symptoms (* 50 my
case) identified in (CWLD) Lyme cases;
SKIN
77
Etyherma migrans-bull's eye rash
Lymphocytoma-rash resembling a skin cancer
Malar rash-resembles lupus on cheeks and nose
Urticaria-hives similar to allergic reaction
Cellulitis-rash caused by bacterial infection
HEART
Heart block-slowed heart rhythm due to electrical
signal failure
. Myocarditis-inflamation of the heart muscle
Pericarditis-inflamation of the membrane surrounding
the heart
. Arrhythmia-irregular heart beats
Cardiomegaly-enlarged heart
Syncope-fainting
Dizzyness
Shortness of breath
Chest pain-resembles heart attack
Palpitations-rapid heart beat or skips
Gallops-triple cadence in heart sound, caused by
abnormal or fourth beat
NEUROLOGIC
Bell's palsy-paralysis of a facial nerve
Radiculopathy-disease of spinal nerve roots
Meningitis-inflamation of the membrane surrounding
the brain
Encephalitis-inflamation of the brain
Peripherial neuropathy-disease of the peripheral nerves
Plexopathy-disease of the nerve networks
Chorea-spasmodic movements of the limbs or facial
muscles
Multineuritis multiplex-inflamation of multiple nerves
Transverse myelitis-inflamation of the spinal cord
Cerebellar ataxia-loss of muscle coordination caused
by disease in the cerebellum
of the brain
*
¢ &© &© &@ © F
*
*
78
Pseudotumor cerebri-abnormal increased pressure on
the brain
Guillian-Barré-like illness
Multiple sclerosis-like illness
Seizures
Cranial arteritis-inflammation of the arteries in the
brain
Headache-mild to excruciating
Stiff neck
Dysesthesias-impairment of normal sensation
. Paresthesias-abnormal sensations, such as burning,
pricking or tingling
. Sleep disturbance
' Hearing loss
Hemiparesis-partial paralysis of one side
. Paraparesis-partial paralysis of lower extremities
EYES .
. Double or blurry vision
. Floating spots
Oversensitivy to light
* [Retinal detachment]
Flashing lights
EARS
. Decreased hearing in one or both ears
Buzzing in ears
” Pain in ears
” Ringing in one or both ears
RESPIRATORY
* Shortness of breath, cough
3 Chest pain or rib soreness
. Night sweats or unexplained chills
PSYCOLOGICAL
. Mood swings, irritability
Unusual depression
Disorientation (getting or feeling lost)
*
*
79
Feeling as if your are loosing your mind (soon)
Overemotional reactions, crying easily
" Too much sleep or insomnia
Difficulty falling or staying asleep
MENTAL :
Memory loss (short or long term)
Confusion or difficulty in thinking
Difficulty with concentration or reading
Going to the wrong place
Forgetting how to perform simple tasks
ENERAL
Unexplained weight gain or loss
Extreme fatigue
Swollen glands
Unexplained feevers, high or low grade
Symptoms seem to change, come and go
Pain migrates to different body parts
— Early on, experienced a "flu like illness" after which
you have not felt well since
Note the similarity to Gulf Syndroms 38§3.317(5)(b)(1-12)
+ 38§3.328 38§20.901 It is further stated that NO
determination of Lyme presence or absence and onset may be
made without independent review of the medical records in
their entirety by a QUALIFIED PRACTICING LYME
SPECALIST. Such qualification must consist of minimum of
100 patients in third stage Lyme by the doctor or an
ageregate of several doctors in such practice. Such
qualification is required by the very nature of variability of
Lyme infection. Drs named as authors of listed bibliography
papers will be primarily considered.
I claim:
1. 38§3.340(3) 38§3.4(b) 38§3.400(2)(i)(ii)
Compensation for 100% disability from first date of
application January 1955 to present and continuing.
2. 38§3.340(1)(11) Compensation for loss of education
2 0 0 2 Se) & 2 2 2 2
80
due to ongoing episodes of Lyme symptoms.
3. 38§3.31(c)(3)(i) Compensation for continuing
medical expenses as a civilian without VA medical assistance
1955-95.
4. 38§3.340(b) Compensation for loss of income
during and ensuing from medical epsodes with exclusion from
medical insurance coverage and resulting exclusion from
employment and retirement plans.
5. 38§0.735-3 38§3.340(3)(b) Compensation for
ongoing and continuing refusal of the Veterans
Administration to evaluate and adjudicate the disability
application with evaluation of ongoing medical episodes
indicating chronic disease, 1955-present.
6. 38§20.611 38§0.735-3 Extension of the right to
apply punitive compensation for continuing dilatory
action by the VA, refusing to act in relevant manner.
¢ The following sections of USC title 38 are noted, and
invoked, as relevant to the conduct of the appeal hearing:
38§19.12(a), 38§20.710-711 [Dr. Richard Karp OVAMC,
Captain Thomas A. Hensel, USAF MC, et. al.], 38§20.715,
38§20.901(d).
* * * *
Notes: + indicates papers previously presented and in the hand
of the VA or solely available to the VA.
Bibliographys are cited in each articles full text and reference
will be made in present and future actions to such full text.
Recording will be made of all proceedings for use in future
actions as provided in USC title 38§20.715.
Specificaly, applicant has provided in his will for proceedings
to continue per USC title 38§20.611.
Computation of money compensation for claims 1-5 shall be
the sole right of claimant 38§3.4(b).
81
previous SC filings
RE: SC 97-3220-2055/1746 March 22, 2004
Leading case: lyme cases list attachemnt to Other
January 23, 2007
Court of Veterans Appeals
Legal decisions pertaining to my case for Lyme
Westreports decisions of the CVA. Robert B. Wister
case 18 558 714
Winn v. Brown 8 Vet. App. 510, 38§1111, 96 Induction
physical creates presumption of soundness.
Marlow v Brown 5 Vet. App. 146, DIS F.3d 443, 93 BVA
finding of no "clear and unmistakable error" in prior decision,
1948, evidence confirmed case, action was arbitrary and
Capricious’.
Wade v. Derwinski 3 Vet. App. 76, 92 Lay evidence
including veterans observations may be sufficent to warrant
service connection.
Gregory v. Brown 8 Vet. App. 563, 38§5107 (a); Caluza v.
Brown 7 Vet. App. 489 aff 78 F. 3d 604 RH Den/Holland v.
Brown 6 Vet. App. 443, 96 Submission of well grounded
claim is prerequsite to triggering duty to-assist obligation.
Falzone v Brown 8 Vet. App. 398, 95 Reopen claim on new
and material evidence.
Fanning v. Brown 4 Vet. App. 225, 383USCA§1155, 92 VA
has authority to adapt ratings to compensate for reduced
employability due to injury.
Betters v. Brown 6 Vet. App. 333, VRR 38USAC§3.03 (b),
93 If evidence is established disease manifested in service was
chronic, there is no requirement for continuity of symptoms.
Talbert v. Brown 7 Vet. App. 352, 38§§5108, 7104 (b), 95
"Clear and unmistakable error" first and subsequent decisions
on "cured" disease or remission.
Cook v. Brown 4 Vet. App. 231, 93 Unreasonableness of
82
time lapse between manefestation of chronic disease and
definite diagnosis is strength of evidence establishing
evidence of disease manefestations and chronic disease.
Lendenmann v. Principi 3 Vet. App. 345, 92 Where no code
exists, VA must evaluate under codes for analogous disorders.
Moore v. Derwinski 1 Vet. App. 401, 38 USCA §§354 (b),
5107,; PB VRR §§3.102, 3.304 (d), 38 USCA § App-, 91
Destroyed records create presumption of service connection.
Dixon v Derwinski 3 vet 261, 263. '92 which held that VA
breached the duty to assist where it failed to inform the
claimant of the need to submit "alternative forms of evidence"
where SMRs were lost,
Murphy v. Derwinski, | Vet.App. at 82 (duty to assist extends
to the securing of any relevant military, VA, or other
government records or, with appellant's cooperation, private
medical, hospital, employment, or other civilian records).
see also O'Hare v. Derwinski, | Vet.App. 365, 367 (1991)
(when SMRs have been destroyed, BVA has heightened
obligation to provide explanation of reasons or bases for its
findings and to consider benefit-of-doubt rule).
Curry v Brown 91-504 When an appellant's service records
are missing, as the record shows that most of the veteran's
are, "the BVA's obligation to explain its findings «nd
conclusions and to consider carefully the benefit-of-the-doubt
rule is heightened." Moore (Howard) v. Derwinski,
1 Vet.App. 401, 406 (1991); see also O'Hare v. Derwinski,
1 Vet.App. 365, 367 (1991).
Mattson v. Derwinski 2 Vet. App. 643, 383 USCA§5107 (a), 92
Abscence of medical records places burden on BVA (141
Heightened).
Hicks v. Principi 4 Vet. App. 2, 94 Substantial gainful
employment must address patchwork employment history.
Peters v. Brown 7 Vet. App. 342, (102) 38USCA§5121 (a,c)
Accrued benefits survive death of veteran.
Whipp v Prncipi 3 Vet. App. 453, 94 Care in emergency,
83
VA not available or refused.
Grottviet v Brown 5 Vet. App. 91, 93.:Espiritu v Derwinski
2 Vet. App. 492, 494-5 (1992) Lay testimony may be
sufficent
Epps, 126 F.3d at 1469 (emphasis added) duty to assist in
"well grounded case"
(1) medical evidence of a current disability; (2) medical or,
in certain circumstances, lay evidence of occurrence or
aggravation of a disease or injury in service; and (3) medical
evidence of a nexus between an in-service injury or disease
and the current disability. Caluza v. Brown, 7 Vet.App. 498,
506 (1995), affd per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table); Epps v. Brown, 9 Vet.App. 341, 343-44 (1996), affd
126 F.3d 1464, 1468 (Fed. Cir. 1997)
DADA
38 CFR. § 3.303(b) (1998), by the submission of (a)
evidence that a condition was "noted" during service or
during an applicable presumption period; (b) evidence
showing postservice continuity of symptomatology; and (c)
medical or, in certain circumstances, lay evidence of a nexus
between the present disability and the postservice
symptomatology. Savage v. Gober, 10 Vet.App. 488, 495-97
(1997).
ADAANAAA
The determination of whether a claim is well grounded is a
matter of law which this Court reviews de novo. Grivuis v.
Brown, 6 Vet.App. 136, 139 (1994).
DADAALAA
"clear and unmistakable error." See Russell v. Principi,
3 Vet.App. 310, 313-14 (1992) (en banc); see also Chisem v.
Brown, 4 Vet.App. 169, 176 (1993).
AD ASASAAA
Bailey v. Derwinski, 1 Vet.App. 441, 446-48 (1991)
(reversing as product of arbitrary and capricious decision
making process Board decision)
84
ADAAADAAA
"clearly erroneous" standard pursuant to 38 U.S.C.
§ 7261(a)(4), see Elkins, 12 Vet.App. at 217
AAADAA
"plausible" basis for such BVA determinations, the Court
cannot overturn them. Gilbert v. Derwinski,
AAAAA
Where any veteran shall have suffered an
injury, or aa aggravation of an injury, as the
result of hospitalization, medical or surgical
treatment .. . , and such injury or aggravation
results in additional disability to or the death
of such veteran, disability or death
compensation under this chapter . . . shall be
awarded in the same manner as if such
disability, aggravation, or death were service-
connected.
38 U.S.C. § 1151 (1991); see Brown v. Gardner, 513 U.S.
115 (1994).
A NAAAAA
(distinguishing 7irpak and stating in dictum that medical
evidence as to nexus to service expressed as "could" suffices
for requirement of well-grounded claim), with Alemany v.
Brown, _ Vet.App. _, _, No. 94-1025, slip op. at 3 (Nov.
20, 1996)
AAAAA
his statements as to continuity of symptomatology "provide a
direct link between the appellant's active service and the
current state of his condition"); Godfrey v. Brown, 7 Vet. App.
398, 406 (1995) (where service-connection claim is based on
continuity of symptomatology under 38 C.F.R. § 3.303(b)
(1994), competent medical evidence not necessarily required
to make claim well grounded).
ADAAWASA
Wood, | Vet.App. at 193, which involved the obligations
85
imposed on the Secretary and a claimant under the duty to
assist pursuant to 38 U.S.C. § 5107(a), that "[t]he duty to
assist is not always a one-way street. If a veteran wishes
help, he cannot passively wait for it in circumstances where
he may or should have information that is essential in
obtaining the putative evidence."
Wallin and Sacks, supra; see also Libertine v. Brown,
9 Vet.App. 521; 523 (1996) (medical treatise evidence must
demonstrate connection between service incurrence and
present injury or condition)
AAAA
employability Colvin v. Derwinski, 1 Vet.App. 171, 175
(1991).
AAA
it is not the function of this Court to determine in the first
instance which version of the law is most favorable to the
claimant. Baker v.West, 11Vet.App. 163 (1998).
Accordingly, a remand is required in order to provide the
Board with an opportunity to readjudicate the veteran's claim.
See generally Karnas v.Derwinski, 1 Vet.App. 308, 312-13
(1991) (when law or regulation changes after claim has been
submitted, but before administrative or judicial appeal process
has been concluded, law which is most favorable to plaintiff
must be applied).
AAAAA
Hilkert v. West, 12 Vet.App. 145, 149-50 (1999) 96-208
"stealth consideration" Not only is this notion contrary to
basic principles of rational decisionmaking, but such
unwritten, undisclosed consideration clearly violates the later
enactments of Congress requiring that the Board (in 1988)
and then regional offices (effective in 1990) must include in
their decisions the reasons for them and not hide their reasons
and reasoning under the table.
AAAN
"Service connection may be granted for any disease diagnosed
86
after discharge, when all of the evidence, including that
pertinent to service, establishes that the disease was incurred
in service." 38 C.F.R. § 3.303(d) (1998). "Disability which
is proximately due to or the result of a service-connected
disease or injury shall be service connected." 38 C.F.R.
§ 3.310(a) (1998).
AAAA +
On remand, the Board must ensure compliance with the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096. See Fortuck v. Principi, 17 Vet.App.
173, 181 (2003); Charles v. Principi, 16 Vet.App. 370, 374
(2002); see also 38 U.S.C. §§ 5103(a), 5103A; Quartuccio v.
Principi 16 Vet.App. 183, 187 (2002). In addition, the Board
must ensure compliance with this Court's decision in Stone v.
Gober, 14 Vet.App. 116, 119-20 (2000) (requiring Under
Secretary for Benefits to provide adequate rationale for
conclusion, pursuant to 38 C.F.R. § 3.311(c)(i1) (1999), that
there was no reasonable possibility
AAAAA
The delay involved, although frustrating to the petitioner,
must be unreasonable before this Court will inject itself into
VA's adjudicative process. See Bullock v. Brown, 7 Vet.App.
69, 69 (1994)
AAAALA
Service connection may be established by demonstrating
chronicity under 38 C.F.K. § 3.303(b), which-provides:
subsequent manifestations of the same chronic
disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. This rule does not mean
that any manifestation of joint pain, any
abnormality of heart action or heart sounds,
any urinary findings of casts, or any cough, in
service will permit service connection of
arthritis, disease of the heart, nephritis, or
87
pulmonary disease, first shown as a clearcut
clinical entity, at some later date. For the
showing of chronic disease in service there is
required a combination of manifestations
sufficient to identify the disease entity... as
distinguished from merely isolated findings or
a diagnosis including the word "Chronic."
DAAAAAA
consistent with general rules of agency in that principals are
liable for the misdeeds committed by their agents when the
agents act with apparent authority. GLEASON sv.
SEABOARD AIR LINE R. CO., 278 U.S. 349, 49 S.Ct. 161,
73 L.Ed 415 (1929)
DAAAADNAA
ERSPAMER v Derwinski 89-14 The All Writs Act provides
that
The Supreme Court and all courts established
by Act of Congress may issue all writs
necessary or appropriate in aid of their
respective jurisdictions and agreeable to the
usages and principles of law.
28 U.S.C. § 1651 (a).
The United States Court of Wéterans Appeals is a
“court[] established by Act of Congress." Section 4051 of the
Veterans Judicial Review Act of 1988 (VJRA), Pub. L. 100-
687, Title III, Sec.301, 102 Stat. 4113, provides that "[t]here
is hereby established, under Article I of the Constitution of
the United States, a court of record to be known as the United
States Court of Veterans Appeals." Article I courts are
empowered to exercise jurisdiction under the All Writs Act.
See, e.g., Noyd v. Bond, 395 U.S. 683, 695 n.7, 89 S.Ct.
1876, 1883, 23 L.Ed.2d 631 (1969) (United States Court of
Military Appeals); United States v. Frischholz, 16 C.M.A.
150, 36 C.M.R. 306 (1966) (United States Court of Military
Appeals) We hold further that the decade of delay by the
88
Veterans Administration, and its successor, the Department of
Veterans Affairs, in acting upon the claims submitted by
petitioner and her husband has been unreasonable and that _
petitioner has exhausted all available alternative remedies.
DAAAAASAASALA
"all evidence and material of record," 38 U.S.C. § 7104(a),
and must provide a "written statement of [its] findings and
conclusions, and the reasons or bases for those findings and
conclusions, on all material issues of fact and law presented
on the record," 38 U.S.C. § 7104(d)(1). See Douglas v.
Derwinski, 2 Vet.App. 435, 438-39 (1992) (en banc); Gilbert,
1 Vet.App. at 56-57.
ADAA AAA AALAMSAA
The "Clearly Erroneous" Standard of Review
Congress has provided that this
Court . . . to the extent
necessary to its decision and
when presented, shall . . . in the
case of a finding of material
fact made in reaching a
decision in a case before the
[Department of Veterans
Affairs] with respect to benefits
under laws administered by the
[Department of Veterans
Affairs], hold unlawful and set
aside such finding if the finding
is clearly erroneous.
38 U.S.C. § 4061(a)(4) (1988).
ADAAALNASASASAALA
"clear and convincing evidence", which applies
when the individual interests at
stake .. . are both "particularly
important" and "more
substantial than mere loss of
89
money." . . . the Court has
deemed this level of certainty
necessary to preserve
fundamental fairness in a
variety of government-initiated
proceedings that threaten the
individual involved with "a
significant deprivation of
liberty" or "stigma."
Santosky, 455 U.S. at 756.
not yet been addressed by the Board of Veterans’ Appeals
(BVA), see Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir.
2000)
(1) inexcusable delay on the part of the claimant, and (2)
prejudice resulting therefrom to the detriment of defendant.
Pepper v. United States, 794 F.2d 1571, 1573 (Fed. Cir.
1986). “Failure to act promptly will operate as a bar to
recovery where the delay results in injury [or] prejudice to
the adverse party." Deering v.
United States, 620 F.2d 242, 244 (Ct. Cl. 1980) (en banc)
(emphasis added) (quoting Brundage v. United States, 504
F.2d 1382, 1384 (Ct. Cl. 1974)). The applicability of laches
is a matter left to the discretion of the Court. See Czaplicki
v. The S.S. Hoegh Silvercloud, 351 U.S. 525, 534 (1956);
see also Jamesbury Corp. v. Litton Indus. Prods., Inc., 839
F.2d 1544, 1551 (Fed. Cir. 1988), cert. denied, 488 U.S.
828 (1988).
AAAAAAAAAA
"fiJt is the obligation of VA . . . to render a decision which
grants [the veteran] every benefit that can be supported in
law while protecting the interests of the Government." 38
C.F.R. § 3.103(a).
90
AAAAAAAAAAA
Manio v Derwinski 90-86 Congress has designed and fully
intends to maintain a beneficial non-adversarial system of
veterans benefits. This is particularly true of service-
connected disability compensation where the element of cause
and effect has been totally by-passed in favor of a simple
temporal relationship between the incurrence of the disability
and the period of active duty.
I[m]plicit in such a
beneficial system has been an
evolution of a completely ex-
parte system of adjudication in
which Congress expects VA to
fully and sympathetically
develop the veteran’s claim to
its optimum before deciding it
on the merits. Even then, VA
is expected to resolve all issues
by giving the claimant the
benefit of any reasonable
doubt. Jn such a beneficial
Structure there is no room for
such adversarial concepts as
cross examination, best
evidence rule, hearsay evidence
exclusion, or Strict adherence
to burden of proof.
H.R. Rep. No. 963, 100th Cong., 2d Sess. 13, reprinted in
1988 U.S. Code Cong. & Admin. News 5782, 5795
(emphasis added).
"new and material", that determination (but only that
determination) would be subject to review on appeal to this
Court. If we find this determination "arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
91
law" under 38 U.S.C. § 4061(a)(3)(A) (1988), a remand
would be required.
JEAN A. ERSPAMER v Derwinski 89-14 February 23, 1990)
"expeditiously as possible" ten years or more for
INDEPENDENT MEDICAL REVIEW. However, All Writs Act
jurisdiction extends beyond pending cases; it embraces the
prospective and potential jurisdiction of a court as well. As
the Supreme Court has held: "The exercise of this [All
Writs Act] power . . . extends to the potential jurisdiction of
the appellate court where an appeal is not then pending but
may be later perfected."
AAAAAAA *
“full benefits of these procedural safeguards". Bernard, 4
Vet.App. 384, 393-93 (citing, e.g., 38 U.S.C. §§5104,
7105(d)(1); 38 C.F.R. §§ 3.103(a), 19.29, 19.131).
Gilbert, supra; Jones (McArthur) v. Derwinski, 1 Vet.App.
210, 219 (1991) (separate views regarding "[a]voiding a
fruitless remand for superfluous factfinding").
Floyd D. Bucklinger v Brown 92-273 disease vs trauma
causitive of disability [constitutional question] 38 C.F.R.
§ 4.87a, DC 6260 (1992)
Robinette v. Brown, 8 Vet.App. 69 (1995). Robinette held
that when a veteran has failed to submit with his original
application sufficient evidence to well ground his claim and
the Secretary is "on notice of relevant evidence that may
have existed, or could have been obtained, that, if true,
would have made the claim ‘plausible,’" then the application
is incomplete and the Secretary has an obligation under 38
U.S.C. §5103(a) to advise the veteran of the evidence
needed to complete the application.
AAAAAAAA
92
In Thurber v. Brown, the Court held:
[Bjefore the BVA relies, in rendering a
decision on a claim, on any evidence
developed or obtained by it subsequent to the
issuance of the most recent [Statement of the
Case (SOC)] or [Supplemental (SOC)] with
respect to such claim, the BVA must provide
a claimant with reasonable notice of such
evidence and of the reliance proposed to be
placed on it and a reasonable opportunity for
the claimant to respond to it. Thurber, 5
Vet.App. 119, 126 (1993)
Clyde E. Graves, Brown 94-915 Sec denied access to
evidence (July 31, 1995 PER CURIAM.)
Thuan L. Hasty, v Principi 98-1511 VCAA intervention in
case time, On remand, the appellant is free to submit
additional evidence and argument necessary to the resolution
of her claim. See Kutscherousky v. West, 12 Vet.App. 369,
372 (1999) (per curiam order). The Board shall proceed
expeditiously. See Veterans’ Benefits Improvement Act,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994)
(found at 38 U.S.C. § 5101 note) .
Oscar G. Fugere, v Derwinski 89-72 An action of the
[Secretary] to which section 552(a)(1) or 553 of title 5 (or
both) refers . . . is subject to judicial review. . . . [I]f such
review is sought in connection with an appeal brought under
the provisions of chapter 72 of this title [Veterans’ Judicial
Review Act], the provisions of that chapter shall apply.
AAAAAAA
Fugure v Derwinski 89-72 undesirable specter of piecemeal
litigation. Cf. Flanagan v. United States, 465 U.S. 259,
263-64 (1984); Firestone Tire & Rubber Co. v. Risjord, 449
93
U.S. 368, 373-74 (1981)
Oscar G. Fugere v Derwinski 89-72 Notification of change
of regulations.
Walters v Derwinski 91-1370 Board refused to follow
precedent established by this Court in Fugere v. Derwinski,
U.S. Vet. App. No. 89-72 (Dec. 27, 1990) Summary
reversal.
William M. Colvin v Brown 91-1342 [med opinion] Court
expects that the BVA will reexamine the evidence of record,
seek any other evidence the Board feels is necessary, and
issue a timely, well-supported decision in this case.");
cf. Manio v. Derwinski, 1 Vet.App. 140, 145-47 (1991). On
consideration of the foregoing, it is
ORDERED that the decision of the Board is
VACATED and the matter REMANDED for further
adjudication consistent with this order. Weber [[when viewed
in the context of all the evidence, both new and old, would
change the outcome") [hereinafter Colvin test]] Remand for
new evidence. see Elkins, 12 Vet.App. 209, 218 (1999)
the appellant will be free to submit additional evidence and
argument" on the remanded claims. Quarles v. Derwinski,
3 Vet.App. 129, 141 (1992)
VA must demonstrate the reasonableness, in law and fact, of
the position of the VA in a matter before the Court, and of
the action or failure to act by the VA in a matter before the
VA, based upon the totality of the circumstances, including
merits, conduct, reasons given, and consistency with judicial
precedent and VA policy with respect to such position, and
action or failure to act, as reflected in the record on appeal
and the filings of the parties before the Court.
94
Stillwell, 6 Vet.App. at 302-03.
Thurber IMO; BVA panels may consider only independent
medical evidence to support their findings. If the medical
evidence of record is insufficient, or, in the opinion of the
BVA, of doubtful weight or credibility, the BVA is always
free to supplement the record by . . . citing recognized
medical treatises in its decisions that clearly support its
ultimate conclusions. See [38 U.S.C.A. § 7109 (West
1991)]; Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990)
(Emphasis added.) Subsequent to the Court’s decision in
Colvin and the issuance of the BVA’s decision here on
appeal, as indicated in part I., supra, the Court held that,
prospectively, if the BVA relies on a portion of a medical
treatise in arriving at its decision, the BVA must quote the
relevant portions upon which it relies, and that “such
quotations should be of sufficient length so that their context
(both within the treatise in question and within the body of
relevant literature) is able to be determined." Hatlestad, 3
Vet.App. at 217.
Thurber v Brown 92-172 Extension to appellant; The
procedure that the Court called for in Colvin . . . was
designed to ensure "that all medical evidence contrary to the
veteran’s claim will be made known to [the veteran] and be
a part of the record before this Court." ... ...
[Q]juotations from medical treatises . . . should be of
sufficient length so that their context (both within the treatise
in question and within the body of relevant medical
literature) is able to be determined.
AAAAAA
The ability to overcome the handicap of disability varies
widely among individuals. The rating, however, is based
primarily upon the average impairment in earning capacity,
that is, upon the economic or industrial handicap which must
95
be overcome and not from individual success in overcoming
it. However, full consideration must be given to unusual
physical or mental effects in individual cases, to peculiar
effects of occupational activities, to defects in physical or
mental endowment preventing the usual amount of success in
overcoming the handicap of disability and to the effect of
combinations of disability. Total disability will be
considered to exist when there is present any impairment of
mind or body which is sufficient to render it impossible for
the average person to follow a substantially gainful
occupation. .. .
38 C.F.R. § 4.15 (1993)
Holland v Brown 92-728; 38 C.F.R. § 4.16(a) (emphasis
added). A veteran with service-connected disabilities that do
not meet the percentage requirements detailed in subsection
(a), however, may still seek extra-schedular consideration of
a TDIU rating. 38 C.F.R. § 4.16(b) (1993) See Holland v.
Brown, 9 Vet.App. 324 (1996)
"A person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within
the meaning of a relevant statute, is entitled to judicial
review thereof." 5 U.S.C. § 702
*Kiser v Principi 98-390; "expeditious treatment" for claims
remanded by Board or Court). See Drosky v. Brown,
10 Vet.App. 251, 257 (1997); Allday v. Brown, 7 Vet.App.
517, 533-34 (1995). On remand, the appellant may submit
additional evidence, to the extent appropriate to a CUE
matter, and argument on the remanded claim. See
Kutscherousky v. West, 12 Vet.App. 369 (1999) (per curiam
order). The Court notes that a remand by this Court or by
the Board confers on an appellant the right to VA compliance
with the remand order and imposes on the Secretary a
96
concomitant duty to ensure compliance with the terms of
such an order. See Stegall v. West, 11 Vet.App. 268, 271
(1998).
§ 7261. Scope of review
(a) In any action brought under this chapter, the Court
of Appeals for Veteran Claims, to the extent necessary to its
decision and when presented, shall-....
(4) in the case of a finding of material fact adverse
to the claimant made in reaching a decision in a case before
the Department with respect to benefits under laws
administered by the Secretary, hold unlawful and set aside or
reverse such finding if the finding is clearly erroneous. ©
In making the determinations under subsection (a) of this
section, the Court shall review the record of proceedings
before the Secretary and the Board of Veterans’ Appeals
pursuant to section 7252(b) of this title and shall -
END OF APPENDIX
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.