I thought 38 CFR 4.7 was the "preponderance" rule. If not, do you know what is?
"4.7 Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."
"provisions of 38 C.F.R. § 4.7 regarding the higher of two evaluations are not for consideration in CUE claims. "
I knew that "benefit of the doubt" (4.3) wasn't applicable in CUE cases, but this is new to me. Can you explain how this rule is reconciled with ...
Gilbert v. Derwinski 1998 No. 89-53 which states
“In a 1924 opinion, the Veterans Bureau General Counsel " outlined the 'benefit of the doubt' policy and explained it was not to be applied if the truth could be established by a preponderance of the evidence; on the other hand, proof 'beyond a reasonable doubt' was never required." This decision also states that the benefit of the doubt does not shift to the government in a CUE claim.
I feel like a complete idiot here, but I just don't get it. HELP!
Question
Angela
Berta, (or anyone)
I thought 38 CFR 4.7 was the "preponderance" rule. If not, do you know what is?
"4.7 Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."
The reason I ask..........
http://www.va.gov/vetapp03/files/0331675.txt states that
"provisions of 38 C.F.R. § 4.7 regarding the higher of two evaluations are not for consideration in CUE claims. "
I knew that "benefit of the doubt" (4.3) wasn't applicable in CUE cases, but this is new to me. Can you explain how this rule is reconciled with ...
Gilbert v. Derwinski 1998 No. 89-53 which states
“In a 1924 opinion, the Veterans Bureau General Counsel " outlined the 'benefit of the doubt' policy and explained it was not to be applied if the truth could be established by a preponderance of the evidence; on the other hand, proof 'beyond a reasonable doubt' was never required." This decision also states that the benefit of the doubt does not shift to the government in a CUE claim.
I feel like a complete idiot here, but I just don't get it. HELP!
Angela
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