Cue Or New And Material - Input Wanted

[Hoppy]

I like to post the cases I am assisting with on the board to get feedback and suggestions. The current case is a claim for PTSD due to a felony assault that occurred aboard a navy ship. The veteran served from 1981 to 1985. The assault occurred in Nov. 1984. The veteran filed a claim in 2004, The claim was denied and closed due to the veteran’s failure to file an appeal. Either a CUE or new and material evidence is needed to reopen the claim. My plan is to address both a CUE and find new and material evidence.

Prior to my involvement the veteran obtained a witness statement and a current diagnosis of PTSD “as likely as not” caused by the assault in the military. The witness statement was available for the 2004 denial. The statement was made by an active duty commissioned officer who was an enlisted NCO at the time he witnessed the assault. The statement was very detailed. The witness claimed to know both the perpetrator and the victim. The witness statement explained that the perpetrator had been highly agitated for several days before the assault and had been stalking the victim. However, the victim worked for the admiral and was on an upper deck that the perpetrator did not have access to. Eventually he caught the victim in a mess hall. The witness stated he was present when the perpetrator cornered the victim in a chow hall told the victim he was going to kill him and attacked the victim. The attack was thwarted by numerous people in the chow hall. The veteran and the witness stated that to this day the attack is totally not understood. The victim did nothing to provoke the attack. The victim actually was responsible for the perpetrators transfer from the deck crew to a more prestigious job as a physical trainer in the shipboard weight room and exercise programs. They appeared to be working well together.

The witness stated that the incident was reported and that he saw the perpetrator being taken of the ship in shackles several days later. The witness statement was the only evidence available to the rater at the time of the denial in 2004. The claim was denied because there was only on piece of evidence. That evidence was identified as the witness statement. The witness statement was not given weight because in the words of the rater the statement “was not corroborated by any other evidence”.

PLAN FOR NEW AND MATERIAL EVIDENCE

I did some research and discovered that “deck logs” are never destroyed. Additional new and material evidence may be available from; Deck Logs Section Ships History Branch Naval Historical Center. They are maintained for 30 years in this location then moved to another storage location after 30 years. The deck logs would note any arrests/suspensions, captain masts and court martials. Even though there was significant reason to believe that the perpetrator was arrested the VA did not seek the deck logs. My plan is to obtain the deck logs and submit them as new and material evidence. I requested that the veteran continue to try and find additional statements from friends and any other source noted as being capable of corroboration in the CFR.

CUE

The position being advanced at this time is that there is no identified legal basis justifying the dismissal of LTJG XXXXX’s statement as not being credible. Thus, such dismissal is a clear and unmistakable error. My argument may be a reach. However, it is all I got at this time

The initial 2004 decision determining that LTJG XXXXX’s statement was not corroborated and thus did not verify that the event described as an attack and stalking by the veteran actually occurred paraphrased the CFR often used by the VA to explain how stressful events are corroborated. The decision then referred the veteran to title 38 of the Code of Federal regulations. When paraphrasing the CFR in the 2004 rating decision the rater stopped short of the discussion of witness statements noted within the law.

Essentially, the CFR provides examples of credible supporting evidence that includes witness statements as being capable of corroborating an event. The law also states that other sources such as reports from law enforcement can also corroborate an event. The rater disqualified LTJG XXXXX’s witness statement solely on the basis that his statement “was not corroborated” by other sources of information. There is no known list identifying the types of evidence need to corroborate a witness statement. The list noted in the CFR is not a list of evidence that is required to corroborate a witness statement. Rather it is a list of evidence that corroborates a personal attack. In this regard the rater confused the requirements of law by requiring that the witness statement be corroborated by other sources on the list of evidence corroborating a personal attack. The law does not identify credibility of the witness statement as being dependent on corroboration.

The only identifiable legal considerations identified to disqualify a witness statement are contained in the following; Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). None of the aforementioned impeachable showings were even discussed in the 2004 denial.

The law clearly recognizes a witness statement as being capable of corroborating a personal attack. Additionally, the law does not identify that the absence of corroboration of a witness statement by other types of reports listed as capable of corroborating a personal attack in the examples provided by 38 CFR 3.304 can be used as the sole reason for dismissing a witness statement.

The position being advanced is that the witness statement stands on its own. The only legal way of dismissing a witness statement requires that the witness statement be found to have been contradicted or significantly compromised by other sources showing that the statement was not credible. The mere absence of corroboration does not invalidate the witness statement. No contradictory or compromising evidence was identified by the rater in the 2004 decision. Considering that this case involves a witness statement made by a firsthand witness who actually viewed the event and wrote a detailed statement, the only question is whether or not the event would be considered by medical authority as a PTSD stressor.

The fact that the stressor was determined as not being confirmed resulted in a lack of development of the veteran’s claim. Had the claim continued and been fully developed a completely different outcome would have resulted. The claim would have been fully developed and a medical determination such as the report developed by Dr. XXXXX would have been obtained. In any event the position being advanced is that the original 2004 determination that a stressful event did not occur was not supported by any objective standard of law and the evidence should now be viewed as confirming a stressful event. As such, development of the claim should be continued as though the 2004 determination never occurred.

I should note that I have been familiar with this veteran for over 20 years. When I met the veteran 20 years ago I figured the guy had a developmental disability. He definitely had attention span issues and was easily distracted and confused. He was often depressed and did not trust people. He has been isolated from normal fuctioning for over 17 years. He is a dumpster diver and will not seek work in a social environment. I was absolutely amazed when I read his personnel file and the witness statement. The guy was a high functioning administrator who worked for an admiral. He multi tasked and setup innovative programs aboard the ship. All of his quarterly marks were excellent. The perpetrator continued to stalk the victim after the chow hall event so the victim went to the chaplin and ship doctor to report the guy because he did not want him to get in trouble. He viewed the guy as a friend. The chaplin and doctor would not get involved and he eventually reported the guy to the master at arms leading to the arrest. The victim has not trusted chaplins or doctors since the event.

[carlie]

I like to post the cases I am assisting with on the board to get feedback and suggestions. The current case is a claim for PTSD due to a felony assault that occurred aboard a navy ship. The veteran served from 1981 to 1985. The assault occurred in Nov. 1984. The veteran filed a claim in 2004, The claim was denied and closed due to the veteran’s failure to file an appeal. Either a CUE or new and material evidence is needed to reopen the claim. My plan is to address both a CUE and find new and material evidence.

Prior to my involvement the veteran obtained a witness statement and a current diagnosis of PTSD “as likely as not” caused by the assault in the military. The witness statement was available for the 2004 denial. The statement was made by an active duty commissioned officer who was an enlisted NCO at the time he witnessed the assault. The statement was very detailed. The witness claimed to know both the perpetrator and the victim. The witness statement explained that the perpetrator had been highly agitated for several days before the assault and had been stalking the victim. However, the victim worked for the admiral and was on an upper deck that the perpetrator did not have access to. Eventually he caught the victim in a mess hall. The witness stated he was present when the perpetrator cornered the victim in a chow hall told the victim he was going to kill him and attacked the victim. The attack was thwarted by numerous people in the chow hall. The veteran and the witness stated that to this day the attack is totally not understood. The victim did nothing to provoke the attack. The victim actually was responsible for the perpetrators transfer from the deck crew to a more prestigious job as a physical trainer in the shipboard weight room and exercise programs. They appeared to be working well together.

The witness stated that the incident was reported and that he saw the perpetrator being taken of the ship in shackles several days later. The witness statement was the only evidence available to the rater at the time of the denial in 2004. The claim was denied because there was only on piece of evidence. That evidence was identified as the witness statement. The witness statement was not given weight because in the words of the rater the statement “was not corroborated by any other evidence”.

PLAN FOR NEW AND MATERIAL EVIDENCE

I did some research and discovered that “deck logs” are never destroyed. Additional new and material evidence may be available from; Deck Logs Section Ships History Branch Naval Historical Center. They are maintained for 30 years in this location then moved to another storage location after 30 years. The deck logs would note any arrests/suspensions, captain masts and court martials. Even though there was significant reason to believe that the perpetrator was arrested the VA did not seek the deck logs. My plan is to obtain the deck logs and submit them as new and material evidence. I requested that the veteran continue to try and find additional statements from friends and any other source noted as being capable of corroboration in the CFR.

CUE

The position being advanced at this time is that there is no identified legal basis justifying the dismissal of LTJG XXXXX’s statement as not being credible. Thus, such dismissal is a clear and unmistakable error. My argument may be a reach. However, it is all I got at this time

The initial 2004 decision determining that LTJG XXXXX’s statement was not corroborated and thus did not verify that the event described as an attack and stalking by the veteran actually occurred paraphrased the CFR often used by the VA to explain how stressful events are corroborated. The decision then referred the veteran to title 38 of the Code of Federal regulations. When paraphrasing the CFR in the 2004 rating decision the rater stopped short of the discussion of witness statements noted within the law.

Essentially, the CFR provides examples of credible supporting evidence that includes witness statements as being capable of corroborating an event. The law also states that other sources such as reports from law enforcement can also corroborate an event. The rater disqualified LTJG XXXXX’s witness statement solely on the basis that his statement “was not corroborated” by other sources of information. There is no known list identifying the types of evidence need to corroborate a witness statement. The list noted in the CFR is not a list of evidence that is required to corroborate a witness statement. Rather it is a list of evidence that corroborates a personal attack. In this regard the rater confused the requirements of law by requiring that the witness statement be corroborated by other sources on the list of evidence corroborating a personal attack. The law does not identify credibility of the witness statement as being dependent on corroboration.

The only identifiable legal considerations identified to disqualify a witness statement are contained in the following; Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). None of the aforementioned impeachable showings were even discussed in the 2004 denial.

The law clearly recognizes a witness statement as being capable of corroborating a personal attack. Additionally, the law does not identify that the absence of corroboration of a witness statement by other types of reports listed as capable of corroborating a personal attack in the examples provided by 38 CFR 3.304 can be used as the sole reason for dismissing a witness statement.

The position being advanced is that the witness statement stands on its own. The only legal way of dismissing a witness statement requires that the witness statement be found to have been contradicted or significantly compromised by other sources showing that the statement was not credible. The mere absence of corroboration does not invalidate the witness statement. No contradictory or compromising evidence was identified by the rater in the 2004 decision. Considering that this case involves a witness statement made by a firsthand witness who actually viewed the event and wrote a detailed statement, the only question is whether or not the event would be considered by medical authority as a PTSD stressor.

The fact that the stressor was determined as not being confirmed resulted in a lack of development of the veteran’s claim. Had the claim continued and been fully developed a completely different outcome would have resulted. The claim would have been fully developed and a medical determination such as the report developed by Dr. XXXXX would have been obtained. In any event the position being advanced is that the original 2004 determination that a stressful event did not occur was not supported by any objective standard of law and the evidence should now be viewed as confirming a stressful event. As such, development of the claim should be continued as though the 2004 determination never occurred.

I should note that I have been familiar with this veteran for over 20 years. When I met the veteran 20 years ago I figured the guy had a developmental disability. He definitely had attention span issues and was easily distracted and confused. He was often depressed and did not trust people. He has been isolated from normal fuctioning for over 17 years. He is a dumpster diver and will not seek work in a social environment. I was absolutely amazed when I read his personnel file and the witness statement. The guy was a high functioning administrator who worked for an admiral. He multi tasked and setup innovative programs aboard the ship. All of his quarterly marks were excellent. The perpetrator continued to stalk the victim after the chow hall event so the victim went to the chaplin and ship doctor to report the guy because he did not want him to get in trouble. He viewed the guy as a friend. The chaplin and doctor would not get involved and he eventually reported the guy to the master at arms leading to the arrest. The victim has not trusted chaplins or doctors since the event.

Hoppy,

"The witness stated that the incident was reported and that he saw the perpetrator being taken of the ship in shackles several days later. The witness statement was the only evidence available to the rater at the time of the denial in 2004. The claim was denied because there was only on piece of evidence. That evidence was identified as the witness statement. The witness statement was not given weight because in the words of the rater the statement “was not corroborated by any other evidence”."

"The chaplin and doctor would not get involved and he eventually reported the guy to the master at arms leading to the arrest."

If the perp got arrested, put in shackles and removed from the ship -

there will be a paper trail on this. If this veteran supplied the VA with the name

of the perp, ship and approximate time frame - VA had a duty to assist and do a search for this evidence.

If this evidence is located and brought into the record now under

3.156c -(new & material -service department records)

the veteran should retain the EED of the original claim.

JMHO

[john999]

I am wondering if the vet who was attacked received any medical attention at the time? That would be in the record.

John

[Berta]

I agree with Carlie on the 3.156 regs,Hoppy unless you can manipulate this reg into a basis for a CUE claim.:

“Title 38: Pensions, Bonuses, and Veterans' Relief

CHAPTER I: DEPARTMENT OF VETERANS AFFAIRS

PART 4: SCHEDULE FOR RATING DISABILITIES

Subpart A: General Policy in Rating

4.6 - Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

"The witness statement was not given weight because in the words of the rater the statement “was not corroborated by any other evidence”.

Did he write home of this incident? Can any family member verify he told them of it?

I agree with John, there could be more evidence somewhere.

"The position being advanced is that the witness statement stands on its own. The only legal way of dismissing a witness statement requires that the witness statement be found to have been contradicted or significantly compromised by other sources showing that the statement was not credible. The mere absence of corroboration does not invalidate the witness statement. "

You are correct and I believe there is established VA case law to bolster that point.

[Berta]

Hoppy,to add,

I wonder if there is anything within this case that can help you:

_____________________________________________________________________

United States Court of Appeals for Veterans Claims

_____________________________________________________________________

Vet. App. No. 11

-

3200

________________________

ROBERT C. FRENCH

5. Shinseki

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc/01202329938

Also on pages 19 and 20 of this document, (pages 86 and 87 of the linked doc.)

there is some legalize that might help you regarding lay testimony (eye witness accounts , aka buddy statements)

“Federal Jurisprudence Regarding VA’s Duty to Provide

a Medical Examination: Preserving the Uniquely Pro-Claimant

Nature of VA’s Adjudicatory System While Providing Timely

Decisions”

3 VA lawyers prepared this document.

http://www.bva.va.gov/docs/VLR_VOL1/vlr1brook.pdf

[Hoppy]

Thanks for the input. The case on medical exams will not do much good on a PTSD claim where the stressor was not confirmed. The VA does not develop the medical evidence for personal assault PTSD until after the stressor is found to be confirmed and credible. The veteran had to get the report from the psychiatrist on his own. He got it from a VA treating psychiatrist.

New and material service department reports they would be. This sounds like this is the best way to get the claim re-opened with a better EED. It sounds like they would have had an obligation rather than a duty to assist in getting the deck logs. Both the veteran and the witness described a significant violation of the law, the fact that the perpetrator was seen being removed from the ship in restraints, the name of the ship, the fact that the ship was in port and the month and year the event occurred. I will argue that it was obvious to me as an advocate that this information could be retrieved and thus should have been obvious to the VA that there was sufficient information to seek the deck logs and that this identical information from the witness statement was all that was used by the me to obtain the new reports.

I read some cases involving 3.156 ( C ). This sounds like it could fly. I will continue to argue that the witness statement was illegally impeached. Also getting statements from family sounds good. I was afraid that they would say it was cumlative. However, the case Berta cited would require that it be new and material.

John,

The stressor is based on the perpetrators loud and viscous verbalized intent to kill the victim. The physical injuries were limited and the veteran did not want to go sick call initially because he did not want to get the guy in trouble. The entire event including the working relationship between the perpetrator and victim, the attack and the failure of the chaplain and doctor to get involved was all considered by a VA psychiatrist. The event has been confirmed under DSM IV criteria as a PTSD stressor by a VA psychiatrist. It was only after the stalking continued and the medical staff and chaplain did not get involved that the veteran reported the perpetrator to the master at arms because he feared the guy was set on following through with his threat to kill him. The witness and the veteran provided the raters and the VA psychiatrist with a detailed account of the event.

[carlie]

Getting anything in the paper trail relating to the arrest of the perp

would certainly help to add weight to the witnesses testimony,

hopefully as credible and probable, as to the event happening.

I think this would end up with advancement in a positive direction for

this claimant.

JMHO