CAVC Case 95-232: PTSD

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · October 1, 1996 · KRAMER

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

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60%$1,435.02
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Outcome
Reversed
Decision Date
October 1, 1996
Judge
KRAMER
Service Era
Not specified

Conditions Claimed

PTSDDepressionAnxietyPsychiatricBackHearing LossHipSkinEye

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Issues on Appeal

PTSDDepressionAnxietyPsychiatricBackHearing LossHipSkin

Why It Was Decided This Way

An August 1986 RO decision stated that "no new and material evidence [had been] submitted which would warrant reversal of prior denial.

In a November 1991 BVA decision, the Board concluded that evidence submitted since the January 1987 RO denial was new and material, and the Board remanded for the RO to obtain SSA records and an examination by a board of psychiatrists.

6 In the November 15, 1994, BVA decision here on appeal, the Board determined that "the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection for PTSD".

The Board determined that there had been no clear and unmistakable error (CUE) in the final, unappealed March 1985, August 1986, and January 1987 RO decisions.

As to the March 1985 RO decision, the Board concluded that the November 1985 statement from the veteran was not an NOD and that the newly submitted outpatient records and February 1985 hospital records were cumulative because they "merely continued to reflect the divergence of diagnostic impressions" in that they diagnosed both PTSD and personality disorders.

44, 53 (1995) (holding that Board, on claim to reopen, erroneously failed to consider CUE claim based on RO's prior denial -- in violation of 38 C.

8 A failure to fulfill the duty to assist cannot constitute CUE.

According to applicable current law, the Secretary must reopen a previous final disallowance of a claim when "new and material evidence" is presented or secured with respect to the basis for the disallowance of that claim.

Authorities Cited

Barnett v. BrownBlackburn v. BrownButts v. BrownColvin v. DerwinskiDamrel v. BrownDuran v. BrownEddy v. BrownEnvironmental Defense Fund v. CostleFlash v. BrownFugo v. BrownGilbert v. DerwinskiGlynn v. BrownHamilton v. BrownIn Russell v. PrincipiLittke v. DerwinskiLizaso v. BrownManio v. DerwinskiMasors v. DerwinskiRussell v. PrincipiSee Bethea v. DerwinskiSee Caffrey v. BrownSee Dinsay v. BrownSee Evans v. BrownSee Spencer v. BrownStruck v. BrownSuttmann v. Brown

Regulations Cited (38 CFR / 38 USC)

38 CFR 20.201 (1995)38 CFR 3.105(a)38 CFR 3.105(a) (1995)38 CFR 3.15638 CFR 3.159 (1994)38 CFR 3.303(a)38 USC 300838 USC 4004(b) (1982)38 USC 5104(a)38 USC 5104(b)38 USC 5107(a)38 USC 510838 USC 7104(d)(1)38 USC 7105(d)(1)38 USC 7261(a)(1)38 USC 7261(a)(3)

Denial Type

Credibility|Not New Material|Preponderance Against|Duty To Assist|Inadequate Exam|Cue

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Referral disclosure: VetAid earns a referral fee if you become a paying REE Medical client through this link — it helps keep this site free. REE Medical provides paid medical evidence; it is not a law firm, VSO, or claims agent, and VetAid has not independently verified its services. VSOs and VA-accredited representatives will help you file your claim at no cost, and no one can guarantee a rating increase.