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Dd-214 Omission As Basis For Cue?


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9 replies to this topic

#1 NJ_Devil_Dog

 
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Posted 29 August 2006 - 09:32 PM

Hello all,

I have a question regarding my claim and military awards.

I am currently appealing a denial of a 1995 claim for PTSD. I reopened the claim in 2003, and I sent the VA a copy of my DD-215. The reason being that I was awarded the Combat Action Ribbon for my service during the Gulf war. The award date was actually after I seperated in January of 1992, therefore the award didn't appear on my 214... (it actually wasn't an omission, it just hadn't been awarded yet) I received the 215 in after I returned from Afghanistan in 2003.

So here's my question.

Because the award is considered evidence of a combat stressor, would the 'constructive notice' ruling apply to the failure of the VA to consider this award as evidence? Therefore a CUE commited by the VA? There is a direct connection between my combat experiences and PTSD.

The other CUE I am persuing is because I believe, in the 1995 decision, the VA did not consider my outpatient records that include my diagnosis for PTSD.

I appreciate the feedback.

Gerald

#2 Vike17

 
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Posted 30 August 2006 - 12:15 AM

If the VA did not have or was unaware of the DD 215 and/or the Combat Action Ribbon Award when they made their decision in 1995, then this does not constitutre CUE. Evidence has to be in your VA records at the time of their decision for something like this to be considered a CUE.

Same thing with your outpateint records. Were these outpatient records from a VAMC or a private doctor? Even if there was a diagnosis of PTSD, but there was no record of a stressor, the VA had no choice but to deny the claim.

It's also a good bet that your two issues are "inextricably intertwined." See Harris v. Derwinski, 1 Vet. App. 180(1991).

Back in 1995 a claim had to be 'well-grounded' before the VA would assist in retrieving records. For example, if there wasn't a record of a streesor ect..., then the VA probably wouldn't set up a C&P exam to see if the veteran had PTSD.

Hope this helps!

Vike 17

#3 Berta

 
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Posted 30 August 2006 - 01:14 PM

But Vike- under Bell V Derwinski- it had to be constructively in VA's posession- didn't it?

I mean a DD 215 is a correction of a past error-

by the Gov -so therefore -I agree with the Devil Dog-
and believe he must make this point with the VA- if they are looking for combat award as proof of stressor-

I think this is a bonafide CUE.
On the DD 215 issue-

#4 NJ_Devil_Dog

 
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Posted 30 August 2006 - 05:12 PM

Thanks Berta and Vike,

I tend to agree with Berta on the constructive notice rulin of Bell. I believe it may be applicable.

I did have a C&P exam in '95, however the VA claimed that I was a no-show for the appointment, that's why I'm still waiting for my c-file (over a year now) to ensure that I'm not mistaken.... it's been so long ago that I cannot remember. However, if I did miss the exam I most surely re-scheduled within a years time!

I think that the issue of 'Not Well Grounded' may have something to do with this as well... from what I understand, it was somewhere around that time that the VA had to drop the well grounded claim and replace it with the 'Duty to Assist' policy.

The outpatient records were from the VAMC, so I believe they are covered by constructive notice...

I'll have to check out the Harris v Derwinski issue...

I just remember back in '95 when I got the denial letter, that I felt like they just did a shoddy job with my claim... a few months afterwards when I returned to the Lyons VAMC for treatment for PTSD. I was talking to the nurse who mentioned that from here observation, that my symptoms would be compensable. When She asked me if I had applied for disability, I said, "I did, but they denied them."

This was her response verbatum, "Oh, they always deny PTSD claims the first time around."

Needless to say I became so disenchanted with the whole system that I stopped persuing it until I came back from Afghanistan in '03. (I'm a retread from the Marine Corps with a 9 year break in service, then Re-upped with the National Guard in '01)

Anyway, thanks for the input, and as always I appreciate all the feedback.

Gerald

#5 Berta

 
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Posted 30 August 2006 - 05:20 PM

Gerald- the VCAA replaced the not well grounded stuff-in 2000.

As long as you did get that C & P-I feel this is a CUE.

(Lyons----My Volunteer VA ID card is from Lyons Hosp.I think they took my fingerprints and all that too)

How can a vet with a CAR have a PTSD claim that is not well grounded?

ridiculous -

I posted some CUE claims susccess here- BVA and the CAVC. they should be found under the search feature

#6 john999

 
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Posted 30 August 2006 - 05:56 PM

Is it true that the majority of soldier in Iraq get the CAR. In Vietnam there was no such thing just CIB and some other very specific combat awards like Air Medals with V and brone star with V. Many soldiers were in combat but never got any combat awards. I am trying to get CIB since I was assinged that MOS while in Vietnam. It means nothing except my own pride. The assignment to 11b is right in my personnel records along with an evaluation.

John

#7 NJ_Devil_Dog

 
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Posted 30 August 2006 - 06:13 PM

Woops, I guess I was off by a few years on the Duty to Assist issue, thanks for squaring me away Berta.

I guess I'll have to wait for my c-file to make some logical conclusionsions.

I remember when I first registered with the Lyons VAMC that I was asked if I was in combat, I replied yes. But as I mentioned I had no proof of that, not until I received my 215 in '03 at least. I understand that the Bell v Derwinski decision specifically states VA medical records being under constructive notice, whethethat might include proof of military service records (e.g. DD-214) fall under that category. I mean you have to provide them before you become eligable for treatment, right?

My 214 does contain the South West Asia campaign medal (x3), as well as the Kuwaiti Liberation Medals (KLM) as well as unit citation awards, but I guess it would be a bit of a pipe-dream to expect the VA to maybe connect the dots and even consider that the veteran might have more awards not mentioned on his 214. Just a kookie thought, but I'm wondering if making the argument that the end of the campaign date is still TBD????

Well, just like I said before, I'll have to wait to get my c-file until I can verify my thoughts on the matter...

Thanks again,

Gerald

#8 NJ_Devil_Dog

 
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Posted 30 August 2006 - 06:24 PM

Is it true that the majority of soldier in Iraq get the CAR. In Vietnam there was no such thing just CIB and some other very specific combat awards like Air Medals with V and brone star with V. Many soldiers were in combat but never got any combat awards. I am trying to get CIB since I was assinged that MOS while in Vietnam. It means nothing except my own pride. The assignment to 11b is right in my personnel records along with an evaluation.

John



John,

The CAR is specific to the Navy/Marine Corps, it has no associated award and was instituted in 1969, but to answer your question, every Marine I've ever met that served in Desert Storm received one, which isn't suprising because of the Marines being the smallest branch of the uniformed services. I doubt that they handed them out arbitrarily though, because I know for a fact that the people I've talked to all had some type of combat service there.

I would also add that it probably isn't as prestigious as the CIB, but like the CIB, the VA considers it to be evidence of a combat stressor. So maybe persuing your CIB may not be merely for your own pride, jmho.

As a matter of fact the Army has instituted two badges for non-infantry combat, one is the Combat Medics Badge, and the other is the Combat (something-or other badge); they include some very specific critierion for qualification as well. I mean I was in Afghanistan foe a year, experienced numerous rocket and mortar attacks on the base, but I don't qualify for it.

Gerald

Edited by NJ_Devil_Dog, 30 August 2006 - 06:44 PM.


#9 Guest_jstacy_*GuestMember

 
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Posted 30 August 2006 - 06:28 PM

I took this from the Directive. It stated changes in documentation. ( DD-214) applies. Effective dates.
I Think number 2 applies to you NJ Devil DOg.


(g) Correction of military records (38 U.S.C. 5110(i); Pub. L. 87825). Where entitlement is established because of the correction, change or modification of a military record, or of a discharge or dismissal, by a Board established under 10 U.S.C. 1552 or 1553, or because of other corrective action by competent military naval, or air authority, the award will be effective from the latest of these dates:

(1) Date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim;

(2) Date of receipt of claim if claim was disallowed; or

(3) One year prior to date of reopening of disallowed claim.

#10 NJ_Devil_Dog

 
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Posted 30 August 2006 - 07:23 PM

Ok, I just verified this under 38 USC, Part IV, Chapter 51, Sub II, para (i), and it looks like it pretty much answers my question....

I'm pretty much entitled to one year retro from the re-open date of the disallowed claim because this is the latest date under the criterion. I guess the only chance to get anything earlier than that would be an issue of semantics..... specifically whether or not you could consider the DD-215 a "correction" of my miltary records or actually an "updated" version of my records because the award was granted after I seperated from the service. I realize that this is probably be a moot point, but if Bill Clinton could argue the definition of the word "the" who knows! I'm joking of course!

I guess one year retro is better than nothing, but at least I still may have the CUE on the VAMC outpatient records back to '95!

Thanks Jstacy and all,

Gerald