ptsd Jurisdiction Of C&ue

[RodnAnn]

My Vietnam veteran husband is at 50% SC for PTSD & has been since 2008. 1990 was the first time he filed a claim for PTSD & he let that claim become final. Again in 2002 he filed a claim for PTSD & when he was denied he did not appeal and that claim became final. At the time of the 2 claims mentioned we lived in Alabama. So these claims were decided in Montgomery, AL. After moving to Mississippi, he got his claim re-opened in 2008 by submitting new and material evidence. That claim was decided in Jackson, MS. In July 2012 he filed for an EED on his 2008 award for PTSD( which at the time was at 30% ) to include C&UE & to extend back to 2002. At the same time he had an appeal at the BVA for an increase to 100% for the PTSD. When they ruled on the appeal in November of 2013 they mentioned the C&UE:

" the issue of whether clear and unmistakable error was committed in the prior final rating decisions of November 1990 and November 2002 has been raised by the record , but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action."

My question is "Has anyone experienced a similar situation and can anyone give us any insight to where the claim for C&UE ended up?" We don't know where to go for answers and we really don't understand what this statement means. Is the claim for C&UE at the regional office in AL or MS?

[FormerMember]

I believe a clarification is in order. The VARO who currently serves you is the one who keeps your c-file. They have complete control over your claims-both old and new. What Berta has referred to about presumptive AO claims is a unique facet. AO claims based on nuances in the old Nehmer settlements have often been "brokered" to the Pennsylvania RO as their raters there have an excellent (joke) grip on the subject.

In this case, I suspect the Mississippi RO will be the arbiter. VA is not often in the habit of shipping your claim out, and hence your c-file back to an old RO simply to ascertain CUE in a prior decision. It is virtually always accomplished at the RO that services you. The evidence of the CUE, as well as JCRUR, are all accessible at the local RO. In fact, JCRUR has been around in one form or another under a panoply of different initials for decades. The problem is that VA is too lazy to request their services unless it goes up the appeals ladder. At that point, they beg for the Joint Motion for Remand to find out what they should have known years earlier. Duty to assist is a fig newton of the imagination for most of us. This is why I advocate for Vets to do their own records investigation or beg VA to access the JCRUR records. Once you go on record asking for that determination (JCRUR), if VA fails to do so, it becomes de facto failure of the duty to assist-but not before. It then falls into the category of arbitrary stupidity in the Reasons and Bases section. As benefit of the doubt and duty to assist are not CUE, it behooves you to build a record that ostensibly proves you asked for it and were ignored. Only then does it become fodder for CUE.

Side bet, Carlie--$20 says Jackson does the CUE.

a

cp

Edited February 19, 2014 by asknod

[63SIERRA]

Jacksons been hoping Cue got lost in the shuffle. SURPRISE!!!

[RodnAnn]

Just for a little more background info the reason for filing for CUE. It has to do with the basis for the 2008 decision. When that decision was made the VA actually said they based their decision on the fact that my husband was awarded the purple heart and they conceded this as proof of stressor. The award was listed on his DD214. In 2002, he had a diagnosis of PTSD by a VA doctor, and the rater had access to his DD214. Yet the decision said that his PTSD was not service connected. The new evidence submitted to re-open the claim in 2008 was award of bronze star with combat V.and statements of soldiers who fought in the battle that resulted in the award of the bronze star. That however was not listed as the basis for their decision in 2008.

[Berta]

“In July 2012 he filed for an EED on his 2008 award for PTSD( which at the time was at 30% ) to include C&UE & to extend back to 2002 .”

“My Vietnam veteran husband is at 50% SC for PTSD & has been since 2008.”

So you mean his rating in 2008 should have been 50% by virtue of medical evidence that the VA had in 2008.

The BVA mentioned a 1990 CUE as well.

Something seems Drastically wrong here, on VA's part.

“Yet the decision said that his PTSD was not service connected.” You mean the prior denials?

“The new evidence submitted to re-open the claim in 2008 was award of bronze star with combat V.and statements of soldiers who fought in the battle that resulted in the award of the bronze star.”

Did that result from his obtaining a DD 215?

“That however was not listed as the basis for their decision in 2008.” hard to figure this out without seeing those older decisions, 1990 and the 2002 decision.And the newer one.

“the VA actually said they based their decision on the fact that my husband was awarded the purple heart and they conceded this as proof of stressor. “ Say what?

Was the PH on his DD 214 when he filed the other 2 claims?

The Marine Corps didnt start to award the CAR until late 1969. Many vets who deserve it never got it but it is retroactive if they apply for it.

But a PH , like a CAR or CIB will cause the VA to conceded a stressor.

“The award was listed on his DD214. In 2002, he had a diagnosis of PTSD by a VA doctor, and the rater had access to his DD214. Yet the decision said that his PTSD was not service connected. “ That VA statement is beyond my comprehension, how they managed to deny.....

then again they pulled crap like that on me in the past and on many others here as well.

It sounds like a 38 CFR 4.6 evidentary legal error to me.

More info on that under a search here . I used that reg for my current CUE request and other CUE issues.

It is a Powerful weapon for us claimants who claim CUE, that violates this basis VA 101 regulation.

If you call tell me exactly when he served and his complete unit designation,I can look it up to see if he should have been awarded the Presidental Unit Citation.

My husband finally got his awards etc ,to include the PUC, on a DD 215, almost 40 years after his service, and a few months before he died.

We have searchable info here as to the DD 149 form lin which is needed to obtain a DD 215.

The PH....

Does he have any scarring left from that, and/or any muscular involvement from the GSW?

If so did he ever claim residuals on the GSW?

[Berta]

Sorry if I already asked.....

can you scan and attach the Reasons and Bases for those decisions here? (Cover the name, address, C file number)

I must admit this is quite a situation.......

To me it sounds GOLDEN for a CUE potential......but without seeing the decisions, I shouldn't even opine on it's potentials.

Is this the only thread you have here or did you post the R & Bs in another post?

R & B Reasons and Bases ..or VA Rhythm and blues written by illiterates.........

[FormerMember]

I think you can win it based on the Purple Heart alone. This may be the minority opinion among those here who opine on it, but a lot of claims on appeal to the CAVC for these types of CUE have hinged on JCRUR evidence being available. The Purple Heart cements the deal in that it automatically proves the 38 USC 1154(b) presumption of combat. Adding a BS with a V does not increase the probative quality of the original denial decision nor do the statements of buddies. The Purple Heart stands alone as testimonial to combat. There is no need to build on it to make the claim more believable. Saying the Bronze Star with V is the clincher doesn't stand up. Once you prove unequivocally that you've been in combat, you do not need to "puff it up" with more medals or statements to prove the 1154(b) presumption. In essence, they never gave you the 1154(b) presumption of combat and thus due process was denied. Once that presumption was in place, everything you said about what happened in combat is the unvarnished truth and VA has to accept it as gospel. They didn't and you lost ergo CUE. I do not think anyone would have a problem proving it would manifestly have changed the outcome. It's pretty cut and dried.

a

cp