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ptsd Cue Regs In Action
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Question
Berta
http://www.va.gov/vetapp07/files1/0706616.txt
"The crux of this case is that the claim was denied in June
1987 because according to the RO the veteran did not indicate
any "specific" stressors, and accordingly "specific"
stressors could not be verified. The RO acknowledged receipt
of the April 1987 letter from the US Army and Joint Services
Environmental Group, which informed the RO that the veteran
had been awarded the Army Commendation Medal for his actions
in Nicaragua after the December 1972 Managua Earthquake. The
attached citation noted that the Managua Earthquake had
resulted in "massive numbers of casualties"; that "[o]nce
arrived at the site, [the veteran's] help in establishing the
hospital insured its quick response to the medical needs of
the earthquake victims of Managua."
"The Board concludes that the RO's finding that the veteran
had not described "any specific stress related to your
experience in Nicaragua" is undebatably erroneous. The
veteran's January 1987 stressor statement graphically
described his stressor.
If the RO in fact required a specific incident, such was
inappropriate in light of evidence that the entire city was
virtually destroyed; tens of thousands of people were killed
or injured; and the veteran was undeniably involved in
setting up an emergency hospital to treat the victims."
"The Board finds as an initial matter that CUE has been pled
with specificity.
See Andre, supra."
"As explained in the law and regulations section above, CUE
involves more than mere misinterpretation of facts by an
adjudicator. Rather, the law must be misapplied to correct
and relevant facts; further, such error must be undebatable
and manifestly change the outcome of the issue."
The denial of this claim was misapplication of law in light of the overwhelming evidence and facts known to VA at time the CUE occurred.
This is a little different than most CUE claims but might help someone here.
"In a June 1987 rating decision, the RO stated that its
previous denial was being confirmed and continued because the
veteran "has not indicated any specific stressor related to
his experiences in Nicaragua." The veteran was informed of
that decision via a letter from the RO in July 1987. The
veteran did not appeal."
That is where the CUE occurred.
The Board noted:
"In an April 1987 letter (which was evidently not associated
with the veteran's claims folder until after the May 1987
rating decision), the US Army and Joint Services
Environmental Group informed the RO that the veteran had been
awarded the Army Commendation Medal for his actions in
Nicaragua after the December 1972 Managua Earthquake.
Attached was a copy of the Army Commendation meal and a copy
of the citation. The citation, in essence, noted that the
Managua Earthquake had resulted in "massive numbers of
casualties"; that "[o]nce arrived at the site, [the
veteran's] help in establishing the hospital insured its
quick response to the medical needs of the earthquake victims
of Managua."
and added:
[The Board takes judicial notice that approximately 4,000 to
6,000 people were estimated to have been killed in the
earthquake; 20,000 injured; and 250,000 were rendered
homeless.]"
This is a very detailed decision and I never saw a CUE like this-
The CUE produced 13 years of retro PTSD SC for this veteran.
"ORDER
The June 1987 decision denying the veteran's claim of
entitlement to service connection for PTSD was the product of
CUE. An effective date of June 11, 1986 is assigned for
service connection for PTSD. The appeal is allowed to that
extent." BVA March 2007
The veteran subsequently re-open his claim for PTSD in Dec 1999 which was granted with an EED to Dec 1999.
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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