BVA Case 95-984: Ptsd

Court of Appeals for the Federal Circuit (Federal Circuit) affirmed the Court's decision that the November 1972 VARO decision did not contain CUE, but remanded the matter to determine whether the VARO breached its "duty to assist" in 1972 by failing to obtain certain requested service medical records (SMRs) that had not been previously obtained.

The Federal Circuit held that if the VARO "breached the duty to assist in 1972, then the 1972 decision [wa]s not final for the purposes of direct appeal" and therefore, the appellant's claim would still be open and unadjudicated.

In sum, the Court asked the parties to address the following three questions: (1) Does this Court have jurisdiction over the issue remanded by the Federal Circuit?; (2) Was the Secretary required to provide assistance to the appellant in 1972?; and if so (3) Did the Secretary fulfill his duty to assist? In response, the parties agreed that the Court had jurisdiction over this matter, that the Secretary was required to provide assistance to the appellant in 1972, and that the Secretary had breached that duty to assist.

Thus, the parties, both quoting the Federal Circuit's opinion, asserted that the Court should "remand the case to permit the [Secretary] the opportunity to fulfill the duty to assist and to review the case to determine whether the additional evidence, together with the evidence that was previously of record, supports the allowance of benefits sought on appeal.

In March 1993, he filed with the RO a statement as follows: The rating decision of November 6, 1972, is clearly erroneous in its denial for service connection of a nervous condition claimed by the veteran.

The action taken by the original office of jurisdiction is clearly erroneous in that they failed to properly develop this man[']s claim, by not requesting necessary clinical records from the department of service or the facilities named.

The duty to assist in the development of the claim was clearly absent.

Your reasons for denying the earlier effective date based on a clearly erroneous decision dated 11/6/72 are not valid.