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Application Of 38 U.s.c.s. § 1154(B) To Naval Service?


CBaker84

Question

Greetings, I'm looking for any information regarding the application of 38 U.S.C.S. § 1154(b) to Naval Service, specifically the requirement of "engaged in combat." I'm not sure how it's considered whether participating in certain events, strikes, or other standard naval operations (interdiction, surveilance, intelligence etc.) is considered to be within the realm of "engaged in combat" as defined by the statute.

My general understanding is that participating in events constituting an actual fight or encounter with hostile units or instrumentality should suffice. But, I'm not sure how fight preparation is viewed (i.e. surveillance, intelligence gathering, observations).

I also have questions regarding how we prove things that we did - but didn't do? In the, we were there - but not there kind of sense? On a submarine we receive hostile fire / imminent danger pay just like other forces stationed in the combat zone, as well as tax free etc.

Any ideas, thoughts? The reason I am looking at this is service in a combat zone reduces the evidence standards.

Edited by CBaker84 (see edit history)
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Google the following: VAOPGCPGCPREC 12-99

This is a VA memorandum dated 10/18/1999 from the VA general counsel to the chairman of the board of veterans appeals in which the general counsel addresses the question: What is the definition of the phrase "engaged in combat."

Hopefully this will help you.

Good luck to you.

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Google the following: VAOPGCPGCPREC 12-99

This is a VA memorandum dated 10/18/1999 from the VA general counsel to the chairman of the board of veterans appeals in which the general counsel addresses the question: What is the definition of the phrase "engaged in combat."

Hopefully this will help you.

Good luck to you.

See I think I'm still stuck on the area of them saying that the list is not exhaustive. For instance, I would definitely argue that flight operations off a carrier etc. would be participating in combat as far as naval warfare capabilities go. I get the feeling that they mean only like boots on ground combat, but legally speaking - I don't think what they wrote amounts to that. I could make legitimate arguments for cyberwarfare, covert intelligence operations, surveillance, drone pilots, etc. I guess whether or not the definition could legally expand that far would be a legal question the courts would have to determine.

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If you could provide more info regarding the type of disability you are claiming and the circumstances of how you received the disabling condition, Hadit members would be better able to assist you. If you were involved in special operations, covert activities or other types of classified activities; just provide as much info as you are permitted to do so. Be advised the VA can obtain some medical and other records of former military personnel whom were injured or disabled during special operations activities (refer to VA fast letter 09-52).

If you are contemplating filing a PTSD claim keep in mind that VA regulations regarding PTSD stressors changed significantly in 2010.

Hadit member Berta is very knowledgeable of the 2010 changes.

Again, it is difficult to really offer advice or opinions with the limited info you provided. If you were only seeking a legal opinion regarding 38 USC 1154, perhaps others might offer some opinions.

Good luck.

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  • In Memoriam

Yes, this is the question since most of wars now will be fought from US Navy. Many new US Navy injuries are going to have to be reconsidered by these Army Generals that are in charge of how the laws are implemented. Boots on Deck will most likely replace current psycho babble.

I have papers saying that I was combat deployed for VN. I have other papers saying that I was engaged in combat operations and an MUC from specific combat operation that resulted in deaths. Somebody here at hadit told me about this years ago. I can't remembeer who it was. I was considered engaged in Combat.

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I know how you feel bud. In my case being Navy, everyone thought that I was aboard ships during OIF/OEF, but I always tell them that I Served on the USS Desert, LOL! In 10 years, I spent 10 days on a ship for Carrier Training, as I was Naval Aviation. Most folks Military or Civilian have no clue that the Navy has more Planes then all the other branches combined, and they are the ones dropping the bombs over there.

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The PTSD regulations are here:



We also have more discussion on PTSD in our PTSD forum.

You will need a PTSD diagnosis from a VA MH provider and then either citations on your DD 214 that denote combat actions (PH,CIB, CAR,) or

be able to show that you fall under the criteria of the new regulatioions, which is in part:

"[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. "

A veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of that veteran or others, and that veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. The occurrence of an actual event or circumstance is necessary. "

The 'event' is what the VA would consider a stressor. ( If you are claiming PTSD)

This part of the new regulation also is critical:
" In making this determination, VA must duly consider the places, types, and circumstances of a veteran's service as shown by the service record, the official history of each organization in which such a veteran served, a veteran's medical records, and all pertinent medical and lay evidence. The new rule is limited to cases in which the claimed stressor is related to a veteran's fear of hostile military or terrorist activity. " See 75 Fed. Reg. 39843 (Jul. 13, 2010).

Critical because this new regulation regards only PTSD claims. Other psychiatric disabilities, not diagnosed as PTSD, have other ways of proving an inservice event caused the disability,or was evident inservice by virtue of the veterans' SMRs.

Many Navy vets do get compensated for PTSD. A Friend of mine served on the USS Iowa in 1989, not in combat.He has PTSD from the horrific turret accident the USS IOWA suffered from, during a gunnery exercise in which 47 crew men were killed.

PTSD does not necessarily mean combat service at all. Nor does a diagnosis of other mental disorders, claimed due to service.

But claims filed after the 2010 regs for PTSD, need the PTSD diagnosis from a VA shrink as well as a stressor which can be proven.Or which can be conceded by VA with any of the awards I mentioned above on the DD 214.

If we know more about what you are claiming we can help more.

If you are concerned if your MOS and military records are classified, and it seems you were in intelligence MOS,

when my daughter left the Military they assured her that they can declassify records if needed for any VA claim. ( She was USAF INTEL ,Top Secret , classified, 7 years, OEF vet) so that will not be an issue.

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  • In Memoriam

In the navy it is NEC (Naval enlistment code). There are no MOS in navy. This could have changed, but I don't think so.

Berta was one of those that really help me with this. You don't have to be in combat.

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Gee thanks Stretch as to the 'no Navy mos! I forget that! Forgive me all ...I am ,just a piss ant civilian.

I think my daughter corrected me many times too...no USAF MOS either .

But as a tactical warfare student (AMU)

I sure agree with you that our Navy will involve future wars to the point that "Boots on Deck" will sure be a very prominent VA term of the future.

And as US VET said:

"Most folks Military or Civilian have no clue that the Navy has more Planes then all the other branches combined, and they are the ones dropping the bombs over there." Indeed.

Good points men.

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"(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence"

This was designed for combat Vets who were injured or wounded and obviously couldn't report to the sickbay that had their SMRs at the time. Then lay testimony will suffice in lieu of entry in a service medical record.

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This is a paragraph from 38 USC 1154(b) and is also contained in the October 18, 1999 VA memo I cited in my post above.

I agree with GatorNavy's interpretation of the paragraph. If a veteran engaged in combat does not have SMRs, the VA should give the veteran the benefit of the doubt and rely on lay evidence (veteran's statement in support of claim, buddy statements, etc,) provided by the veteran to support their disability claim for their service connected injury or disease incurred as a result of the veterans participation in the combat.

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