CAVC Case 97-1192: PTSD

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · Sep 6, 2000 · 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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Rating	Monthly (2026, incl. 2.8% COLA)
10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Outcome

Dismissed / Affirmed / Vacated

Decision Date

Sep 6, 2000

Judge

KRAMER

Service Era

Not specified

Conditions Claimed

PTSD Back Hip Skin TDIU Eye

Issues on Appeal

PTSDBackHipSkinTDIUEye

Why It Was Decided This Way

The appellant argues as follows: (1) that the Federal Government failed to provide documentation of his exposure to Agent Orange and biological and chemical warfare agents (Argument 1); (2) that VA failed to consider as a PTSD stressor his survival of a shipboard fire during service (Argument 2); (3) that a 1999 Board decision awarding a 100% disability rating for a service-connected closed head injury assigned an incorrect effective date (Argument 3); (4) that he is entitled to retroactive pension benefits pursuant to 38 C.

ained clear and unmistakable error (CUE) (Argument 5); and (6) that the Board in 1990 failed in its duty to assist the appellant by failing to obtain Social Security Administration (SSA) records pertaining to a 1989 award of disability (Argument 6).

In a March 1990 decision, the Board denied the appellant's pension claim on the basis that his disabilities, while limiting his ability to engage in some forms of employment, did not preclude substantially gainful employment.

In the 1997 decision here on appeal, the Board determined that a statement on the April 1991 VA 9 form filed by the appellant was an informal claim pursuant to 38 U.

The Board found that the appellant presented no legal basis to "negate and ignore the March 1990 final Board decision" and move the effective date back to the date of his original (December 1984) claim or the date of his November 1983 injury.

CUE in the 1990 Board Decision The appellant asserts CUE in the March 1990 Board decision on the basis that VA in 1990 failed in its duty to assist him by obtaining a certified copy of his Social Security file, including all medical reports therein.

See discussion of duty to assist, infra, at Part E.

First, a failure of the duty to assist cannot be the basis for a CUE claim.

Authorities Cited

Ashley v. DerwinskiBaker v. WestBaldwin v. WestBest v. BrownBuckley v. WestCaffrey v. BrownCaluza v. BrownCarpenter v. GoberCay v. BrownDonovan v. WestEddy v. BrownEpps v. GoberFugo v. BrownGilbert v. DerwinskiGonzalez v. WestGrantham v. BrownHanson v. BrownHauck v. BrownHayes v. BrownHayre v. WestIn Barrera v. GoberKuo v. DerwinskiLedford v. WestMarlow v. WestMasors v. DerwinskiMayer v. BrownMurincsak v. DerwinskiMurphy v. DerwinskiPhillips v. BrownPrenzler v. Derwinski

Regulations Cited (38 CFR / 38 USC)

38 CFR 20.1100 (1999)38 CFR 20.140038 CFR 3.151 (b) (1999)38 CFR 3.151(a) (1999)38 CFR 3.151(b) (1999)38 CFR 3.201(a)38 CFR 3.400 (1999)38 CFR 3.400(b)(1)(ii)38 CFR 3.400(r) (1996)38 USC 150138 USC 1521(a)38 USC 3006 (1988)38 USC 3007(a) (1988)38 USC 5105(b)38 USC 510638 USC 5107(a)38 USC 5107(b)38 USC 510838 USC 510938 USC 5110(a)

Denial Type

Not New Material|Duty To Assist|Cue

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