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Reopen/reconsideration/ Va 6/14/05?
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Guest VetWife Advocate
Found this on another Vetsite.....
Thought it might be again helpful here as well. I have a question about the latest June l4/05?
Added these legal facts to my Reconsideration!
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(Rating Clarification) The presumption of service-connected under 38 C.F.R. § 105(a) requires a disease, injury, or disability to be only “noted” during service.
(Rating Clarification) A disability is determined to be service-connected due to service or aggravation by service if it is either shown in the SMR records, or on discharge exam (Development Guide for Compensation & Pension Benefits, March 1995, Dept. of VA, Washington DC).
(Rating Clarification) The fact that a veteran’s service record documents that a disease or injury was incurred during service, requires the VA, through the application of statutory presumption, to establish service-connection. See C.F.R. § 3.303(a).
(Rating Clarification) When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. (Authority: 38 U.S.C. 501). [50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]
(Rating Clarification) 38 C.F.R. § 105(a). Creates a presumption of service-connection for injuries or diseases that occur during active duty unless evidence establishes that the injury or disease was the result of persons own willful misconduct. Shedden v. Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 2004); Forshey v. Principi, 284 F.3d 1335, 1352 (Fed. Cir. 2002) (en banc).
CC33CC]VA failed to provide 38 U.S.C. § 5103(a) notices (notification requirements) prior to the VA decision dated 14 June 2005. Veteran was never informed of the exact evidence needed to substantiate the claims prior to the rating decision (Pelegrini v. Principi, 18 Vet. Appt. 112 (2004). The reply by the VA before the decision does not meet the Federal law requirement above38 C.F.R. § 4.7 Higher of two evaluations
*****************************************************************************IS THIS WHY ALL OF THOSE VCCC LTRS ARE GOING OUT. EXACTLY HOW IS THIS DIFFENT FROM WHAT THEY HAD BEEN DOING?
Jim? said...if evidence in file...ignored...then still "open"???? Sorry for the confusion, but I still am way behind the learning curve; but I propably could go one and one with even National SO's!! And that is a SHAME!!!
Brenda
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Where question as to which of two evaluations shall be applied
The higher evaluation will be assigned
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