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]

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. (?)

harleyman,

The above, with relating fear of terrorist activity won't fly in this case as relationship

to fear of another service member.

This has been tried thru the court in an MST case and was knocked down -

sorry, I do not remember the case name or year, but it is there somewhere where the

MST victim claimed to be in fear of the perp / service member and that in the perp

committing the MST (illegal act) that made them a terrorist even tho they were a service member.

Hope this is understandable.

[harleyman]

I understand and that is why I wrote it may be a stretch (?). I had not seen any cases like this so I thought it might be worth a shot. I appreciate your letting me know this has already been tried and failed. In all fairness to this Veteran, I don't see how numerous attempts to kill or harm, does not qualify as terrorist activity, but that is just me.

However, the diary is N&M evidence and should be able to confirm this incident happened, as well as provide dates for ship logs and possibly treatment /counceling records by the chaplain, doctor, etc. Which may have been included in the records for the reasons they removed the perp from the ship in handcuffs. There had to be documentation added to the perps file. With the name of the perp, the unit info, including cammnading officers etc., of the perp, VA should be able to obtain the facts and circumstances surrounding the perps removal from the ship in handcuffs, in support of Hoppy's Veteran's claim.

That is if the JSRRC is ambitious enough to check it out.

Edited August 10, 2013 by harleyman

[Hoppy]

Berta

Did the former NCO tell the VA and the claimant the name of the perpetrator? The LTJG provided the VA with the perp’s rank and last name only.

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

The LTJG stated the event occurred in Nov 1984. The journal noted an entry on Nov 14 at 12:20 P.M. that the incident was reported to the ships master at arms

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. The LTJG provided his observations of the perp’s unusual behavior for several days leading up to the event.

However this journal should stand alone as additional evidence supporting the appeal,in my opinion. I will submit a copy of the journal whether or not I get the ink dated, By the way, some ink has actually markers added to allow ink dating (between the 60’s and 90’s). I learned this in Private Investigator school.

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. I am going to provided the VA with a copy of the page in the journal and a photograph of the cover. I will tell them I would prefer that if necessary we can bring the journal to a meeting while they inspect the document in our presence.

Also has anyone tried to contact the Admiral in charge when this all occurred? There is a possibility that we may try and find the XO. The problem is that the command was informed before the master at arms was notified and the command blew it off as unimportant.

Has he also visited his unit's web site? YES, no one with the same last name registered on the units website.

Harley

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. The deck logs records site says they have minimum staff and to get a date as close to the event as possible. We feel we have it within a couple days.

Not only are they lazy they can be corrupt.

I had to warn the veteran that even though the deck logs are promising, we are at their mercy to do their job. When I filed my claim for angioedema a records clerk caused a five year delay by falsely stating 25 years of my treatment records were destroyed in an earthquake. I got the clerk to write and sign a note when he told me the records were destroyed. Five years later another clerk told me he lied and got the records for me. I made the mistake of telling the RO that the records had been found and they can get them now from the hospital. I should have sent them copies. The RO denied the claim saying that two requests for the records were ignored by the hospital. I got pissed and went to the records office just to have the supervisor provide me with a document with the signature of the RO employee who picked up my records. In other word the RO lied. They got the records and lost or destroyed them. It took 8.5 years for me to win my angioedema claim. It never got out of the RO. It was awarded by a DRO who worked at the RO.

[harleyman]

Hoppy, I find myself leaning in the direction that your Veteran can win this case simply by reopening his claim. With a diagnosis of PTSD due to personal trama, the letter from the Lt. JG, and now the diary as new and material evidence not previously considered, could be enough for direct service connection.(possibly without the research request for deck logs by the JSRRC although the deck logs would be the ultimate proof required). I recognized a reopened claim would not get the EED unless the VA C.U.E. themselves.

Since the military did not keep the indepth and detailed computer records in the 1980's like they do now, there is more than enough evidence to show this incident occurred and certainly tips the scale in favor of the Veteran. The question is do you try to decide to go with a reopened case for N&M with a date of claim effective date, or the C.U.E. and try to get the retro pay with an EED. I would file for the N&M and see how they handle the new evidence and if they "blow" it off then file the NOD and a claim for C.U.E.

S/C first and fighting for retro payments second, as the monthly check can pay for future legal expenses.- IMO

Edited August 11, 2013 by harleyman

[jbasser]

Led off in shackles means dude was brigged.

If it was an assault, then ask the Veteran to Identify the attacker. The Navy keeps records of any court martial proceedings.

Where did the attack take place? What naval venue, Norfolk, San DIego?

These attacks are investigated by NIS or Naval investigative service so there must be a record. The Victim will be named in the report as the victim and the victim still has Victims rights per the law so he is entitled to a copy.

J

[Berta]

I agree and aren't many of those court martials discussed in the USMJ ( US Code of Military Justice?)

Also just to add Hoppy, it pays for a veteran to contact JSRRC themselves.

I had claims I helped with years ago whereby the VARO had said JSRRC couldnt find enough info to verify a stressor, and come to find out ,when the vet wrote to JSRRC ,he got exactly what he needed. That happened more then once to vets I helped locally.

I also have seen BVA decisions on remand because it appeared the the RO made no attempt at all to contact JSRRC when they should have.

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