Appeals Management Center (amc)

[Wings]

January 31, 2009

RE: 397/AMC

CC: Board of Veterans Appeals

VA File No. xxx-xx-xxxx

BVA Docket No. xx-xx xxx

First Name Last Name

Sreet Address

City, State, Zip code

Tel. Number

Department of Veterans Appeals

Appeals Management Center

1722 Eye Street NW

Washington DC 20421

First Name, Last Name, Pro Se

NOTICE OF DISAGREEMENT (NOD) (6 pages)(evidence attached)

OK, I left it on the web long enough. I work hard to keep my ID protected on the internet. ... I don't like those internet spiders that crawl the web for free information. Thanks everybody for your comments and positive vibes!! ~Wings

Edited February 5, 2009 by Wings

[Wings]

Free, I sent my NOD on the 4th and still have no confirmation of delivery (certified). Already, since mailing, I see holes in my claim that could have been further developed. I am reading old cases at the Court (CAVC), going back as far as the search engines will allow to identitfy similiar claims. I'm trying to prepare myself, in case I need to go to the Court. ~Wings

About the Web Spiders:

A Web crawler (also known as a Web spider, Web robot, or—especially in the FOAF community—Web scutter[1]) is a program or automated script that browses the World Wide Web in a methodical, automated manner. Other less frequently used names for Web crawlers are ants, automatic indexers, bots, and worms. This process is called Web crawling or spidering. Many sites, in particular search engines, use spidering as a means of providing up-to-date data. Web crawlers are mainly used to create a copy of all the visited pages for later processing by a search engine that will index the downloaded pages to provide fast searches. Crawlers can also be used for automating maintenance tasks on a Web site, such as checking links or validating HTML code. Also, crawlers can be used to gather specific types of information from Web pages, such as harvesting e-mail addresses (usually for spam).

[Wings]

x

x

x

BVA 1-800 number said they had made a decision on my claim, and that decision went out in the mail today. I doubt they bothered to associate this evidence with my claims file, since they lost it several times and made me miss the 30 day deadline. I said I would re-post it when they made a decision. I should get it in the mail in about a week. ~Wings

Department of Veterans Appeals

Appeals Management Center

1722 Eye Street NW

Washington DC 20421

CC: Board of Veterans Appeals

Veteran, Pro Se

NOTICE OF DISAGREEMENT (NOD) (6 pages)(evidence attached)

The veteran, expressly "waives" prior review of this Notice of Disagreement by the Appeals Management Center (AMC); and asks that the case be returned to the Board of Veterans Appeals (BVA) for further review.

SUBJECT: Formal Notice of Disagreement with the Appeals Management Center's (AMC) Decision dated 12-01-08. The AMC Decision and SSOC were mailed to the veteran, 1-13-09.

ISSUE: Entitlement to an effective date prior to January 25, 1999 for the grant of service-connection for post-traumatic stress disorder (PTSD)

INTRODUCTION: See the BVA REMAND, 8-21-08

BACKGROUND: See veteran's Submission of Additional Evidence to the Board of Veterans' Appeals (6-02-08, 28 pages)

The BVA Remand

The 8-21-08, BVA Remand instructed the AMC to adjudicate the veteran's CUE claim. Only thereafter, was the AMC to adjudicate the Issue of Earlier Effective Date for Post Traumatic Stress Disorder, as "inextricably intertwined" with the CUE claim. Detailed on page -2- of their Remand, the BVA rightly explains the claim of CUE in two parts: "Specifically, she argued that the finding that she had a dishonorable period of service and that a failure to notify her of the August 31, 1988 decision were CUE."

The AMC Adjudication of the CUE Claim

The 12-01-08, AMC Decision did Concede CUE in that, " ... the Department of Veterans Affairs did not notify the veteran that an August 31, 1988, Administrative Decision found the veteran had a dishonorable period of service from October 13, 1984 to November 21, 1986."

However, the 12-01-08, AMC Decision did not adjudicate the second part of the CUE claim, in that, the 8-31-88 Administrative Decision found a Bar to VA Benefits. Therefore, the AMC has not completed adjudication of the CUE claim, per BVA Remand instructions.

The 12-01-08, AMC Decision did concede CUE; but then they improperly reasoned, that this CUE was not outcome determinative; in that "... no other rating decision was impacted by this clear and unmistakable error." Here, the AMC misapplies the CUE statute and repeats the same clear error(s) that were committed in the 8-31-88 VA Administrative Decision.

The Failure to provide Notice of the 8-31-88 VA Administrative Decision (finding a Dishonorable Discharge and Bar to VA Benefits) was not a harmless error. The failure to provide Appellate Rights was not a harmless error. The failure to provide Notice of Entitlement to VA Health Care and related benefits was not a harmless error. These clear and unmistakable administrative errors obstructed Justice, and all were prejudiced against the effective date of the rating decision for Post Traumatic Stress Disorder (PTSD).

"The government's interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them." Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006). Where the

12-01-08, AMC Decision reasoned that, "No other rating decision was impacted by this CUE", such a decision ignores the above ruling. Justice involves more than specific rating decisions.

Moreover, the veteran has Sworn she filed a VA Benefits Claim, including a Disability Claim as early as one month post military discharge. Although the VA states it did not receive the PTSD claim earlier than December 1999, it can not prove that it was not submitted, nor that they did not receive it; especially where the presumption of regularity has already been rebutted by the veteran's CUE claim (with the AMC conceding); in that the VA did not send Notice of the 8-31-88 Decision, Nor provide appellate rights, Nor provide Notice of VA Health Care entitlement.

Accordingly, the CUE statute is found in 38 USC 5109A. Revision of decisions on grounds of clear and unmistakable error. This law provides; that (a) if the evidence establishes the error, then the prior decision shall be reversed or revised, and (b) A decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

The Code of Federal Regulations states that: CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error (38 CFR 20.1403(a)(2001)). CUE claims must be pled with specificity (Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed. Cir. 2005)), and must assert, based upon the evidence of record at the time of the original decision, the error was "outcome determinative" (Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc)).

Finding CUE, the AMC would be required to cure the defect(s), and provide contemporary notice of that 8-31-88 VA Administrative Decision, as if it were August 31, 1988. As if time stood still.

Note: On a CUE motion, an appellant may make new arguments on remand. See Jordan v. Principi, 17 Vet.App. 261, 271 (2003) (holding that the CUE procedure "is broad enough to allow an appellant to rephrase and provide additional argument and support for the same basic CUE argument presented before the Board.").

Appellate Rights Are Sovereign

Falling on the heels of that failure to provide notice of the 8-31-88 VA Decision, was that relative due process error: failure to provide Appellate Rights. Notification of appellate rights is required by statute, 38 USC 5104(a). The veterans argues, that because she never received notice of the 8-31-88 Decision, Nor her rights to appeal that Decision, then that 8-31-88 Administrative Decision remains open and non-final. A decision may be rendered non-final when, "the time for appealing either an RO or a Board decision did not run where the [secretary] failed to provide the veteran with information or material critical to the appellate process." Ingram v. Nicholson, 21 Vet.App. 232, 241 (2007) (Cook, 318 F.3d at 1340 (discussing Tablazon, Hauck, Kuo, and Ashley, all infra).

The Court of Appeals for Veterans Claims has consistently held that absent the inclusion of a statement of appellate rights, those RO decisions remain pending; and the time for filing a Notice of Disagreement (NOD) remains tolled. See 38 USC 5104(a) (requiring VA to provide a claimant with notice of a decision, including "an explanation of the procedure for obtaining review of the decision"); 38 CFR 3.103(b) (2005) (requiring notice of appellate rights); Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) ("[W]here VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the Court."); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (per curiam order) (where the appellant never received notification ... the one-year period within which to file an NOD as to that decision did not begin to run).

Accordingly, the 8-31-88, VA Administrative Decision, deciding Dishonorable Discharge and Bar to VA Benefits remains an open and non-final claim; and the time for filing a Notice of Disagreement remains tolled as of 8-31-88. Not until the veteran has been properly notified of the 8-31-88 VA Administrative Decision, and finally provided Appellate Rights (also dated 8-31-88), then will VA adjudication procedures clearly bring the veteran's Claim for Earlier Effective Date to light.

CUE Claim Can Not Rest upon a Non-Final Decision

Because the 8-31-88, VA Administrative Decision was non-final for the purposes of Appeal, then "The request for revision on the basis of CUE cannot lie as to the prior decision that is still open to direct review." CAVC, No. 04-0948, Gehl v. Nicholson (2006); Gates v. Nicholson, 19 Vet.App. 376, 377 (2005); (CAVC, No. 03-2100, Richardson v. Nicholson (2006)) (Judge Moorman, concurring, "It is clear that there must be a finding that there is a final decision as to a claim before a revision based on CUE will lie"); May v. Nicholson, 19 Vet.App. 310, 314-19 (2005); Link v. West, 12 Vet.App. 39, 45 (1998); Best v. Brown, 10 Vet.App. 322, 325 (1997).

The Rule of Prejudicial Error

Where the 12-01-08, AMC Decision has reasoned that, "No other rating decision was impacted by this CUE", the veteran whole-heartedly disagrees. Where the

12-01-08 AMC Decision has conceded CUE; in that 8-31-88, RO Administrative Decision failed to procedurally comply with statutorily mandated requirements, then the Court (CAVC) must take due account of the rule of prejudicial error. 38 USC 7261(b)(2). See CAVC No. 03-00320, Dunlap v. Nicholson (2007). A procedural or substantive error is prejudicial when the error affects a substantial right that a statutory or regulatory provision was designed to protect. Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004); Mayfield v. Nicholson, 444 F.3d 1328, 1337 (Fed. Cir. 2006).

The veteran has argued, that the 8-31-88, VA Administrative Decision failed to comply with statutory and regulatory provisions, and consequently prejudiced the effective date of the Rating Decision for Post Traumatic Stress Disorder and Total Disability for Individual Unemployability. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (where a decision on one issue would have a "significant impact" upon another, claims are inextricably intertwined).

The 8-21-08, BVA Remand conceded: the veteran's claims are "inextricably intertwined".

NOTE: Where the 8-31-88, VA Administrative Decision remains open and non-final, then the Notice Provisions of Veterans Claims Assistance Act (VCAA) are applicable to the matter at issue.

Benefit of the Doubt

The veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation (AB v. Brown). The veteran has "sworn", that she submitted a formal or informal VA Benefits Claim, including a Disability Claim, within weeks of military discharge; but that her claim for veteran "status" superseded any other claim of record: hence, the undebatable significance of the fatally flawed 8-31-88 RO Administrative Decision. "A person seeking VA benefits must first establish by a preponderance of the evidence that the service member has attained the status of veteran." Holmes v. Brown, 10 Vet.App. 38, 40 (1997); see also Laruan v. West, 11 Vet.App. 80, 85 (1998) (en banc); Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991). There was then, as now, No Duty To Assist a veteran who had not attained veteran "status". The veteran's original DD-214 would show a single period of service, ending in Other Than Honorable Conditions; furthering the veteran's argument, that she had no actual knowledge of her veteran "status"; Nor was she ever provided actual Notice of her veteran "status"; not until a verbal hearsay, by an VAMC Psychiatric Nurse, Judith Glass, 1997.

The 12-01-08, AMC Decision ignores evidence submitted by the veteran in support of her Appeal. See prior Submission of Additional Evidence to the Board of Veterans' Appeals (6-02-08, 28 pages). Most notably, are the (previously submitted) CA-5 Forms; together with Veterans Service Office, Administrative Letter (2005) showing and confirming: the veteran's "Claim Being Reviewed" within 4 months of military discharge.

The original CA-5 Form shows the veteran's signature date of December 1986. The original CA-5 Form shows "Claim Being Reviewed", dated March 1987. "Claim Being Reviewed" meant that, "It ha[d] been determined that a claim or some other form of action was already pending at the Veterans Administration (VA) when the inquiry [CA-5] was received [March 25, 1987]."

New evidence attached, will show the administrative use of the CA-5 Form. Moreover, the CA-5 Forms will evidence Unemployability, as applicable to the original claim for veterans benefits. See also Social Security Income Statements, previously submitted in support of her Appeal. The Benefit of the Doubt Doctrine would attach to all of the evidence in support of the veterans appeal. See 38 USC 5107(b); and 38 CFR 3.102 Reasonable doubt.

Additional Notice Deficiencies

In addition to that failure to provide Notice of the 8-31-88 Decision (together with Appellate Rights), was that failure to provide Notice of Entitlement to VA Health Care and related benefits (VA Manual, M21-1MR Part 3, Subpart v, Section B 5(d); (formally M21-1, Part IV, Chapter 11.01 Special Determinations and Administrative Decisions)); substantially regulating then, as now, that ". . . any claim requiring adjudication of Character of Discharge is also a Claim for Entitlement to VA Health Care and related benefits." See 38 CFR 3.360 (43 FR 15154, Apr. 11, 1978).

The veteran was as entitled to receive Notice (8-31-88), as she was to receive VA Medical Care for her service-connected, rape-related PTSD; (noted at military discharge examination (with questionnaire attachment) as Depression (1982-1983), Adjustment Disorder (1985-1986); Sleeping Difficulties, Chest Pain, Racing Heart, Abdominal Pain, Female GYN Problems, Lack of Concentration, Excessive Worry, etc.).

A rule is substantive in nature when it "has the force of law and narrowly limits administrative action." Carter v. Cleland, 643 F.2d 1,8 (D.C. Cir. 1980); Guardian Federal Savings & Loan Ass'n v. FSLIC, 589 F. 2d 658, 666-67 (D.C. Cir. 1978). The US Court of Appeals for Veterans Claims has consistently held that VA is not free to ignore its own regulations. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991); Akles v. Derwinski, 1 Vet.App. 118, 120-21 (1991); Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). The Court has stated, "Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures", Morton, 415 U.S. at 235; Service v. Dulles, 354 U.S. 363 (1957); Vitarelli v. Seaton, 359 U.S. 535 (1959); Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990).

Pro Se Veterans

In proceedings before the BVA, "the relationship between the veteran and the government is non-adversarial and pro-claimant," Jaquay v. Principi, 304 F.3d

1276, 1282 (Fed. Cir. 2002). ("Congress has created a paternalistic veterans' benefits system to care for those who served their country in uniform.") (Jaquay, 304 F.3d at 1280) Because of the paternalistic nature of the proceedings, the board, like the RO, is required "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits." McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008). The VA "has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have." Jaquay, 304 F.3d at 1280. The need for such assistance is particularly acute where, as here, a veteran is afflicted with a significant psychological disability at the time he files his appeal. Comer v. Peake, No. 2008-7013 (Fed. Cir. 1/16/2009).

38 CFR 20.202 specifically provides that the board is required to construe an appellant's arguments "in a liberal manner for purposes of determining whether they raise issues on appeal." See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) ("[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record.") See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims."); Forshey, 284 F.3d at 1357 ("n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.").

Conclusion

Where the 8-31-88, VARO Administrative Decision was Non-Final for the purposes of Appeal to the Court, then the 12-01-01 AMC Decision should be Vacated, and the matters returned to the Board for further review. On Appeal, the veteran continues the Claimed Earlier Effective Date for Post Traumatic Stress Disorder (PTSD), and Total Disability based on Individual Unemployability (TDIU), as can be confirmed by Social Security employment records, of record.

Sworn Testimony

I solemnly swear by oath or affirmation that the statements made herein are true and correct to the best of my ability, recollection, education and experience. I further understand the pain and penalty of perjury, and have not spoken falsely.

Vet's Name

January 31, 2009

[halos2]

Thanks wings for posting this, as I mised reading it by a few minutes when post was pulled. I hope they were favorable with their decision. Did this seem very fast to you? It did to me, but I sincerely hope you favored well.

x

x

x

BVA 1-800 number said they had made a decision on my claim, and that decision went out in the mail today. I doubt they bothered to associate this evidence with my claims file, since they lost it several times and made me miss the 30 day deadline. I said I would re-post it when they made a decision. I should get it in the mail in about a week. ~Wings

Department of Veterans Appeals

Appeals Management Center

1722 Eye Street NW

Washington DC 20421

CC: Board of Veterans Appeals

Veteran, Pro Se

NOTICE OF DISAGREEMENT (NOD) (6 pages)(evidence attached)

The veteran, expressly "waives" prior review of this Notice of Disagreement by the Appeals Management Center (AMC); and asks that the case be returned to the Board of Veterans Appeals (BVA) for further review.

SUBJECT: Formal Notice of Disagreement with the Appeals Management Center's (AMC) Decision dated 12-01-08. The AMC Decision and SSOC were mailed to the veteran, 1-13-09.

ISSUE: Entitlement to an effective date prior to January 25, 1999 for the grant of service-connection for post-traumatic stress disorder (PTSD)

INTRODUCTION: See the BVA REMAND, 8-21-08

BACKGROUND: See veteran's Submission of Additional Evidence to the Board of Veterans' Appeals (6-02-08, 28 pages)

The BVA Remand

The 8-21-08, BVA Remand instructed the AMC to adjudicate the veteran's CUE claim. Only thereafter, was the AMC to adjudicate the Issue of Earlier Effective Date for Post Traumatic Stress Disorder, as "inextricably intertwined" with the CUE claim. Detailed on page -2- of their Remand, the BVA rightly explains the claim of CUE in two parts: "Specifically, she argued that the finding that she had a dishonorable period of service and that a failure to notify her of the August 31, 1988 decision were CUE."

The AMC Adjudication of the CUE Claim

The 12-01-08, AMC Decision did Concede CUE in that, " ... the Department of Veterans Affairs did not notify the veteran that an August 31, 1988, Administrative Decision found the veteran had a dishonorable period of service from October 13, 1984 to November 21, 1986."

However, the 12-01-08, AMC Decision did not adjudicate the second part of the CUE claim, in that, the 8-31-88 Administrative Decision found a Bar to VA Benefits. Therefore, the AMC has not completed adjudication of the CUE claim, per BVA Remand instructions.

The 12-01-08, AMC Decision did concede CUE; but then they improperly reasoned, that this CUE was not outcome determinative; in that "... no other rating decision was impacted by this clear and unmistakable error." Here, the AMC misapplies the CUE statute and repeats the same clear error(s) that were committed in the 8-31-88 VA Administrative Decision.

The Failure to provide Notice of the 8-31-88 VA Administrative Decision (finding a Dishonorable Discharge and Bar to VA Benefits) was not a harmless error. The failure to provide Appellate Rights was not a harmless error. The failure to provide Notice of Entitlement to VA Health Care and related benefits was not a harmless error. These clear and unmistakable administrative errors obstructed Justice, and all were prejudiced against the effective date of the rating decision for Post Traumatic Stress Disorder (PTSD).

"The government's interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them." Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006). Where the

12-01-08, AMC Decision reasoned that, "No other rating decision was impacted by this CUE", such a decision ignores the above ruling. Justice involves more than specific rating decisions.

Moreover, the veteran has Sworn she filed a VA Benefits Claim, including a Disability Claim as early as one month post military discharge. Although the VA states it did not receive the PTSD claim earlier than December 1999, it can not prove that it was not submitted, nor that they did not receive it; especially where the presumption of regularity has already been rebutted by the veteran's CUE claim (with the AMC conceding); in that the VA did not send Notice of the 8-31-88 Decision, Nor provide appellate rights, Nor provide Notice of VA Health Care entitlement.

Accordingly, the CUE statute is found in 38 USC 5109A. Revision of decisions on grounds of clear and unmistakable error. This law provides; that (a) if the evidence establishes the error, then the prior decision shall be reversed or revised, and (;) A decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

The Code of Federal Regulations states that: CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error (38 CFR 20.1403(a)(2001)). CUE claims must be pled with specificity (Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed. Cir. 2005)), and must assert, based upon the evidence of record at the time of the original decision, the error was "outcome determinative" (Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc)).

Finding CUE, the AMC would be required to cure the defect(s), and provide contemporary notice of that 8-31-88 VA Administrative Decision, as if it were August 31, 1988. As if time stood still.

Note: On a CUE motion, an appellant may make new arguments on remand. See Jordan v. Principi, 17 Vet.App. 261, 271 (2003) (holding that the CUE procedure "is broad enough to allow an appellant to rephrase and provide additional argument and support for the same basic CUE argument presented before the Board.").

Appellate Rights Are Sovereign

Falling on the heels of that failure to provide notice of the 8-31-88 VA Decision, was that relative due process error: failure to provide Appellate Rights. Notification of appellate rights is required by statute, 38 USC 5104(a). The veterans argues, that because she never received notice of the 8-31-88 Decision, Nor her rights to appeal that Decision, then that 8-31-88 Administrative Decision remains open and non-final. A decision may be rendered non-final when, "the time for appealing either an RO or a Board decision did not run where the [secretary] failed to provide the veteran with information or material critical to the appellate process." Ingram v. Nicholson, 21 Vet.App. 232, 241 (2007) (Cook, 318 F.3d at 1340 (discussing Tablazon, Hauck, Kuo, and Ashley, all infra).

The Court of Appeals for Veterans Claims has consistently held that absent the inclusion of a statement of appellate rights, those RO decisions remain pending; and the time for filing a Notice of Disagreement (NOD) remains tolled. See 38 USC 5104(a) (requiring VA to provide a claimant with notice of a decision, including "an explanation of the procedure for obtaining review of the decision"); 38 CFR 3.103(B) (2005) (requiring notice of appellate rights); Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) ("[W]here VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the Court."); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (per curiam order) (where the appellant never received notification ... the one-year period within which to file an NOD as to that decision did not begin to run).

Accordingly, the 8-31-88, VA Administrative Decision, deciding Dishonorable Discharge and Bar to VA Benefits remains an open and non-final claim; and the time for filing a Notice of Disagreement remains tolled as of 8-31-88. Not until the veteran has been properly notified of the 8-31-88 VA Administrative Decision, and finally provided Appellate Rights (also dated 8-31-88), then will VA adjudication procedures clearly bring the veteran's Claim for Earlier Effective Date to light.

CUE Claim Can Not Rest upon a Non-Final Decision

Because the 8-31-88, VA Administrative Decision was non-final for the purposes of Appeal, then "The request for revision on the basis of CUE cannot lie as to the prior decision that is still open to direct review." CAVC, No. 04-0948, Gehl v. Nicholson (2006); Gates v. Nicholson, 19 Vet.App. 376, 377 (2005); (CAVC, No. 03-2100, Richardson v. Nicholson (2006)) (Judge Moorman, concurring, "It is clear that there must be a finding that there is a final decision as to a claim before a revision based on CUE will lie"); May v. Nicholson, 19 Vet.App. 310, 314-19 (2005); Link v. West, 12 Vet.App. 39, 45 (1998); Best v. Brown, 10 Vet.App. 322, 325 (1997).

The Rule of Prejudicial Error

Where the 12-01-08, AMC Decision has reasoned that, "No other rating decision was impacted by this CUE", the veteran whole-heartedly disagrees. Where the

12-01-08 AMC Decision has conceded CUE; in that 8-31-88, RO Administrative Decision failed to procedurally comply with statutorily mandated requirements, then the Court (CAVC) must take due account of the rule of prejudicial error. 38 USC 7261(B)(2). See CAVC No. 03-00320, Dunlap v. Nicholson (2007). A procedural or substantive error is prejudicial when the error affects a substantial right that a statutory or regulatory provision was designed to protect. Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004); Mayfield v. Nicholson, 444 F.3d 1328, 1337 (Fed. Cir. 2006).

The veteran has argued, that the 8-31-88, VA Administrative Decision failed to comply with statutory and regulatory provisions, and consequently prejudiced the effective date of the Rating Decision for Post Traumatic Stress Disorder and Total Disability for Individual Unemployability. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (where a decision on one issue would have a "significant impact" upon another, claims are inextricably intertwined).

The 8-21-08, BVA Remand conceded: the veteran's claims are "inextricably intertwined".

NOTE: Where the 8-31-88, VA Administrative Decision remains open and non-final, then the Notice Provisions of Veterans Claims Assistance Act (VCAA) are applicable to the matter at issue.

Benefit of the Doubt

The veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation (AB v. Brown). The veteran has "sworn", that she submitted a formal or informal VA Benefits Claim, including a Disability Claim, within weeks of military discharge; but that her claim for veteran "status" superseded any other claim of record: hence, the undebatable significance of the fatally flawed 8-31-88 RO Administrative Decision. "A person seeking VA benefits must first establish by a preponderance of the evidence that the service member has attained the status of veteran." Holmes v. Brown, 10 Vet.App. 38, 40 (1997); see also Laruan v. West, 11 Vet.App. 80, 85 (1998) (en banc); Aguilar v. Derwinski, 2 Vet.App. 21, 23 (1991). There was then, as now, No Duty To Assist a veteran who had not attained veteran "status". The veteran's original DD-214 would show a single period of service, ending in Other Than Honorable Conditions; furthering the veteran's argument, that she had no actual knowledge of her veteran "status"; Nor was she ever provided actual Notice of her veteran "status"; not until a verbal hearsay, by an VAMC Psychiatric Nurse, Judith Glass, 1997.

The 12-01-08, AMC Decision ignores evidence submitted by the veteran in support of her Appeal. See prior Submission of Additional Evidence to the Board of Veterans' Appeals (6-02-08, 28 pages). Most notably, are the (previously submitted) CA-5 Forms; together with Veterans Service Office, Administrative Letter (2005) showing and confirming: the veteran's "Claim Being Reviewed" within 4 months of military discharge.

The original CA-5 Form shows the veteran's signature date of December 1986. The original CA-5 Form shows "Claim Being Reviewed", dated March 1987. "Claim Being Reviewed" meant that, "It ha[d] been determined that a claim or some other form of action was already pending at the Veterans Administration (VA) when the inquiry [CA-5] was received [March 25, 1987]."

New evidence attached, will show the administrative use of the CA-5 Form. Moreover, the CA-5 Forms will evidence Unemployability, as applicable to the original claim for veterans benefits. See also Social Security Income Statements, previously submitted in support of her Appeal. The Benefit of the Doubt Doctrine would attach to all of the evidence in support of the veterans appeal. See 38 USC 5107(B); and 38 CFR 3.102 Reasonable doubt.

Additional Notice Deficiencies

In addition to that failure to provide Notice of the 8-31-88 Decision (together with Appellate Rights), was that failure to provide Notice of Entitlement to VA Health Care and related benefits (VA Manual, M21-1MR Part 3, Subpart v, Section B 5(d); (formally M21-1, Part IV, Chapter 11.01 Special Determinations and Administrative Decisions)); substantially regulating then, as now, that ". . . any claim requiring adjudication of Character of Discharge is also a Claim for Entitlement to VA Health Care and related benefits." See 38 CFR 3.360 (43 FR 15154, Apr. 11, 1978).

The veteran was as entitled to receive Notice (8-31-88), as she was to receive VA Medical Care for her service-connected, rape-related PTSD; (noted at military discharge examination (with questionnaire attachment) as Depression (1982-1983), Adjustment Disorder (1985-1986); Sleeping Difficulties, Chest Pain, Racing Heart, Abdominal Pain, Female GYN Problems, Lack of Concentration, Excessive Worry, etc.).

A rule is substantive in nature when it "has the force of law and narrowly limits administrative action." Carter v. Cleland, 643 F.2d 1,8 (D.C. Cir. 1980); Guardian Federal Savings & Loan Ass'n v. FSLIC, 589 F. 2d 658, 666-67 (D.C. Cir. 1978). The US Court of Appeals for Veterans Claims has consistently held that VA is not free to ignore its own regulations. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991); Akles v. Derwinski, 1 Vet.App. 118, 120-21 (1991); Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). The Court has stated, "Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures", Morton, 415 U.S. at 235; Service v. Dulles, 354 U.S. 363 (1957); Vitarelli v. Seaton, 359 U.S. 535 (1959); Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990).

Pro Se Veterans

In proceedings before the BVA, "the relationship between the veteran and the government is non-adversarial and pro-claimant," Jaquay v. Principi, 304 F.3d

1276, 1282 (Fed. Cir. 2002). ("Congress has created a paternalistic veterans' benefits system to care for those who served their country in uniform.") (Jaquay, 304 F.3d at 1280) Because of the paternalistic nature of the proceedings, the board, like the RO, is required "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits." McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008). The VA "has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have." Jaquay, 304 F.3d at 1280. The need for such assistance is particularly acute where, as here, a veteran is afflicted with a significant psychological disability at the time he files his appeal. Comer v. Peake, No. 2008-7013 (Fed. Cir. 1/16/2009).

38 CFR 20.202 specifically provides that the board is required to construe an appellant's arguments "in a liberal manner for purposes of determining whether they raise issues on appeal." See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) ("[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record.") See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims."); Forshey, 284 F.3d at 1357 ("n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.").

Conclusion

Where the 8-31-88, VARO Administrative Decision was Non-Final for the purposes of Appeal to the Court, then the 12-01-01 AMC Decision should be Vacated, and the matters returned to the Board for further review. On Appeal, the veteran continues the Claimed Earlier Effective Date for Post Traumatic Stress Disorder (PTSD), and Total Disability based on Individual Unemployability (TDIU), as can be confirmed by Social Security employment records, of record.

Sworn Testimony

I solemnly swear by oath or affirmation that the statements made herein are true and correct to the best of my ability, recollection, education and experience. I further understand the pain and penalty of perjury, and have not spoken falsely.

Vet's Name

January 31, 2009

[Josephine]

Thanks a bunch, Wings, do let us know.

The best to you!!

Betty

[Pete53]

Wings:

Good Luck

[Berta]

That is excellent Wings-

I need to re-read it later-

AMC-I learned not to expect too ,much from the AMC- they totally ignored the conditions of my Sept Remand,sent my claim to Seattle RO for a decision - and again failed to consider my medical evidence (which BVA told them to do in the remand)

They got a PA to opine locally on my claim but the BVA said a cardio doc should opine on it.

It seems that their (The RO- 2005) prior C & P opinion- my IMOs and my medical statements had successfully knocked down-so this new C & P was ordered by BVA.

But they never even acknowledged all that -I think the BVA itself threw the 2005 VA medical opinion out-

I destroyed the recent PA opinion medically.It was ludicrous.I sent my rebuttal to the AMC and also to the BVA.

I understand that a law judge at BVA has my case now.

Buffalo VARO to BVA to AMC to Seattle VARO back to Bath VA then to AMC and then to BVA.6 years have passed and the BVA in Sept 2008 for first time in all those years-actually

acknowledged my medical evidence.

I made a strong rebuttal to the C & P exam and also have highlighted for the BVA the errors that remain in the legal adjudication of my claim for past 6 years as I am setting up for potential CAVC and want those legal errors noted now by the BVA.

This is good to do when anyone is at the AMC- or even before that-

make sure you raise any legal error in the BVA appeal.

The remand could have made the legal errors I raised as moot- but it didnt-they remain.

The VA in over 6 years has failed to acknowledge or even consider ANY of my medical evidence for this claim.

I went through this before and persevered until the awards came.

This time Congressman Filner (H VAC)got involved with the claim.

But what can he do- teach them how to read?

The good part-VA has memorialized within my SOCs and SSOCs for this claim-how utterly determined they are to ignore evidence. My SSOCs reveal they have destroyed every submission of evidence I have made.

Since they have not acknowledged numerous submissions of it by priority mail-they gave me evidence of their October Incident tactics.

In that respect they have given me the proof of shreddergate and H VAC got this proof and I want Congressman Filner to realize this is standard SOP for many many vets and widows based on the evidence I have that this happened to me.

When I am off here in May-next week- I will pursue the responses I have not made yet-to Congressman Filner's inquiry. It isnt resolved and followed my claim back to BVA last month.

I posted here long ago-NVLSP's advise on wording a statement on the I-9 form- I need to call them-I am so glad they advised that statement-

to preserve all errors on appeal.

I hope vets have used that statement in their I-9s