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Berta M. Simmons

Berta M. Simmons, Cohocton, NY

Cohocton, NY.
February 15, 2008

Secretary Eric Shinseki
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC. 20420

Re: XC 24 884 978

Dear Secretary Shinseki,

In spite of the VA Fast Letter # 08-41 dated November 14, 2008, and the Inspector General’s audit, and in spite of the pending hearing set for February 25th by the Subcommittee on Disability Assistance and Memorial Affairs regarding the “October Incident” the Veterans Administration has again destroyed my probative medical evidence.

In defiance of the terms of a September 2008 BVA remand, which for the first time acknowledged my three independent medical opinions that support my claim and also references other documentation I had sent to VA as probative evidence- the decision I just received from the AMC, which was mailed to me from the Seattle VARO (the claim originated at Buffalo VARO where I filed it in February 2003, 6 years ago) this decision shows that my evidence has been destroyed again by the Veterans Administration.

I have enclosed copies of 53 tracking slips from USPS since Feb 2003 that proves that I not only sent this evidence in, I also sent it directly to Donna Terrill Director VA Buffalo, directly to Terry Draper DRO Buffalo, to Former Deputy Secretary Mansfield (April 2008)(whose office  in turn submitted it again to the Buffalo RO) and as you can see these were numerous submissions of considerable evidence. I am a volunteer veterans disability advocate and I certainly know what is probative evidence and what is not redundant nor accumulative evidence. I also am aware of all VA case law and regulations that assure a claimant’s evidence will be properly considered.

 Since this involves so much evidence and even subsequent submissions of it all again, in my case, I can hardly accept any notion that it has somehow all been misplaced or lost. It has been destroyed by the Veteran’s administration, most recently under the jurisdiction and auspices of the AMC.

Since my most critical evidence from 1995 to 1997 was destroyed by the Buffalo VA and only by calling the Strategic Health Team at VACO did I have it finally properly addressed, when I faxed it directly to them-this too adds credibility to my charge that the Veterans Administration has again destroyed my evidence. Also I have two CUE claims filed in 2004 that the Buffalo VARO has ignored and probably destroyed my extensive legal evidence on .as well, since they never have acknowledged this legal evidence at all.

The Neurologist , Dr. Hamid Rabiee, had prepared a VA MRI report on the veteran when he was employed at the VA and was treating my husband at the Syracuse VAMC. His IMO statement of 2004 incorporated into the first IMO from Dr. Bash was based on his own medical entries in the VA clinical records when he himself had treated the veteran.  Dr. Craig C. Bash based his opinions of November 2004 and August 2006 on many other medical points to include his experience in reading “thousand’s” of MRIs of diabetics and he gave full medical rationale for his conclusions. My IMO opinions fully outweigh the expertise of a physician’s assistant who opined on this claim recently without the entire record and evidence.

 I have submitted to VA, as well as evidence from the actual VACO report of malpractice dated July 1997, a prior Internal VA  Review that supports this claim that VA said never existed at all but I have sent the VA  a copy of it, EEOC testimony, the veterans complete autopsy, Corning College Voc Rehab Accommodation request info, VA, as employer of the veteran-accommodation request info, SSA records, and countless medical abstracts I sent that are SPECIFIC in every way to the claim, the Veterans Administration-most recently under the auspices and jurisdiction of the AMC, has chosen to destroy that evidence and to completely violate the conditions of the BVA remand. The BVA remand  also told me that I could send in more evidence and additional argument for proper resolve. I did- the AMC received this packet of evidence and argument on October 3rd, 2008. That too has been destroyed by the AMC.

You have  inherited problems that will continue to get worse. The IG audit is not public and so far only the online veterans communities are fully aware of the “October Incident.” The VA has not implemented any viable scenario at all to support the statements in the Fast Letter #08-41.

I want the AMC to call a CUE on itself, to realize they have made a clear and unmistakable error to my detriment by not acknowledging my extensive and probative evidence. I want a decision under Relative Equipoise because my medical evidence far outweighs the VA’s and comes from medical doctors who have the expertise to make a valid opinion and who also considered the clinical record and other evidentiary documents properly. Also my competent lay evidence and abstracts are pertinent and probative to this claim I want ALL of my evidence considered.


Berta M. Simmons
                                                                           Surviving Spouse of Rodney F.  Simmons

Enclosures:  copy 53 USPS tracking slips

Copies being sent to:
Inspector General VA
Congressman Hall House Subcommittee Disability/Memorial Affairs
Congressman Filner House VAC
Subcommittee Investigations and Oversight VA
Arthur Russo, Director Appeals Management Center-VA