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?

[Berta]

I think that successful CUE BVA decision I posted was solely based on 38 CFR.3.156 and not on 38 CFR 4.6.. I regret I didnt it assess it well enough at first.......This BVA decisions contains other citations that could bolster your CUE claim.

Actually I am completely stunned by the VA's ridiculous denial of 2002:

“The award was listed on his DD214. In 2002, he had a diagnosis of PTSD by a VA doctor, and the rater had access to his DD214. Yet the decision said that his PTSD was not service connected. “ That VA statement is beyond my comprehension, how they managed to deny...seeing he had the PH ( a bonafide stressor event causes receipt of the PH) which they finally figured out, after the fact, saving money....which only a CUE could recover.

In Dec 2011 the VA sent me a letter that said (my husband a deceased USMC Vietnam Vet) never had evidence of IHD in service and they denied my Nehmer AO IHD claim. Anyone reading this knows how LUDiCROUS that statement was.I went ballistic and made them CUE themselves and by Dec 23 I knew a new decision had been render and by Mid January 2012 I had the AO IHD award and the cash they owed me. The statement was made by a rater trained in the new Nehmer Court Order.
All incountry Vietnam War Vets have been presumed to have been exposed to AO. My husband was even in the original AO settlement fund and his unit was at exact time and place on the AO spraying maps.

I need time to find the regulations I used when I did that CUE .. I am sure I used 38 CFR 4.6 and also used the AO presumptive regs.
But I did that by Fax to the VARO and an IRIS which was strong enough for VA Central to call me.I dont have documentation of the phone call.


I recently got a upgrade to my PC and have not had time to find the Fax or the IRIS. In 2005 I used 38 CFR 4.6 as well to get a double DRO review very fast....but I think there is a PTSD CUE claim at the BVA or even maybe here somewhere,decided by the BVA, that contains some strong legal citations in addition to the established Policy of the VA ( 38 USC 4.6) tjhat they will consider ALL probative evidence.

The problem here with your issue and with what I went through many times with VA, is that they cannot or are unwilling to

READ! How does a rater miss a PH on a DD 214?





"CUE is recognized to be a very specific and rare kind of error of fact or law that compels the undebatable conclusion, to which reasonable minds could not differ, that the result in the decision in question would have been manifestly different but for the error." Fugo v. Brown

and:

In Damrel v. Brown, 6 Vet. App. 242, 245 (1994), the Court explained that in order for clear and unmistakable error to exist: (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. See also Russell v. Principi, 3 Vet. App. 310, 313 (1992).

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files3/1326463.txt

Also I went over Myler V Derwinski (my favorite CUE claim):


"Where evidence establishes such error, the prior
decision will be reversed or amended.” 38 C.F.R. ù 3.105(a) (1991).
Such error has been described as the failure by the VA to apply or
observe the requirements of a regulation or statute prejudicial to the
veteran, Bentley v.
Derwinski, U.S. Vet. App. No. 89-70, slip op. at 6 (Sep. 13, 1990);
Akins v. Derwinski, U.S. Vet. App. No. 89-115 (Apr. 23, 1991), and thus
qualifies as administrative error under 38 U.S.C. ù 503(a) (formerly ù210©(2))

[Berta]

I somehow just found my CUE FAX....didnt find the VACO complaint yet---

I must have been really pissed off.......and unfortunately I didn't define one specific legal evidentary regulation they broke ....

I covered them all:

I stated:
"The VA broke all evidentiary regulations in 38 USC ,38 CFR as well as those regulations within M21-1MR, and also defied the Nehmer Training letter as prepared by NVLSP"

"This is to follow up on my IRIS service complaint dated December 6th,2011.

It is regarding the decision I received yesterday from the Philadelphia VARO re: 310/2POST/XXX
My C file number is XX XX XXX XXX.

I want the VA to immediately CUE this decision and then do it right."

They complied. (after a little more yada yada by phone to and from VA Central)

[john999]

I think you will win that 2002 denial of PTSD for lack of stressor. He had PH and they knew it or should have known it.

[RodnAnn]

Berta,

Should I rewrite the CUE and include all you stated here that I left out?

john999,

I hope you are right!

[Berta]

I would definitely cite the 38 USC 4.6 regulation :


Title 38: Pensions, Bonuses, and Veterans' Relief

CHAPTER I: DEPARTMENT OF VETERANS AFFAIRS

PART 4: SCHEDULE FOR RATING DISABILITIES

Subpart A: General Policy in Rating

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. “


and also cite this:

"Where evidence establishes such error, the prior
decision will be reversed or amended.” 38 C.F.R. ù 3.105(a) (1991).
Such error has been described as the failure by the VA to apply or
observe the requirements of a regulation or statute prejudicial to the
veteran, Bentley v.Derwinski, U.S. Vet. App. No. 89-70, slip op. at 6 (Sep. 13, 1990);
Akins v. Derwinski, U.S. Vet. App. No. 89-115 (Apr. 23, 1991), and thus
qualifies as administrative error under 38 U.S.C. ù 503(a) (formerly ù
210©(2)). Thompson, slip op. at 4."

As found within Myler V Derwinski , Case No. 90-1098, (1 Vet. App. 571 (1991).

I think everything else is fine.

[RodnAnn]

Berta,

Thanks!

Maybe I will post the final document with the personal info blocked out before I send it.