Do you have Non-Combat VA PTSD disability claim?
Ever try to convince the VA that your non-combat stressor event occurred?
It’s a lot harder for non-combat V eterans – if you didn’t serve in combat, the VA isn’t going to take your word for it: you have to prove to the VA that the stressor event occurred.
It’s really hard, isn’t it?
Today I want to going to talk about a new case out of the CAVC that requires the VA to go even FURTHER in its Duty to Assist the Veteran.
This isn’t legal advice – this video is an educational tool to help you better understand the law of VA PTSD disability compensation claims so you can do it yourself, or keep a better eye on the attorney or VSO handling your VA Claim or Appeal.
Veterans Must Prove Non-Combat Stressors in a VA PTSD Disability Claim.
As any of you who have tried to service connect a VA PTSD disability for a non-combat related event know, it is extremely difficult to corroborate that your stressor event occurred.
Maybe you witnessed a soldier cut in half when pinched between 2 tanks in a training drill.
Or saw your “battle buddy” plummet from the top of the rappel towers on an obstacle course, crushing his skull.
Or maybe you watched a little kid get rolled over by a tank on a training exercise in Korea.
These are non-combat events – real events that I have seen in real Veterans’ claims.
Under the current law of PTSD compensation claims, your word that something happened is not good enough for the VA to believe you.
Veterans with Non-combat stressor events have to corroborate the stressor event using “credible evidence”.
There are many ways to corroborate this event – from “buddy statements” to “newspaper articles” or medical treatment records, etc.
That’s not what this post is about.
This post is about the JSRRC – and what it does in a PTSD Compensation claim.
The JSRRC is the place that stores a TON of never before identified information about incidents occurring in the military.
JSRRC is the Joint Services Records Research Center Mission – that’s a real mouthful.
Basically, this is a DoD facility that does not store, but does have access to, information from tens of thousands of military units over several decades.
Problem is, you can’t get access to it. Only the VA Can.
This is what the JSRRC says:
“When the Regional Office determines information from military unit records is necessary to process a claim, the Regional Office will request this assistance from JSRRC.”
Think of the JSRRC as a secret book – only the JSRRC can look at it, only the JSRRC knows what is in it, and only the VA can ask the JSRRC to search the “secret book” for evidence that the event occurred.
The VA has long used this power as a way to deny Veterans claims for PTSD in non-combat scenario.
And they play the game the same way in almost every single case.
Here’s how the VA’s JSRRC PTSD Disability Stressor Game is Played.
It is played the same way in claim after claim after claim…..
* Veteran gives the details of an event that occurred outside of combat – a common scenario is witnessing a training death.
* The Veteran – due to the passage of time, the symptomatology of your VA PTSD disability, or basic human brainpower – forgets the precise date that the event occurred.
* The VA barks and hollers in it’s “Duty to Assist” letters that it needs the Veteran to define a 60 day window in which the event occurred, or they cannot ask the JSRRC to corroborate the stressor.
(Again, a made up excuse, as I’ll explain in a minute).
* When the Veteran can’t provide the exact 60-day window, the VA denies for failure to cooperate, or on the grounds it cannot fulfill the DTA without more information, or on the grounds that it cannot corroborate the alleged stressor event.
This is absurd, by the way – to require a Veteran to remember the specific date of an event or pinpoint a 60 day window when something happened.
The year before Obama was inaugurated into Presidency, I witnessed a drunk driver strike and kill the driver of a car stopped right in front of me. Every detail of the incident replays in my mind like a movie scene I cannot forgot. But you could offer me a million dollars to tell you what month it happened and all I can tell you (without doing a lot of digging) is that it was sometime in 2008. And the only reason I remember that is that I was interviewed by the Prosecuting Attorney prosecuting the drunk driver on the day of Obama’s inauguration.
That’s human memory folks – most of us don’t remember exact dates of even memorable incidents.
Guys….how many of our wives get on us for forgetting our anniversaries?
Gals – how many of you forget that you promised to let us watch college football all day every Saturday, without a honey-do list? See….forgot you promised that, didn’t you?
Back to our scenario – when the VA played its JSRRC 60-day window game with one Veteran, he had enough.
Veteran David Gagne had enough of the VA’s little JSRRC game, and appealed his PTSD Disability denial to the CAVC.
As a result, we have a new rule of law which says exactly what the VA has to do to fulfill the Duty to Assist.
Here’s how it played out.
The Veteran, while stationed in Thailand during the Vietnam War, was building a road between 2 bases.
One day, he watched a truck back into and kill an NCO on the site. The Veteran filed a claim for VA PTSD compensation years later, after he realized this incident was why he was having suicidal ideation and other symptoms of a PTSD disability.
The VA refused to ask JSRRC to verify the stressor, because the Veteran could not remember the 60-day window in which the event occurred.
Instead, the VA denied the claim for a failure to locate credible evidence of the stressor event.
The Veteran called “bullshit” – on appeal to the Court, he argued (through an outstanding advocate named Amy Odom at the NVLSP) that the VA’s Duty to Assist couldn’t be limited to 60 day windows.
The Veteran pointed out that the Duty to Assist is fulfilled only when future efforts to obtain records would be futile, or it is established to a reasonably degree of certainty that the records do not exist.
The VA, on the other hand, argued it was futile to ask the JSRRC to search through a years worth of records for a particular incident when the JSRRC and the VA had previously decided that it was easiest and most efficient for them to search in 60-day windows.
The VA’s attorneys – the Office of General Counsel – made the Veteran’s attorney brief the case, and go to oral arguments.
Only after oral arguments did the VA realize how bad its arguments were.
So, shortly after those arguments, the VA changed its position – expressly conceding that it failed to fulfill the Duty to Assist by not searching through the records as requested by the Veteran.
As an aside, the Veteran’s case was at the court for 20 months – since February 2014.
The OGC willingness to back down so easily and completely after making the Veteran fight for almost 2 years….AT THE COURT…. makes me wonder if this is just another example of the VA Office of General Counsel wasting everyone’s time with arguments it KNOWS it cannot win.
The Veteran’s Law Blog reported cases about this on the Veterans Law Blog before – including our assessment of how the VA’s Office of general Counsel is wasting MILLIONS of dollars each year on frivolous cases on appeal.
The Court ultimately made it clear that the VA’s Duty to Assist in asking the JSRRC for evidence corroborating a stressor was NOT limited to 60 day increments: the VA fulfilled its Duty to Assist in 2 scenarios:
Scenario 1: It is reasonably certain that the records sought do not exist
Scenario 2: Future efforts to find the records would be futile.
By the way – and this is VERY helpful in any Duty to Assist Argument – the court defined the word futile as “serving no useful purpose; completely ineffective”.
How to use this decision in your case:
1) Do you have a non-combat stressor event for your VA PTSD disability?
2) Send the VA a Sworn Declaration stating the Date ranges that you THINK it might have occurred.
Always go with a broader range than you think. If you think it happened in the Summer of 1968, broaden you statement ot the whole of 1968. If you’re pretty sure it happened in 1979, add a year to each side to be sure (1978-1980).
3) Add this statement to your declaration: “I cannot narrow the timeframe of his reported stressor to a 2 month period.”
4) Cite to the Gagne case, for the position that the VA only fulfills the Duty to Assist if it submits multiple JSRRC requests for each 60 day period in your search range.
Hope that helps folks – please click here and let me know if this is a useful tip for your VA PTSD Compensation claim or if it helps you get your PTSD Disability claims service connected.
And if you want to read the actual decision in the Gagne case, here’s a link: Gagne v. McDonald, 2015 U.S. App. Vet. Claims LEXIS 1404 (October 19, 2015)