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.

[Hoppy]

Update on this claim.

A letter was sent requesting deck logs.

Believe it or not the veteran kept a personal journal describing the events and that it was reported to the ships master at arms. I am now contemplating if I got an expert document examiner to use ink data science to show the document was written in 1984 if it can be submitted as though it was an original letter written to friends or relatives.

As far as illegal impeachment of the witness statement I am continuing the original argument that the buddy letter was illegally impeached. this is what I found imbedded in a BVA case...................

Credible testimony is that which is plausible or capable of
being believed. See Indiana Metal Prods. v. NLRB, 442 F.2d
46, 52 (7th Cir. 1971) (citing Lester v. State, 212 Tenn.
338, 370 S.W.2d 405, 408 (1963)); see also Weliska's Case,
125 Me. 147, 131 A. 860, 862 (Me. 1926); Erdmann v. Erdmann,
127 Mont. 252, 261 P.2d 367, 369 (Mont. 1953) ("A credible
witness is one whose statements are within reason and
believable . . . ."). The term "credibility" is generally
used to refer to the assessment of oral testimony. See,
e.g., Anderson v. Bessemer City, 470 U.S. 564, 575, 84 L. Ed.
2d 518, 105 S. Ct. 1504 (1985) ("only the trial judge can be
aware of the variations in demeanor and tone of voice that
bear so heavily on the listener's understanding of and belief
in what is said"); NLRB v. Walton Manufacturing Co., 369 U.S.
404, 408, 7 L. Ed. 2d 829, 82 S. Ct. 853 (1962) (trier of
fact "sees the witnesses and hears them testify, while the
[NLRB] and the reviewing court look only at cold records");
Jackson v. Veterans Admin., 768 F.2d 1325, 1331 (Fed. Cir.
1985) (trier of fact has opportunity to observe "demeanor" of
witness in determining credibility).

The credibility of a witness can be impeached by a showing of
interest, bias, inconsistent statements, or, to a certain
extent, bad character. See State v. Asbury, 187 W. Va. 87,
415 S.E.2d 891, 895 (W. Va. 1992); see also Burns v. HHS, 3
F.3d 415, 417 (Fed. Cir. 1993) (testimony was impeached by
witness' "inconsistent affidavits" and "expressed recognition
of the difficulties of remembering specific dates of events
that happened . . . long ago"); Mings v. Department of
Justice, 813 F.2d 384, 389 (Fed. Cir. 1987) (impeachment by
testimony which was inconsistent with prior written
statements). Although credibility is often defined as
determined by the demeanor of a witness, a document may also
be credible evidence. See, e.g., Fasolino Foods v. Banca
Nazionale Del Lavoro, 761 F. Supp. 1010, 1014 (S.D.N.Y.
1991); In Re National Student Marketing Litigation, 598 F.
Supp. 575, 579 (D.D.C. 1984).

In determining whether documents submitted by a veteran are
credible, the Court in Caluza v. Brown, 7 Vet. App. 498, 511
(1995), summarized that the Board may consider internal
consistency, facial plausibility, and consistency with other
evidence submitted on behalf of the claimant.

[broncovet]

If you have to choose between CUE and reopening due to 3.156 C, then you should always chose 3.156 C. Reason: Cue "raises the bar" and benefit of the doubt goes out the window. There is no need to make the approval more difficult to obtain than necessary, therefore, 3.156 should be utilized whenever possible.

I do agree, however, that both CUE and 3.156 C are plausable, and you dont want to remove any tools from you tool box, when you go to fight the VA.

There is a "liberalizing law" in place that should benefit the Veteran: The VA, about a couple years ago, supposedly made stressor verifications easier for PTSD. And, the law requires the "most liberal" be applied.

When the law changes, and I think it did in this case, the law that applies is supposed to be the one that benefits the Veteran.

This NVLSP document may help you:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

As the above document shows, it is a myth that there are only 2 methods of overcoming finality of a previously unappealed decision.

In addition to CUE and 3.156, there, are the "liberalizing laws", and "notice" violations, such as VA failure to give the Veteran notice of time limits, as well as other things in the purple heart training document.

This document is excellent for Veterans advocates or attornies wanting to overcome finality:

http://www.bva.va.gov/docs/VLR_VOL2/Copy5--JohnFussellandJonathanHager.pdf.

Edited August 10, 2013 by broncovet

[Berta]

Hoppy, I replied here to two posts you made...... forget where the other one is:

Would the NCO witness recall names of anyone else who was aware of this situation?

“The witness claimed to know both the perpetrator and the victim.”

Did the former NCO tell the VA and the claimant the name of the perpetrator?

Nov 1984. many vets dont even have dates this specific for issues like this.

With the perps name maybe Intelus or a background check could reveal something of this guy's character to support this event aboard ship....like maybe he has been arrested since, for stalking or assaults etc etc.....

Intelus can provide good info but it can get expensive.....but would be cheaper then a forensic ink specialist I am sure.

Intelus also has a conditional statement as to how the info they find can be used.

Still , us "pseudo" lawyers know how to get around that one.

Also with the perps name and possibly his hometown, a search of county records might reveal his DD 214.

I think the key witness to all this, in addition to the NSO and the journal the vet kept on this, is the perp himself and he surely as a paper trail, either inservice or post service or both.

I call him a perp but the reality is he exhibited symptoms of MH issues, possibly bipolar behavior , and I am sure he was discharged unfavorably after this event.

Hoppy said:

“Believe it or not the veteran kept a personal journal describing the events and that it was reported to the ships master at arms. I am now contemplating if I got an expert document examiner to use ink data science to show the document was written in 1984 if it can be submitted as though it was an original letter written to friends or relatives. “

Hoppy you should be a lawyer and/or a forensic expert!

However this journal should stand alone as additional evidence supporting the appeal,in my opinion.

The problem is , can it be copied or is it too big? I would never allow VA to have any original journal because they could lose it.

Also has anyone tried to contact the Admiral in charge when this all occurred?

How about searching for this guy too :

"it was reported to the ships master at arms."

His name might be on the deck log roster for 1984.

Has he also visited his unit's web site?

I learned that a needle in a haystack can often be FOUND!

It just takes a lot of time and determination.

Edited August 10, 2013 by Berta

[harleyman]

Hoppy, if the Veteran kept a diary, he should be able to provide the names and dates this occurred. The pages of the Veteran's diary account would be considered New and Material evidence. Also, if the Veteran's diary has names of any of his "buddies" at the time he may be able to contact them to get statements supporting the LT JG already submitted statement.

It's my opinion that the JSRRC people at the RO (at least at my RO ) are VERY lazy. They will not do indepth searches unless they have very specific time periods to search. The closer the Veteran can get in his dates the better off he will be in getting anything done by VA to help him in his reopened claim.

If the Veteran can prove this event occured, he might qualify for the PTSD claim under the guidelines for PTSD based on, "fear for ones life", due "fear of hostile military or terrorist activity." It might be a stretch to get the VA to look at this personal assault under this provision, as they really only want to apply it during combat areas. However, I am seeing RVN Veterans getting PTSD based on fear even though they never saw combat, but just were fearful of terrorist activties. The fear factor is you have the PTSD diagnosis based on Fear of. Since he was attacked by a soldier in the military, it may be enough. (?)

If he has a diagnosis of PTSD based on fear, under the regulation he does not have to prove the stressor. And it could be granted S/C based on his journal showing he feared for his life due to the attack. I hope you understand where I am going here.

Edited August 10, 2013 by harleyman

[Philip Rogers]

FYI - I believe diaries are considered true in the eyes of the court and in fact may even be better than eye witness testimony.

pr

[Berta]

I agree and that diary is very important.

Diary (Journal) submissions at the BVA:

“The veteran's diaries for the time period of May 27, 1944 
through June 25, 1944 were received in October 1985.  The 
diaries contain accounts of the bombing missions the veteran 
participated in over Western Europe before and after D-Day.”

ORDER

Subject to the provisions governing the award of monetary 
benefits, an evaluation of 50 percent for PTSD is granted.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp98/files4/9836568.txt

I am parsing this decision as I believe the original grant of 30% PTSD was based in part on the diaries.

--------

In this remanded case the veteran told VA he had diaries but no effort was made to obtain them nor did the vet send them to the VA:

“2.  The RO should request that the 
veteran provide his diary to be copied or 
submit copies of his diary entries which 
chronicle his experience with PTSD
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp96/files4/9634362.txt

)Obviously the BVA considered the diary entries as potentially probative and corroborating evidence)


This case also involved an increase in established SC PTSD.

____________________----
In this case:
in part:
“FINDINGS OF FACT

1. The Veteran has been diagnosed with PTSD as the result of 
military sexual assaults during her active duty service.

2. There is credible supporting evidence of record to support 
her claimed in-service stressors.”
and
“In March 2010, the Veteran submitted a copy of her diary kept 
during her period of active duty.”and

“Service personnel or service treatment records do not provide 
confirmation of the Veteran's alleged stressors.  However, in 
this case, the Veteran submitted several statements and 
hearing testimony regarding the nature of the sexual assaults 
and sexual harassment in service.  She also submitted copies 
of her personal journal/diary, which provides a 
contemporaneous recounting of the incidents that she reports.” and
“Here, the Veteran consistently reported a history of military 
sexual trauma occurring in service.  She has supplied 
detailed written statements, hearing testimony, and 
statements from fellow serviceman that described in detail 
her in service stressors.  The copies of her personal diary 
entries during active duty also corroborate her claimed in-
service stressors.  The Board has scrutinized the diary and 
finds it to be a credible historical document.  The diary 
entries are therefore exceedingly probative as they clearly 
provide an accounting of what transpired during the Veteran's 
active service.    Further, service treatment notes dated in 
April 1979 (the month of the Veteran's separation from her 
first husband) detailed treatment for a contusion and 
hematoma of the right forearm following an unspecified 
injury.”
 “ORDER

Entitlement to service connection for PTSD is granted.”
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp10/files3/1022677.txt

Edited August 10, 2013 by Berta