ptsd Jurisdiction Of C&ue

[RodnAnn]

My Vietnam veteran husband is at 50% SC for PTSD & has been since 2008. 1990 was the first time he filed a claim for PTSD & he let that claim become final. Again in 2002 he filed a claim for PTSD & when he was denied he did not appeal and that claim became final. At the time of the 2 claims mentioned we lived in Alabama. So these claims were decided in Montgomery, AL. After moving to Mississippi, he got his claim re-opened in 2008 by submitting new and material evidence. That claim was decided in Jackson, MS. In July 2012 he filed for an EED on his 2008 award for PTSD( which at the time was at 30% ) to include C&UE & to extend back to 2002. At the same time he had an appeal at the BVA for an increase to 100% for the PTSD. When they ruled on the appeal in November of 2013 they mentioned the C&UE:

" the issue of whether clear and unmistakable error was committed in the prior final rating decisions of November 1990 and November 2002 has been raised by the record , but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action."

My question is "Has anyone experienced a similar situation and can anyone give us any insight to where the claim for C&UE ended up?" We don't know where to go for answers and we really don't understand what this statement means. Is the claim for C&UE at the regional office in AL or MS?

[john999]

You have to file the CUE and identify where it was made ...at the VARO for instance. You need to specify exactly what the error was and when and where it was made.

[FormerMember]

Your Regional Office (VARO or Veterans Service Center) closest to you that you have been "doing business with" is the one with your c-file. They would be in charge of doing a remand but that does not preclude the Appeals Management Center (AMC) from doing it either. I've seen that happen. What in all probability will occur is that your c-file is returned to the VARO in Jackson, MS and they will do the initial decision of whether there was CUE. I'd bet they deny initially without even looking at the record but then I don't think much of VA intelligence-gathering either.

For answers, go to https://iris.custhelp.com/ and click on the bottom right "Ask a question". It's a little bit vague but just click on anything that stays yellow again and be sure to answer any sub-questions. Ask the IRIS help line what the current status of your remand from Citation Nr, XXXXXXX, Decision date and Docket No. XX-XX XXX is. This identifies your Board of Vet. Affairs claim appeal more clearly. Face it. VA needs all the help they can get.

I see by the use of C&ue that you may have discussed this on a site with a pink background to it. Relax. The VA themselves, as well as the Court, refer to it as CUE-always capitalized and always absent an ampersand. Best of Luck with the EED. I've seen a few wins on this based on records turned up by Joint Center for the Research of Uniformed Records (JCRUR). VA should have known to look for records you identified that would be expected to be a matter of record. Date of combat incident, location, unit identification, brief description of incident and stressor that would clearly point to where, when and with who. Buddy statements would be excellent if available. That falls into the first requirement that the correct facts, as they were known at the time, were not before the adjudicator.

a

cp

Edited February 18, 2014 by asknod

[FormerMember]

Additionally, you cannot use new Buddy statements to substantiate a win for CUE. It must be done with the existing evidence of record (EOR) at both of the prior denials that were not appealed. However, if appealed to the Court above, the Judge(s) may take "judicial notice" of the fact that you were confirmed to be a member of the unit when it engaged in combat. Nothing personal may be added.

a

cp

[john999]

The VA regulations used in a CUE are the ones that were in effect at the time of the CUE. My CUE occurred in 1973. Between 1972 when I filed the claim and 1973 when the claim was rated the rules for rating my disability changed. This caused a remand when my case finally got to CAVC because the BVA had used the 1972 rules to deny my claim. So my claim was shipped back to BVA, and they used 1973 rules to deny my CUE. This took an extra 18 months. Time does fly when you file a CUEl. Decades go by while you wait. At the VARO level where the CUE actually occurred the VA went on a wild goose chase to try to find a reason to deny. They jumped ahead 17 years to a C&P exam that denied an increase. I had to remind the dimwits that they could not add nor detract evidence from the 723-73 record. They just denied the claim anyway after I had written this nice brief with a bunch of citations. No VARO is going to stick their neck out and be the one who pays some old vet 30 years of 100% retro. They just pass the buck to the BVA who passes it to the CAVC. I imagine it will be remaned back to BVA for some reason and we start all the way back to the VARO one day.

[carlie]

My Vietnam veteran husband is at 50% SC for PTSD & has been since 2008. 1990 was the first time he filed a claim for PTSD & he let that claim become final. Again in 2002 he filed a claim for PTSD & when he was denied he did not appeal and that claim became final. At the time of the 2 claims mentioned we lived in Alabama. So these claims were decided in Montgomery, AL. After moving to Mississippi, he got his claim re-opened in 2008 by submitting new and material evidence. That claim was decided in Jackson, MS. In July 2012 he filed for an EED on his 2008 award for PTSD( which at the time was at 30% ) to include C&UE & to extend back to 2002. At the same time he had an appeal at the BVA for an increase to 100% for the PTSD. When they ruled on the appeal in November of 2013 they mentioned the C&UE:

" the issue of whether clear and unmistakable error was committed in the prior final rating decisions of November 1990 and November 2002 has been raised by the record , but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action."

My question is "Has anyone experienced a similar situation and can anyone give us any insight to where the claim for C&UE ended up?" We don't know where to go for answers and we really don't understand what this statement means. Is the claim for C&UE at the regional office in AL or MS?

What EXACTLY was stated in your submission of a CUE ?

It must be VERY specific and related directly to laws and regs.

As asknod already posted - the submission of CUE has been remanded

to your RO for action.

Your submission of CUE has never been addressed by your RO and that's why

the BVA does not yet have jurisdiction to address this issue.

[FormerMember]

If Rod and Ann are self-represented or represented by a VSO, then they get the benefit of Comer v. Peak and great judicial deference must be shone them. They can actually stumble around in the dark as to what, specifically, is the CUE if it is fuzzy. They can get away with this right up to the CAVC if they are pro se. At that point an attorney could take over and claim they were Hansel and Gretel in the woods and not knowledgeable enough to provide a good claims defense.

How the evidence was decided cannot form the the substance of the CUE either. The VA is entitled to the presumption that the evidence was "self-evident" enough to warrant the decision. This is going to have to hinge on "the correct facts, as they were known, were not before the rater"- somewhat of a constructive possession of the evidence argument and VA was not forthcoming with it. http://asknod.wordpress.com/2011/09/27/cova-bell-v-derwinski-1992-constructive-possession/

If VA has all the evidence of where Rod was via his assignment history in-country (with JCRURS), then they were constructively in possession of the knowledge of whether he was in a combat situation that would provoke a stressor or where Rod could reasonably be expected to feel fear that would provoke PTSD.

Time to search using the search function at the CAVC site to pull up some good cites.

a

cp