ptsd Can A Change To The M21 Allow For Re-Opening The Claim

[Hoppy]

Does a change in the m21 constitute a change in the law allowing for a claim to be re-opened. Case in point. I am assuming the M-21 has changed since 2004. Berta, do you have any old m21’s that you can look at and post what it says in regards to: 13.I only

M21-1MR, Part IV, Subpart ii, Chapter 1, section D, 13.I.

13. General Information on Developing Claims for Service Connection for PTSD, Continued

k. Secondary Sources of Evidence That May Corroborate a Claimed In-Service Stressor Carefully review the following secondary sources of evidence for information confirming participation in combat or to otherwise corroborate a claimed in-service stressor:

Numerous types of evidence were omitted . I am addressing only

……………….

• buddy statements

.

l. Considering Buddy Statements Accept a buddy statement as corroboration of a claimed in-service stressor, so long as the statement is consistent with the time, place, and circumstances of the service of both the Veteran and the buddy.

If the evidence available calls into question the qualifications of the buddy to make the statement, ask the person to submit his/her DD Form 214 or other evidence of service with the claimant.

--------------------------

In 2004 they did not give any reason as to why the buddy statement was not accepted other than they claimed the corroborating buddy letter was not corroborated.

My contention is that the above instruction did not exist in 2004. I have found no objective standard of law circa 2004 requiring that the buddy letter be corroborated. I have successfully used the failure to identify an objective standard of law argument in another case. The case involved an adjudicator who said that it required more than on notation of a disease in the SMR to service connect the disease. They used this argument to deny the claim without a C&P. I argued that the requirement that the disease be noted more than once was a false objective standard of law. The SO turned it in and the claim was awarded based on the existing medical evidence.

[Hoppy]

Berta and others,

Due to sequestration the JSRRC and the deck log section are not responding to requests from any body other the a VARO. This should be a temporary problem. They a keeping all requests from the public and service orgs. in the order the are received and will get to them when they can. I have read the decision. There is another factor involving the lack of a diagnosis of PTSD in 2004.

Sorry this is long.

This case is pretty interesting. A topic I deal with is VCAA notices. This was really a find considering the veteran had a journal.’ The VCAA notice he received did not comply with a new ruling at that time. I have been reading cases from 2004.

Another topic has to do with when do they start the verification of the stressor process. I found the process from 1998. If it did not change between 1998 and 2004 then it appears the best I can do is get the claim re-opened. This 1998 process would explain that in 2004 the reason they said the witness statement was not corroborated is because they were not required to seek any corroboration until after a diagnosis of PTSD was made. If this is true it would shoot down a CUE or EED for my veteran based on the inadequate VCAA notice, findings in any newly found deck logs or changes in the m21- regarding lack of development. I included the current verification process just in case the 2004 laws required development of the stressor. Additionally, I did all this research and typed this up before I found the 1998 process. The stuff I found may apply to other readers so I posted everything.

A possible explanation as to why the case lacks any reference to the development of the stressor information may be that they only developed the stressor confirmation process after the PTSD diagnosis was established. The m21 process below was from 1998. I am not sure if it changed by 2004. My veteran’s diagnosis of PTSD was disputed in the decision in 2004

1998 m21--

(4) Do not send a case to the ESG or Marine Corps unless there is a confirmed diagnosis of PTSD adequate to establish entitlement to service connection. Correspondingly, always send an inquiry in instances in which the only obstacle to service connection is confirmation of an alleged stressor. A denial solely because of an unconfirmed stressor is improper unless it has first been reviewed by the ESG or Marine Corps.

This is the m21 from 2010.

Important:

• Do not schedule a VA examination before receiving corroboration of the claimed in-service stressor. A diagnosis of PTSD is not a prerequisite for initiating the stressor verification process.

•

Denying service connection solely because of an unconfirmed stressor is improper unless the appropriate records custodian, such as JSRRC, MCASC, or NARA, has confirmed that the claimed stressor cannot be corroborated or

• the Veteran has failed to provide the basic information required to conduct research, and

the JSRRC coordinator has taken the actions described in M21-1MR, Part IV, Subpart ii.1.D.16

• The JSRRC coordinator may contact the Veteran by telephone to obtain the additional information needed to document the in-service stressor. The substance of the telephone call must be documented on a Report of Contact, VA Form 119.

The JSRRC coordinator will make a formal finding regarding the lack of sufficient information in the claims folder to document the occurrence of the stressful event(s) and the Veteran’s involvement in it.

As of now I have read about 20 BVA cases from 2004 in which verification of stressors was remanded. Every case the veteran had a diagnosis of PTSD. I have not found any remands to search for verification of a stressor for claims without a diagnosis of PTSD. I have continued to move progressively up to 2008. I finally found a remand where they said to schedule a PTSD exam after the JSRCC confirms any one of the claimed stressful events.

The veteran submitted a diagnosis of PTSD linked to military service for the first time in 2011 as new and material. They denied re-opening the claim because the stressor still remained unconfirmed. This denial will be appealed because there was no basis for them not to accept the witness statement as corroborating based on the current m21. Additionally, they did not attempt to obtain the deck logs and they failed to provide a new VCAA statement that included the requirements of the law either omitted from the first VCAA or a VCAA addressing new requirements of notification mandated since 2004. Thus, with the addition of the medical evidence the claim should have been re-opened.

The current m21 is very detailed in outlining the process for handling a PTSD claim.

The JSRRC coordinator is supposed to get deck logs.

Primary evidence may include

• unit and organizational histories

• daily staff journals

• operational reports-lessons learned

• after-action reports

• radio logs, deck logs, and ship histories

• muster rolls

In this case my veteran was the victim of an assault that was clearly described by a witness that was a violation of article 91 and 128 of the UCMJ. The witness stated that he personally saw the perp taken from the ship in restraints. The witness provided all the information needed to find the deck logs.

The claim was denied in 2004 because the witness statement was not corroborated. I have only found this instruction in the current m21:

Accept a buddy statement as corroboration of a claimed in-service stressor, so long as the statement is consistent with the time, place, and circumstances of the service of both the Veteran and the buddy.

The above instruction does not contain any modifiers not to accept the statement as corroborating due to lack of additional corroboration. I have researched the legal definition of “corroboration”, the legal process for impeaching a witness” and what types of cases require more than one witness under federal law. I have found no basis for the VA to impeach the witness. The new instruction only allows for a determination of an unacceptable buddy letter based on the time and place of service of the witness. The witness in my veterans claim was clearly on the ship when the event happened.

If the current m21 instruction stands on its own then there is no need for the deck logs or the journal entries.

There is absolutely no discussion in the decision as to what was done for the purpose of finding deck logs. There is no reference on the evidence list to a formal finding of lack of verification of the stressor. The acronym JSRCC or CURR or any other data base is not identified anywhere in the decision. Either the process changed or they did not do their job.

Harleyman thinks that the C-file will contain the formal report. I think that if they did a formal report it would have been on the evidence list or some reference would have been noted in the decision. No such reference was included in the decision.

The JSRRC coordinator is supposed to review the claims folder for all relevant evidence. Was there a JSRRC coordinator in 2004? Did he read the witness statement???? Or, did they do nothing because of the non existence of a diagnosis of PTSD.

The rest of this post deals with the VCAA notice. The case referenced below was decided in December 2004. I read my veterans VCAA notice. It told him to submit buddy statements etc. The usual types of evidence. There was no instruction identifying a journal as being important. Additionally, there was no statement such as the one identified in the case pasted below as to a new fourth element required in VCAA notices.

In Patton v. West, 12 Vet. App. 272 (1999), the Court held

that special consideration must be given to claims for PTSD

based on sexual assault. In particular, the Court held that

the provisions in M21-1, Part III, 5.14©, which address

PTSD claims based on personal assault are substantive rules

which are the equivalent of VA regulations and must be

considered. See also YR v. West, 11 Vet. App. 393, 398-99

(1998).

Also, the United States Court of Appeals for Veteran

Claims' (Court's) decision in Pelegrini v. Principi, No. 01-

944 (U.S. Vet. App. Jan 13, 2004) held, in part, that a VCAA

notice consistent with 38 U.S.C.§ 5103(a) and 38 C.F.R.

§ 3.159(b) must: (1) inform the claimant about the

information and evidence not of record that is necessary to

substantiate the claim; (2) inform the claimant about the

information and evidence that VA will seek to provide; (3)

inform the claimant about the information and evidence the

claimant is expected to provide, and (4) request or tell that

claimant to provide any evidence in the claimant's possession

that pertains to the claim, or something to the effect that

the claimant should "give us everything you've got

pertaining to your claim." This new fourth element of the

notice requirement comes from the language of 38 C.F.R.

§ 3.159(b)(1).

Neither of the two VCAA duty-to-assist letters cited above

expressly satisfied the fourth element ("give us everything

you've got") required by Pelegrini. However, as will be

discussed below, the VCAA provisions have been considered and

complied with. There is no indication that there is

additional evidence to obtain, there is no additional notice

that should be provided, and there has been a complete review

of all the evidence without prejudice to the appellant. As

such, there is no indication that there is any prejudice to

the appellant by the order of the events in this case.

As it turns out the veteran did keep a journal. We submitted it about a month ago as new and material.

The case below shows that they are arguing over the exact terminology necessary in the VCAA. I personally like the phrase in the court ruling above to give us anything related over a request for evidence identified in the BVA case below. “Evidence” is an abstract concept to a veteran.

The letter also informed the veteran to

describe any additional evidence she desired obtained or to

send the evidence itself, which the Board construes as

reasonably informing her to submit any evidence in her

possession. In another letter of October 2001, the RO

informed the veteran that her claim had been previously

denied, and that new and material evidence would be required

to reopen it. The October 2001 letter explained what

constituted new and material evidence.

Specific to claims based upon personal assault, M21-

1, Part III, para. 5.14c provides an extensive list of

alternative sources competent to provide credible evidence

that may support the conclusion that the event occurred.

Included among the sources are statements from fellow service

members, chaplain, and clergy. This section of M21-1 also

contains an exhibit entitled "Suggested Development Letter

for PTSD Claims Based on Personal Trauma."

I am out of gas. I will need to take a rest.

Edited September 17, 2013 by Hoppy

[Berta]

“The VCAA notice he received did not comply with a new ruling at that time. I have been reading cases from 2004. “

Interesting...my VCAA notice for my 2003 claim did not comply with the VCAA.

During the years after the VCAA enactment, there were a bevy of constant remands from the BVA for many years, which I brought up with Conressman Filner many times by phone or by mail(when he was head of the H VAC) that these remands were holding up everyone's claims simply because the ROs were not complying with the requirements of the VCAA and BVA was forced to remand to give the claimant their Due Process VCAA rights.

It was in my opinion a Great part of the beginning of this backlog now.

I even asked him to sponsor an amendment to the VCAA that I had written...in any event...

that idea went no where because Bob Filner,in spite of all his problems since, was certainly exhibiting his anger issues in the frustration of dealing with the VA on other serious fronts ( Shreddergate, and the Perez Memo, and the Suicide rate of veterans etc etc. to name just a few)

Do you mean the VCAA letter was not in compliance with the VCAA?

Or it had failed to consider a new ruling as in 38 USC/CFR that was established prior to the RO preparation of his VCAA letter?

Then again:

”This 1998 process would explain that in 2004 the reason they said the witness statement was not corroborated is because they were not required to seek any corroboration until after a diagnosis of PTSD was made. “

and

This is very important ….

“The veteran submitted a diagnosis of PTSD linked to military service for the first time in 2011 as new and material. They denied re-opening the claim because the stressor still remained unconfirmed. This denial will be appealed because there was no basis for them not to accept the witness statement as corroborating based on the current m21. Additionally, they did not attempt to obtain the deck logs and they failed to provide a new VCAA statement that included the requirements of the law either omitted from the first VCAA or a VCAA addressing new requirements of notification mandated since 2004. Thus, with the addition of the medical evidence the claim should have been re-opened. “

Was it a VA MH diagnosis of PTSD?

The new PTSD regulations as of 2010 require a MH PTSD diagnosis from a VA provider.

My long point here on VCAA is that a VCAA violation will add long delays to a claim if the BVA gets the case and believes the VCAA error is legally detrimental to the claimant's rights to prove their claim.

They would have to remand, unless as in my case (my 2003 claim) I asked the BVA to remand due to VCAA violation. The RO ad refused to re open that claim as well.They (BVA) agreed with me in the remand. The remand was then fulfilled....but erroneously....the BVA then awarded because,in spite of the VCAA violations, I had sent them enough probative evidence to mitigate any damage the VCAA letter had done.

Probative evidence overcomes VA errors. It just adds time to the resolve (and Time is the enemy of veteran claimants.).

“Additionally, they did not attempt to obtain the deck logs and they failed to provide a new VCAA statement that included the requirements of the law either omitted from the first VCAA or a VCAA addressing new requirements of notification mandated since 2004. Thus, with the addition of the medical evidence the claim should have been re-opened. “

I agree but we are all stuck with the new PTSD regulation. Is there any way this vets fits into the timeline criteria in that new reg?

http://www.va.gov/ptsd_qa.pdf

in part:

1

“July 12, 2010

New Regulations on PTSD Claims

Quick Facts

:

This new rule is for Veterans of any era.

The new rule will apply to claims:

o

received by VA on or after July 13, 2010;

o

received before July 13, 2010 but not yet decided by a VA regional

office;

o

appealed to the Board of Veterans' Appeals on or after July 13, 2010;

o

appealed to the Board before July 13, 2010, but not yet decided by the Board;

and

o

pending before VA on or after July 13, 2010, because the Court of Appeals for

Veterans Claims va

cated a Board decision and remanded for re

-

adjudication.”

Hoppy I am actually stuck on this statement as well:

“The veteran submitted a diagnosis of PTSD linked to military service for the first time in 2011 as new and material. They denied re-opening the claim because the stressor still remained unconfirmed. This denial will be appealed because there was no basis for them “

2011????

If the diagnosis is from a VA MH, half of the battle is won,because it seems that they accepted the diagnosis.

“They denied re-opening the claim because the stressor still remained unconfirmed.”

So if this is the Sole reason for denial, and the diagnosis was definitely from a VA shrink or MH professional,

then the veteran needs to do some leg work and get a corroboration and/or confirmation of the stressor.

When I was in military school (AMU) I had to study the entire history of the USMC.

And the Vietnam War. I still have it all on one or two PCs here.

What was his stressor, when and where did it happen and can you tell me his entire military designation? Which Mar Div, which battalion, etc etc........

and if it involved a death of a unit member, what was his name?

If this was a stressor in Vietnam, the locales often had different names...so how he pronounces the name is OK. phonetically.

as the spelling might be much different.

For example Hue is pronounced as 'way'...the Vietnam vets here know what I mean..

.

But before I even attempt to do that....a few questions.....

The buddy statement he has should contain all of that information I asked for..

Did the buddy give the VA his contact info and his complete unit designation?

I don't want his name or address due to the Privacy Act.

Did VA ever attempt to contact the buddy?

And

have you seen the actual buddy statement yourself?

And

what other steps has this vet taken over the years to attempt to find corroborating evidence of the stressor?

Edited September 17, 2013 by Berta

[Berta]

Hoppy I didnt realize this is the same veteran:...I think....

"In this case my veteran was the victim of an assault that was clearly described by a witness that was a violation of article 91 and 128 of the UCMJ. The witness stated that he personally saw the perp taken from the ship in restraints. The witness provided all the information needed to find the deck logs."

And

"Due to sequestration the JSRRC and the deck log section are not responding to requests from any body other the a VARO. This should be a temporary problem. They a keeping all requests from the public and service orgs. in the order the are received and will get to them when they can. I have read the decision. There is another factor involving the lack of a diagnosis of PTSD in 2004."

So you feel the Deck logs should reveal the corroboration..........????

That would be great.

I thought you meant a different case. Sorry

[Hoppy]

Berta,

I have read the buddy letter and the stressor letter and all of the decisions.

Some background info. This is not a Vietnam vet. I see you figured out it is the same veteran I have been dealing with. The event occurred on the USS Puget Sound while in port in Italy in 1984. The witness statement is very detailed. At the time the witness wrote the buddy letter he was an active duty commissioned officer. He provided the all the details necessary to locate the deck logs and his full contact information. He also provided details of the events occurring over a two week period as an eye witness. He saw everything. He knew and worked with both the perp and the victim.

The diagnosis submitted in 2011 was from a VA treating psychiatrist who has been working for the VA a long time.

So you feel the Deck logs should reveal the corroboration..........????

That would be great.

Actually, I feel they can service connect this without the deck logs. The current m21 states that

Accept a buddy statement as corroboration of a claimed in-service stressor, so long as the statement is consistent with the time, place, and circumstances of the service of both the Veteran and the buddy.

The above instruction does not contain any modifiers not to accept the statement as corroborating due to lack of additional corroboration that the event occurred. I have researched the legal definition of “corroboration”, the legal process for impeaching a witness” and what types of cases require more than one witness under federal law. I have found no basis for the VA to impeach the witness. The new instruction only allows for a determination of an unacceptable buddy letter based on the time and place of service of the witness. The witness in my veterans claim was clearly on the ship when the event happened.

If the current m21 instruction stands on its own then there is no need for the deck logs or the journal entries.

So if this is the Sole reason for denial, and the diagnosis was definitely from a VA shrink or MH professional, then the veteran needs to do some leg work and get a corroboration and/or confirmation of the stressor.

I feel we are stuck in LA LA land on one hand the VA failed to try to confirm the stressor in 2004 based on the old m21 instruction not to confirm the stressor until there is a diagnosis of PTSD. On the other hand we get the diagnosis and they continue enforcing the lack of confirmation of the stressor based on the 2004 decision without consideration to the new m21 regulation requiring that they obtain the deck logs and get a formal determination from the JSRRC coordinator. Additionally they did not consider the new procedure stating that they accept confirmation of the stressor based on the new m21 instruction.

Do you mean the VCAA letter was not in compliance with the VCAA?

Or it had failed to consider a new ruling as in 38 USC/CFR that was established prior to the RO preparation of his VCAA letter?

The VCAA problem stems from the 4th requirement cited in this January 2004 decision (Pelegrini)

Also, the United States Court of Appeals for Veteran

Claims' (Court's) decision in Pelegrini v. Principi, No. 01-

944 (U.S. Vet. App. Jan 13, 2004) held, in part, that a VCAA

notice consistent with 38 U.S.C.§ 5103(a) and 38 C.F.R.

§ 3.159(b) must:………………………….. (4) request or tell that

claimant to provide any evidence in the claimant's possession

that pertains to the claim, or something to the effect that

the claimant should "give us everything you've got

pertaining to your claim." This new fourth element of the

notice requirement comes from the language of 38 C.F.R.

§ 3.159(b)(1).

The court in Pelegrini justifies the need for the above statement in the VCAA from the language of the 38 CFR 3.159.

The BVA was referencing Pelegrini in claims later in 2004. I found this statement in a BVA case.

Neither of the two VCAA duty-to-assist letters cited ………..

expressly satisfied the fourth element ("give us everything

you've got") required by Pelegrini.

If we can’t get the deck logs or the m21 instruction to accept the witness statement as corroborating as a basis for service connection and we need to rely on the veterans personal journal (which according to harleyman and some BVA cases I have found is very strong evidence to re-open and win the claim), then the VCAA notice could have caused a prejudicial flaw possibly affecting an EED. Had the veteran been told to give them everything he has or had they specifically noted a personal journal as being on the list of supporting documents then the veteran would have submitted the journal in 2004 rather than 2013. This issue will probably be raised after initial service connection is granted in a claim for EED. However, this could become mute if the lack of a diagnosis of PTSD in 2004 is a dominating issue.

By the way I have lived less than ten miles from Filner’s office for the last seven years. I did deal with him on two claims here locally. He just resigned as mayor. The guy got booted out of office for having some bad pick-up lines. He must have gotten tired of the VA crap to want to be mayor. His office put me in touch with some really good psychologists who were willing to get involved in vets claims. I just do not get as involved in developing medical evidence anymore that would involve these clinicians. I took almost a year off due to my own medical issues and these problems could re-occur on no notice at any time.

Edited September 17, 2013 by Hoppy

[Berta]

Hoppy.....I agree with you completely....with the PTSD diagnosis from VA and the buddy statement ,that IS consistent with the stressor, he should succeed on this claim.

"Actually, I feel they can service connect this without the deck logs." :

Now I sure do think that too.

As you said:

The current m21 states:

Accept a buddy statement as corroboration of a claimed in-service stressor, so long as the statement is consistent with the time, place, and circumstances of the service of both the Veteran and the buddy.

I got off on a tangent here with the VCAA and regret I lost my focus on this vet's situation.

The current M21 should require the VA to accept that buddy statement and then ,when he does get the proper resolve, he can possibly raise CUE over the older denial.

Let me go over this again:

"The veteran submitted a diagnosis of PTSD linked to military service for the first time in 2011 as new and material. They denied re-opening the claim because the stressor still remained unconfirmed."

They denied re-opening the claim.......like they did with my 2003 claim., saying I had provided no evidence.,just "internet printouts".I had provided plenty of evidence.

BVA made them re-open the claim ,remanded it, and then awarded it.when it came back to the BVA.

If that situation happened these days,to me, however, I would ask the RO to CUE itself as soon as I got the reopen denial letter.

I think you could do that in this case stating they violated the current stressor criteria in M21-1MR and use the printout you stated here from M21-1MR as evidence. And throw in the fact that they violated the veteran's VCAA rights.

Re: the stressor statement from the current M21:

"The above instruction does not contain any modifiers not to accept the statement as corroborating due to lack of additional corroboration that the event occurred."

RIGHT. You think like a lawyer would, Hoppy. Make that point to them too.

I had to rehearse my former vet rep once for a double RO review I got by telling them to CUE themselves.

The point I wanted him to make to the DRO (along with having my IMOs properly considered) was that a specific reg in 38 ( 4.6) did NOT say "except for any claims regarding Rodney Simmons,now deceased.".

They had been violating 38 CFR 4.6 in my case, by ignoring my IMOs.That reg is one of the most basic rights we all have.

It is basically the same point you are making.And a good avenue of attack. I used it again in my current VA Go CUE Yourself claim.

Broncovet, thanks again for the MOPH link....it is very good CUE info!

[Philip Rogers]

Hoppy - I think you can SC this, also, based on the buddy letter. Also, the courts ruled some yrs back that writings in a diary/journal must be considered as true, in the eyes of the court.

pr