Veterans for Common Sense et al v. Nicholson et al

Filing 219

Attachment 3
Brief re 218 Amicus Curiae Appearance Joint Amicus Brief filed bySwords to Plowshares, Vietnam Veterans of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Related document(s) 218 ) (Gold, Judith) (Filed on 5/1/2008)

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APPENDIX EXHIBIT C Joint Amicus Brief Of Swords To Plowshares And Vietnam Veterans Of America Dockets.Justia.com VBA M21-1MR (U.S. Department of Veterans Affairs) Page 1 of 18 WEB AUTOMATED REFERENCE MATERIALS SYSTEM (WARMS) M21-1MR Part 1 Part 3 - - Duty to Assist General Claims Process Subparti Claims Processing Improvement Model Subpartii Initial Screening and Determining Veterans Status Subpartiii General Development and Dependency Issues Subpartiv General Rating Process bprtv General Authorization Issues and Claimant Notifications Su.bpartvi Special Authorization Issues - - - - Part 4 - Compensation, DIC, and Death Compensation Benefits - Subparti Claims Processing Improvement Model Subpartil Compensation Subpartih Dependency and Indemnity Compensation (DIC) and Death Compensation - Part 5 - Pension and Parents' Dependency and Indemnity Compensation (DIC) - Subp.arti Eligibility and Development Subpartii Rating SjtbpLtiii Authorization Issues Sub.partiv Pension Maintenance Centers - Part Part Part Part 6 7 8 9 - - - - Chapter 18 Benefits Burial Benefits Accrued Benefits Ancillary and Special Benefits - Subparti Subpartij Part 10 Part 11 - - Ancillary Benefits Special Benefits - Matching Programs Fiduciary Program Part 1. buty to Assist Back to Top Table of Contents - Table of Contents, Last Updated 8/1/02 http://www.warms.vba,va,gov/M2 1 1MR.html 4/30/2008 M21-1MR, Pan IV, Subpart ii, Chapter 1, Section D 13. General Information on Developing Claims for Service Connection for PTSD Introduction This topic contains general information on developing claims for service connection for posttraumatic stress disorder (PTSD). It includes information on · · · · · · · · · · the requirements for establishing service connection for PTSD the significance of prisoner-of-war (POW) and combat service the definition of engaging in combat individual decorations as evidence of participation in combat action to take if a veteran received a combat decoration but does not expressly state the nature of the stressor what constitutes credible supporting evidence the degree of stressor corroboration required considering non-combat-related stressors using primary evidence to corroborate a claimed in-service stressor, and secondary sources of evidence that may corroborate a claimed in-service stressor. Change Date September 29, 2006 a. Requirements for Establishing Service Connection for PTSD Service connection for posttraumatic stress disorder (PTSD) requires credible evidence that the claimed in-service stressor occurred · medical evidence diagnosing the condition in accordance with 38 CFR 4.l2', and · a link, established by medical evidence, between current symptoms and an in-service stressor. · Important: The lay testimony of a combat veteran alone may establish an inservice stressor for the purposes of establishing service connection for PTSD. Refrreiice: For more information on establishing service connection for PTSD, see · M21-1MR, Part III, Subpart iv, 4.H · 38 CFR 3.304(f), and S.C.1l54b. Continued on next page 1-D-2 M21-1MR, Part IV, Subpart ii, Chapter 1, Section D 13. General Information on Developing Claims for Service Connection for PTSD, Continued d. Individual Decorations as Evidence of Engagement in Combat Consider the receipt of any of the following individual decorations as evidence of exposure to combat-related stressors: Air Force Cross · Air Medal with V Device · Army Commendation Medal with "V" Device · Bronze Star Medal with "V" Device · Combat Action Badge · Combat Action Ribbon (Note: Prior to February 1969, the Navy Achievement Medal with "V" Device was awarded.) · Combat Aircrew Insignia · Combat Infantry/Infantryman Badge · Combat Medical Badge · Distinguished Flying Cross · Distinguished Service Cross · Joint Service Commendation Medal with "V" Device · Medal of Honor · Navy Commendation Medal with "V" Device · Navy Cross · Purple Heart, and/or · Silver Star. · . . Important: Receipt of one of the decorations cited above is not the only acceptable evidence of engagement in combat. Note: Because the medals listed below may be awarded for either combat or non-combat service, their receipt does not confirm a veteran's participation in combat. Request documentation (using Personnel Information Exchange System (PIES) request code 019) showing justification for awarding the medal. · Global War on Terrorism Expeditionary Medal · Global War on Terrorism Service Medal · Afghanistan Campaign Medal, and · Iraq Campaign Medal. Continued on next page 1-D-4 M21-1MR, Part IV, Subpart ii, Chapter 1, Section D 13. General Information on Developing Claims for Service Connection for PTSD, Continued b. Significance of POW and Combat Service The veteran's testimony alone establishes the occurrence of the claimed inservice stressor if · the evidence of record confirms the veteran engaged in combat, or was a prisoner-of-war (POW) as defined by ffR3.iv · the claimed stressor is related to that episode of combat or POW experience, · there is no clear and convincing evidence to the contrary, and · the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. -- -- Note: There are no limitations as to the type of evidence that may be accepted to confirm engagement in combat. Any evidence that is probative of (serves to establish the fact at issue) combat participation may be used to support a determination that a veteran engaged in combat. References: For more information on · claims for service connection for PTSD, see 1R3.3Q4L, and 38LJ.S.C. 1154(b), and · evidence that may be used to support a determination that a veteran engaged in combat with the enemy, see VAOPGCPREC Opinion 12-99. -- -- c. Definition: Engaging in Combat Engaging in combat with the enemy means personal participation in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. It includes presence during such events either as a · combatant, or · service member performing duty in support of combatants, such as providing medical care to the wounded. Continued on next page 1-D-3 M21-1MR, Part IV, Subpart ii, Chapter 1, Section D 13. General Information on Developing Claims for Service Connection for PTSD, Continued e. Action to Take if Veteran If a veteran received one of the combat decorations cited in M2 1-1 MR, Part IV, Subpart ii, 1 .D. 13 .d but does not expressly state the nature of the stressor assume the stressor is combat-related order an examination, if necessary to decide the claim, and · in the examination request state that VA has verified the veteran's combat service, and specify any details regarding the combat stressor contained in the record. · · -- -- Received Combat Decoration but Does Not State Nature of Stressor f. What Constitutes Credible Supporting Evidence Credible supporting evidence that an in-service stressor actually occurred includes not only evidence that specifically documents the veteran's personal participation in the event, but evidence that · indicates the veteran served in the immediate area and at the particular time in which the stressful event is alleged to have occurred, and · supports the description of the event. . . . . Notes: · Evaluate the evidence as a whole to determine whether a stressor is sufficiently corroborated. (See Moraii v. Frincipi, 17 Vet.App. 149 (2003).) · Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources. (See Doran v. Bru 6 Vet.App. 283 (1994).) · The credible supporting evidence requirement does not necessarily demand the submission of official documentary evidence. g. The Degree of Stressor Corroboration Required Corroboration of every detail, including the claimant's personal participation in the claimed stressful event, is not required. The evidence may be sufficient if it implies a veteran's personal exposure to the event. Examples: · When considered as a whole, evidence consisting of a morning report, radio log, and nomination for a Bronze Star may be sufficient to corroborate a veteran's account of an event, even if it does not specifically include mention of the veteran's name. (See Stiozzi v. Brown, 10 Vet.App. 307 (1997).) · Unit records documenting the veteran's presence with a specific unit at the time mortar attacks occurred may be sufficient to corroborate a veteran's statement that she/he experienced such attacks personally. (See Pentecost v. Principi, 16 Vet.App. 124 (2002).) Continued on next page 1-D-5 M21-1MR, Part IV, Subpart ii, Chapter 1, Section D 13. General Information on Developing Claims for Service Connection for PTSD, Continued h. Considering Non-Combat- PTSD may result from a non-combat stressor, such as a plane crash a ship sinking an explosion a rape or assault duty in a burn ward or graves registration unit witnessing the death, injury, or threat to the physical being of another person not caused by the enemy, and · actual or threatened death or serious injury, or other threat to one's own physical being not caused by the enemy. · · · · · · Related Stressors Primary evidence is generally considered the most reliable source for verifying in-service stressors It is typically obtained from the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly the U.S. Armed Services Center for Unit Records Research (CURR)), the National Archives Claimed Inand Records Administration (NARA), or the Marine Corps Archives and Service Stressor Special Collections (MCASC) and should be carefully reviewed for information corroborating participation in combat or to otherwise corroborate a claimed in-service stressor. Primary evidence may include · unit and organizational histories · daily staffjournals · operational reports-lessons learned · after action reports · radio logs, deck logs, and ship histories · muster rolls · command chronology and war diaries · monthly summary, and · monthly reports. Note: Generally, documents written or recorded by the lowest possible unit in the chain of the command are the most probative source of information to verify a claimed stressor, because, by nature, they tend to include details of events with greater precision. Examples: · A company commander's narrative is likely of greater relevance and specificity than a battalion commander's. · A Navy ship's deck log would likely yield more probative information than a fleet log. Continued on next page i. Using Primary Evidence to Corroborate a 1-D-6 M21-1MR, Part IV, Subpart ii, Chapter 1, Section D 13. General Information on Developing Claims for Service Connection for PTSD, Continued j. Secondary Alternative sources of evidence must be critically and carefully reviewed for Sources of information confirming participation in combat or to otherwise corroborate a Evidence claimed in-service stressor. Which May Corroborate a Alternative sources of evidence may include Claimed InService Stressor · military occupational specialty (MOS) evidence (Note: A veteran's MOS may be specified on his/her DD Form 214, CertfIcate of Release or Discharge from Active Duty, or in the personnel folder.) · hazard pay records, which may be obtained from the Department of Defense Finance and Accounting Service (DFAS). · personnel folder, which may be requested via PIES. · service medical records · performance reports, which may be requested via PIES · verification that the veteran received Combat/Imminent Danger/Hostile Fire Pay (Note: This information may be requested through the Veterans Information Solution (VIS).) · buddy statements · contemporaneous letters and diaries · newspaper archives, and · information from Veterans Benefits Administration (VBA)-sanctioned websites, which may be accessed through the PTSD Rating Job Aid website. Important: · All sources of evidence obtained for purposes of stressor corroboration must be fully documented in the file. Example: Print and file pages from a sanctioned website used in the determination of combat participation. · While confirmation of receipt of Combat/Imminent Danger/Hostile Fire Pay through the VIS alone does not constitute verification of a combat-related stressor, it may, in combination with other evidence, "tip the scales" in favor of the veteran's assertion of his/her involvement in combat. 1-D-7

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