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Significant Rule For Ptsd Veteran

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Today I traveled to the Court of Federal Claims in Washington DC to review a file regarding a PTSD Claimant. The Case is as follows:

In the United States Court of Federal Claims

No. 04-1727 C

Filed: June 30, 2006

_____________________________________

))

HAROLD E. SIX, SR., ))

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

_____________________________________ )

William J. Kenney, Washington, DC, for plaintiff.

James D. Colt, with whom were Peter D. Keisler, Assistant Attorney General, David M.

Cohen, Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, Washington, DC, for defendant.

OPINION

HEWITT, Judge

Plaintiff, who states that he is the sole Processing and Reporting Room survivor of

a torpedo attack on the U.S.S. Liberty while it was stationed off the coast of Gaza during

the June 1967 Six-Day War between Israel and Arab forces, Administrative Record (AR)

at 124, seeks correction of his naval records to reflect disability retirement on the basis of

post-traumatic stress disorder (PTSD) and the back pay, allowances, and benefits that

would flow therefrom, Compl. at 1-2, 36-37. Plaintiff contends that, at the time of his

discharge on February 6, 1973, he was suffering from PTSD and entitled to a 70%

disability rating on the basis of symptoms caused by or aggravated by PTSD, Compl. at

34-35; AR at 82, 99, that the Navy should have transferred plaintiff to the Temporary

Disability Retired List on February 6, 1973 in lieu of discharge and thereafter conferred

on him permanent disability retirement status, Compl. at 37; AR at 82

You can review the entire case on the Court of Federal Claims Website. To highlight a few of the points, Six was involved in an attack on his ship in 1967 and was the sole survivor of a torpedo attack on his area of the ship. Afterwards he had a break down and his career suffered. After ten years in the navy he was discharged because the SP's were being called to his home; financial difficulties; alcohol problems; assaults on his family and his TS was revoked.

In 1999, the VA awarded him a 70 percent rating for PTSD. He then applied to the NBCMR for retirement to his date of discharge. The NBCMR denied his request. He then filed suit as is his right in the Court of Federal Claims. The United STates moved to dismiss claiming that the statute of limitations under the Tucker Act expires six years after discharge. However, in Ruling in Six's favor, the Court said that he was seeking remedy under Title 10 USC 1201, which does not have a statute of limitations. Because of this, he was allowed to seek damages from the United States.

The COurt held in a number of rulings that the US had an obligation to treat Six for PTSD while he was on active duty even though he did not seek help for the disorder and had informed the phsycians in the ETS physical that he had no signs of headaches, depression, problems sleeping, alcohol use, and other symptoms of Depression or PTSD but they failed to do so. They simply eliminated him from the Navy. In the alternative, the court said that the government if it could not treat him, must retire him. The court ruled that Six is entitled to retirement to the date of his discharge. The United States Attorney did not appeal.

Of significance here, is the courts edict that Section 1201 confers no statute of limitations for an attack on the elgibility of retirement or a reinstatement to a particular duty status.

Further, and this is the really significant part before you can get into COFC, you MUST have been discharged. Simply ending your tour of duty through an expiration of your contract is insifficient. The discharge must have involuntary

Berta, perhaps you can read this and chime in. I think this might be an opportunity for PTSD vets at least those who were involuntarily discharged, to seek military retirement through the ABCMR, NBCMR, etc. mentioning this case which I am appending here as a link. I would really like to hear some thoughts. WHile the opinion here posted is one directing remand, the court file shows that the BCNR did place him on the retired rolls as of the date of his discharge and the money was to be calculated by Navy Finance. The file at the COurt does not contain an exact dollar amount, but I imagine it is sizeable.

Below is the link to the opinion of 2006.

http://www.uscfc.uscourts.gov/Opinions/Hew....Six.063006.pdf

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VERY interesting- these types of cases get into some very unusual areas of rule of law-

I will snoop around tomorrow and try to find the BCMR response to all this- as this case gave them a time period -which is over to rebutt-

The one you posted is similiar to a case that is in the VBM 2006 edition page 1493.

Bad paper discharge changed to medical retirement-

also another case Vietnam vet with schizophenia with an UD.

Since the diagnosis came shortly after discharge, that was one thing in favor if SC but the awol matter was another-

This veteran applied to the VA for a character of discharge determination and the VA found he was insane at time of awol-he didnt win via the BCMR-he did succeed at the VA level to have his UD changed.

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Thanks Berta, I will say one thing. It does appear from reading the transcripts of the trial that the COurt was very sympathetic to him. The BCMR however, constantly called him and all of his witnesses less than credible. it was as if the BCMR chose to look at the facts one way calling everyone of his witnesses less than credible, while the court found them credible. Had this serviceman not found a lawyer who agreed to take his case on for free, he never would have prevailed. Further, the COurt in the file bent over backwards for the Plaintiff allowing late filings, copies of internet articles and such into the court hearing without a whole lot of authentication. Although the lawyer who represented him has an office in DC he really works out of Charlotte, NC. His complaint with no attachments was over 40 pages long. Of the seven Military Pay Act cases that I looked at where the Administrative Boards found against the Service Member, the COFC found in favor of three of them deciding the results of the Boards was arbitrary, capricious and without legal justification. This might be an avenue to secure a retro active date IF you are involuntarily discharged and found to have PTSD as established by a Psychiatrist which the physician says was present at the time of discharge or before. The BCMR ruled that he did not have PTSD even though the VA said he did claiming this was not "probative" of the disorder because (and this is an old story) he had a rough childhood and because of that developed personality disorders. This was the only PTSD case on the board in the entire COFC. WHile the court gave no weight to the SM's Discharge Physical even though it said he did not report headaches, sleep problems, or any of the hallmark traits for PTSD it would be helpful if the physical has these things.

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  • HadIt.com Elder

Even getting a good paper discharge changed into a medical discharge with a pension is almost impossible. I tried it and you want to talk about a stacked deck. If it has been more than a couple of years since your discharge you have to get over the time limits for filing this appeal. All the board has to do is just invoke the 3 year time limit for filing and you are dead meat. You must have a lawyer to even have a slim chance of winning. I think only one or two percent of those who appeal their discharges with money involved ever win.

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John, the whole purpose behind 10 USC 1201, is that the statute of limitations starts to run for purposes of court jurisdiction on the date the Admin Board, for example ABCMR renders a decision. You could file for the disability 30 years later as in this case, and that is part of the Navy's argument, that the three year rule applied. But the court doesnt see it that way. They see 1201 as a money mandating statute which the Board must defer to even if it is over three years. What the US Attorney seems to be doing is then asking the court to deny the case on the DOctrine of Laches, which in each of the decisions where a military person brought suit, the court denied. The showing for the Government to prevail on Laches requires that the veteran knew of his illness, and that he intentionally concealed it from the Board and failed to bring it to thier attention for the purposes of making a stale claim better than at the time of discharge. That is a very high burden. The Government must prove both elements in order to prevail. How many of us can truthfully say that when we started experiencing these symptoms we knew of our illness? I bet none of them do. They might have thought something was wrong, but that doesnt equate to "knowing that you suffer from PTSD". In SIx's case he knew he had problems but indicated on his discharge physical that he had none of the hallmark PTSD symptoms. I dont know what the outcome of this will be, but I will bet that in the final analysis he will prevail whether it is with the courts of the Boards.

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  • HadIt.com Elder

Very interesting case. I've wanted to pursue a claim that the Army should have retired me as disabled rather than just discharging me at the end of my enlistment. I was discharged in 2/68 and looking back had all the classic signs of PTSD, including a near fatal suicide attempt in 4/71.

One thing I think is a problem is that PTSD was not an accepted psychiatric diagnosis until 1980. How does one get around that?

pr

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Phillip,

I think Six was discharged in 1971 also. That was not an impediment in his case either. the court noted that PTSD was not recognized at that time but still permitted him to seek redress.

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