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.

[carlie]

I took almost a year off due to my own medical issues and these problems could re-occur on no notice at any time.

Hoppy,

I remember you needing some personal time and your health had

taken a tumble - you were surely thought of and missed around here.

[Hoppy]

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.

The denial to re-open is still during the appeal period. Can I seek CUE on a claim that is still in an appeal period. I was thinking of asking for something called a 930 end product. They decided the claim without doing their job. They did not consider issues related to the changes in the m21 between 2004 and present.

Sharon posted in May 2009 that .. A 930 end product is assisgned when the RO has already taken credit for completing a claim and they have to readdress an issue in that claim. I have not heard from Sharon in a long time.

"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 am thinking of modifying the terminology from the word “modifiers” to discretion. The instruction does not state that the rater has discretion to not accept the statement for reasons other than assessing the time and place of service of the witness. I can also argue that since they did address one discretionary issue (time and place of the witness) then any other discretionary issue cannot be addressed without a change in the instruction. I used this argument to drive a corporate trustee nuts who was misinterpreting the terminology of a trust document and forced them to bust a trust because they misconstrued the terminology allowing discretion to make decisions.

PR

I agree and when I submitted the journal (copies) to the RO I did cite a really good case in which a journal was used to award a personal assault claim that had been previously denied due to lack of confirmation of the stressor. The court calls journal entries made at the time of the event contemporaneous statements that have the same effect as if they statement was of record at the time of the journal entry. The claim was awarded without any other evidence other than the journal confirming the assault at the time it happened.

[Berta]

“Can I seek CUE on a claim that is still in an appeal period. “

Hoppy I asked the VA to CUE itself long ago when they sent me a ridiculous letter....I didnt really know what I was doing but they corrected the letter very fast ( in 1996 I think)

I also used that tactic to get a double DRO review in 2006 I think it was.

I used that tactic in 2011 when the VA erroneously denied my AO IHD death claim.

Within weeks (VACO was involved) they reversed and awarded the claim.

And I filed another request some months ago that they CUE one statement in the AO IHD award letter as it was monetarily detrimental to me.

All of the above (forgot....my daughter said I asked them to CUE her Chapter 35 award...I dont remember but .I wrote the NOD (maybe the CUE stuff was in it) and they fixed it in mere weeks) It was a very detrimental and serious error.And her first contact as a vet with the VA.

Boy was she pissed.

All of these requests I made nvolved Legal errors that I requested them to CUE within the appeal period ( prior to NOD deadline)

This link here has one of my claims that can be used as a template in some cases, , it is for my pending CUE request (during the appellate period)

No regs on this tactic...I made it up...and it has become the first tactic I will consider in the future if I get any bogus stuff from the VA.

I have a current Cue Yourself Request pending, but due to backlog I did have to file a NOD on that (reminding them that the CUE request of the AO IHD award was filed by me prior to the NOD filing date)

And I have a Section 1151 claim pending.

It makes sense to me (and I discussed this tactic with NVLSP) that, if the VA makes a Legal error in a decision.... then prior to filing the NOD, the claimant should expect them to fix the Legal error if it was in fact detrimental to them.

How can one properly even appeal a decision that contains a legal error and why should that error force the claimant into the hamster wheel of the formal lengthy appeals process, when, in fact, a well paid and well trained VA employee made the error and no one else caught it at the RO ,if they reviewed the decision?

[Hoppy]

Berta, and other

“All of the above (forgot....my daughter said I asked them to CUE her Chapter 35 award...I dont remember but .I wrote the NOD (maybe the CUE stuff was in it) and they fixed it in mere weeks) It was a very detrimental and serious error.And her first contact as a vet with the VA.”

How does asking the VA to CUE itself result in the claim immediately being reviewed? Would a CUE claim be reviewed before it is placed at the bottom of the sack of other claims?

Is it possible that when you ask them to CUE themselves your statement identifies a situation whereby the see a 930 end product.

I have definitely seen a 930 end product go back to adjudication and result in a new decision three weeks later. This 930 end product was initiated because the RO agreed there was evidence in the file that was not reviewed.

The error I am dealing with is damaging when determining the outcome of the claim and for determining the protocol to properly and fully develop the claim. Favorable evidence that is central to the claim was not listed on the evidence sheet nor was it discussed in the reasons and basis. The veteran contends that his buddy letter is favorable, salient and most relevant to his claim. This letter was not identified on the evidence list nor was it discussed in the decision. The veteran contends that the law does not allow a rater to fail to identify on the evidence list and discuss issues and favorable evidence most salient and relevant to the claim. Foremost the decision would be required to present sufficient language as to show that a least the buddy letter was reviewed by both the rater and the JSRCC coordinator See Timberlake v. Gober, 14 Vet. App. 122 (2000) and numerous other citations omitted, (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

This evidence was in the file and referred to in a denial 9 years ago. However, the laws and procedures for development of the claim as outlined in the m21 have changed significantly in recent years. Confirmation of the stressor with deck logs was not initiated or even addressed in 2004. The new denial addressed the issue of confirmation of the stressor. The evidence list identified that there was a note from the JSRRC coordinator.

The buddy letter contains information necessary to initiate a request for deck logs. The witness stated in the buddy letter the name of the perpetrator, the rank of the perpetrator, the name of the ship, the date and a statement that he was present at the time of the crime and he saw and heard everything. The witness stated he saw the perpetrator being taken off the ship in restraints by the marines. The veteran has no reason to think that this information is contained anywhere else in the file. He was not asked to provide any information in regards to confirmation of the stressor in 2004. The VCAA letter only asks for information relating to a diagnosis of PTSD.

I stated in my letter to the VA; The veteran does not feel he should endure a lengthily appeals process unless it is clear that the appropriate favorable evidence was considered by the raters and by the JSRRC coordinator at the time of the 2013 denial to re-open his claim.

I also threw in the following statement:

Also consider that the veteran recently submitted new and material evidence that may corroborate the event making the search for addition JSRRC reports a mute issue. If in fact the 930 end product result requires an immediate re-evaluation of the claim and action taken by the JSRRC coordinator, the VA might want to immediately consider this new evidence now for the purpose of saving significant man hours of labor by the JSRRC coordinator and the Navy deck logs section. The Navy deck logs section has in fact posted on their website that sequestration has significantly impacted their ability to produce documents. The newly submitted evidence is an entry from the veteran’s personal journal that he kept while on active duty. The veteran is familiar with numerous BVA cases in which journal entries are considered, contemporaneous in time, as such are considered credible. The journal does support the reported events in the buddy statement.

[Berta]

“How does asking the VA to CUE itself result in the claim immediately being reviewed?”

There is no guarantee at all on that Hoppy. Two CUE requests I mentioned were almost 8-10 years ago....it was a different VA then and the results were fast.

But if you read some of my posts on the 2006 CUE request, I aggressively called their attention to the CUE . The double DRO review was set up quickly. The DEA matter my daughter had.... I wrote the NOD but she had to read and sign it and it was very firm on stating what they did wrong legally, (I enclosed the actual regs on that), how it was detrimental to her, and that her evidence ( her DD 214) was completely ignored,yet the DEA application specifically required a DD 214,if the DEA dependent had Military service.

It was a CUE within an award letter and DEA certificate. The DEA award was for one month of Chap 35.Th new award letter (she called me about 3 weeks later when she got it) was for 7 years of Chapter 35.

Also when I read the Dec 2011 AO IHD denial containing a CUE and got that reversed within weeks.....but I took aggressive steps to do that too. VA Central got involved .

“Would a CUE claim be reviewed before it is placed at the bottom of the sack of other claims? “

In my pending claim for VA to CUE itself, the NOD date was looming close and I didnt expect this time,due to the backlog ,for a fast decision so I filed the NOD but clearly stated in the NOD that the CUE Request was dated prior to the NOD, thus they should resolve the CUE request issue first.

I geared that and everything I send to VA at this point, for the BVA.

I believe a lot of claims stuff from vets and widows/widowers, might be going to the bottom of the 'stack' due to the court order to get this backlog fixed.VA pulled out those claims over 2 years old but by dping that, I wonder how many newer claims got out of the queue.

Hoppy, sometimes I hesitate to make suggestions like the Go CUE yourself approach. I am not the usual VA claimant.

When I filled out my Chapter 35 college app in 2003 one question was something as to why I chose the specific degree program I wanted.

I stated there to the VA that , although I am a civilian, I wanted to attend a Military University because I work on a battlefield , also known as the the VA Disability Claims process.

After 4 years of instruction, primarily by the USMC, and graduating with Honors, .I absolutely refuse to allow the VA to ---k with me,if they make stupid legal errors that involve my proper widow's benefits.

There is no regulation providing us claimants a way to get the VA to CUE itself.

But this maneuver has worked for me.And the link as the template for my recent request I posted here, which will succeed in,at the RO level or at the BVA ,is because the VA did commit a clear and unmistakable error.(prime facie as the lawyers would say) and they will have to fix it.

The Nehmer award in that same link here resulted from a CUE yourself claim I filed via IRIS as a complaint and via Faxes to Phila VARO, and Buffalo VARO.I raised all sorts of Hell.

December 7^th or 8^th 2011 got decision, developed a plan of attack,(meaning how I would shape the CUE request) and by Dec 22 I got posthumous VA C & P exam, and got a proper award letter right after the holidays in early Jan 2012.Otherwise I would still be holding my hand on my butt in the BVA queue waiting for some lawyer who could read, to award the claim.

It was an unconscionable error in that decision and another slap in the face to my memories of a deceased combat veteran husband who VA killed with piss poor health care in 1994.(FTCA /1151)

I would have sent the decision to the H VAC if they didnt fix it (and to the Washington Post) ….that is how bad it was.because it was ( and still is if I need it) prime facie evidence that our Federal Gov pays raters and adjudicators who cannot read even their own M21 manual ,not to mention 38 CFR,or in my case ,the new Nehmer regulations.

I wonder how many other AO widows got the same ridiculous decision that I got.

It appears to me that your vet has the same basis I have used to get VA to CUE itself as they have violated 38 CFR, 4.6:

§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.

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

Change 118

"CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims.

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person."

(PS I use M21-1MR printouts a lot as evidence on these types of CUE claims, because they contain all of the legal citations in 38 CFR/38 USC. That saves paper and redundant printouts from 38 USC/CFR.)

Edited September 22, 2013 by Berta

[Berta]

“How does asking the VA to CUE itself result in the claim immediately being reviewed?”

I forgot....I faxed my 2006 CUE request to the VARO director in Buffalo as well as filed it as a compliant via IRIS.

I might have a fax number for this vet's RO if you tell me what RO it is.

The backlogged claims are supposed to be resolved by end of this month....?

Fox news the other AM said there were only 750 claims left in the backlog.....dont know where they got that info from.

Or how they define backlog .....because there are now claims at VAROs ,not technically in the court ordered backlog stats,that will be hitting the 2 year mark soon.