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Berta, 4.7 Not For Application In Cue?

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Angela

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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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Oops! I should have included another quote to make this question more clear.

"Similarly, if a fair preponderance of the evidence is against a veteran's claim, it will be denied and the "benefit of the doubt" rule has no application; if the veteran establishes a claim by a fair preponderance of the evidence, the claim will be granted and, again, the rule has no application; ."

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It can get very confusing----

http://www.va.gov/vetapp99/files4/9932113.txt this claim is a good example of how the VA determines Preponderance

This veteran has to prove she was a veteran! as well as had PTSD from service- and she did- with a preponderance of evidence.

Preponderance is a higher standard than benefit of doubt (Relative Equipoise)

If a veteran provides a Prepoderance of evidence they do not need the application of Benefit of Doubt.

http://www.hadit.com/content/uscavc8953gilbert.htm

Benefit of Doubt (Relative Equipoise) is when the VA feels the evidence is equally for and against the claim-

But- they own the scale-

I fell that a veteran has to get the scale as much in their favor as possible.

This is the M21-1 version of Reasonable Doubt- I have sent this reg with many claims for vets that I helped with so that VA is fully aware that the veteran expects proper application of it to their claim:

1.03 EVIDENCE IN BALANCE

a. The reasonable doubt rule is found at 38 CFR 3.102. Every person involved in the adjudication of compensation and pension claims must be thoroughly familiar with this regulation.

b. The benefit of the doubt belongs to the claimant. If there is a balance of evidence supporting and against a factual issue, VA must make a factual determination in favor of the claimant. In Gilbert v Derwinski, No 89-53, the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims (CAVC)) likened the reasonable doubt rule to a rule "deeply embedded in sand lot baseball folklore that the 'tie goes to the runner'.” If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and again, the rule has no application; if, however the play is close, then the runner is called safe by operation of the rule that 'the tie goes to the runner'.” After obtaining all relevant evidence, evaluate the evidence and determine if the evidence in favor of the position held by the claimant is of greater weight than the evidence to the contrary. If the evidence supports the position of the claimant, the claim is allowed. If the evidence does not support the claimant, the claim is disallowed. If the evidence is approximately balanced, resolve doubt in favor of the claimant.

Example: A veteran filed for compensation based upon injuries acquired as the result of an automobile accident while serving on active duty. The police report indicates that the veteran's vehicle failed to negotiate a curve and was speeding at the time of the accident. The report also states that the road surface was slippery as the result of rain earlier in the night, and that there were skid marks which indicate that the veteran attempted to stop the vehicle prior to the accident. The combined evidence that the accident was caused by hazardous road conditions in contrast to being caused by the veteran’s reckless driving is in approximate balance and, therefore, the injuries that resulted from the accident will be considered as having been incurred in the line of duty.

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Berta,

I found that info also. That's why the BVA's statement in http://www.va.gov/vetapp03/files/0331675.txt has me stumped.

The BVA said in this decision that "preponderance" is not enough,

at least that's how I read it.

Here's the quote from the BVA's decision...

""provisions of 38 C.F.R. § 4.7 regarding the higher of two evaluations are not for consideration in CUE claims. "

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