BVA Case 97-1971: Ptsd

On May 29, 2001, the Federal Circuit reaffirmed that a breach of the duty to assist cannot amount to CUE and concluded that the appellant's contention that the RO's failure to adjudicate a claim of TDIU in its January 1984 decision did not amount to CUE.

The appellant argues that a remand is required for the Board to "fully and sympathetically develop [his] claim to its optimum before deciding it on the merits," that is, to apply the standard announced in Hodge v.

In Hayre, this Court found that it did not have jurisdiction to determine whether the Secretary had breached his duty to assist the veteran in a 1972 claim that had become final and was the subject of a CUE motion in 1995.

359 (1995) (dismissing appeal of a BVA decision finding no new and material evidence to reopen and noting the pendency of the original claim where RO's original denial had not become final) and Rivers v.

In his initial allegation of CUE made to the RO in 1995, the appellant alleged that the RO's January 1984 decision was the product of CUE because the RO had failed to consider whether he was entitled to TDIU, a claim he alleged was reasonably raised by the evidence at the time.

The Board found that although the RO "did not specifically refer to the provisions of 38 C.

] § 7261, Congress has created a unique statutory criteria [sic] for determining whether a Board's decision is 'clearly erroneous.

(4) in the case of a finding of material fact adverse to the claimant made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside or reverse such finding if the finding is clearly erroneous.