List Of Evidence

[Jayg]

Ok, one more thing...

It has been suggested I check the "list of evidence." How do I do that? Do I request a copy from the VARO? Show up and ask to see it, make an appointment to see it???

Thanks

[jbasser]

No cue. This is not a final decision.

It would be risky to wait until it is final.

How evidence is weighed is also not a CUE.

Now if the evidence does exist and it is said there is none then a CUE may exist but it has to be spacific where reasonable minds would all reach the same conclusion.

Example. I had HTN in Service Medical Records 14 out of 17 readings were compensable. The RO said no treatment, complaints, or diagnosis of HTN.

Busted their backs on that one.

In certain scenarios it can be done.

J

[john999]

John and Bronco

Yes, the decision has to be final for the CUE and from what I understand that if evidence exists in the VA's possession and they don't consider it then it may be a CUE. The way I understand it that it is a CUE that they did not consider the evidence. If the CUE is called they have to reweigh the total of the evidence including the evidence they excluded. That is the basis of my CUE. You could still lose when they reweigh the evidence. I know I read a post here one time in which someone said their is a presumption that everything in the claim file has been read and considered even if not mentioned in the decision. I don't see how that can be true. This would give the VA the power to just exclude any evidence they don't like. They do it all the time, but it is not legal. The sticky CUE format is the only way to attack old final decisions. You know they will not make it easy because they don't want to reopen an ocean of old claims with tons of retro attatched.

[carlie]

I'm pressed for time right now.

If someone is able will you please locate Bell v Derwinski

and post it into this thread.

I feel it is applicable to questions in this thread.

Thanks to whomever has the time.

carlie

[Notorious Kelly]

"Under the constructive-notice rule of Bell v. Derwinski, 2 Vet. App. 611 (1992), may the failure of an agency of original jurisdiction (AOJ) to consider pertinent Department of Veterans Affairs (VA) medical records in existence at the time of its prior final decision constitute clear and unmistakable error, even though such evidence was not actually in the record before the AOJ?

a. With respect to final agency of original jurisdiction (AOJ) decisions rendered on or after July 21, 1992, an AOJ's failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error, if such failure affected the outcome of the claim."

(I googled & it pointed me back to Hadit ;) )

http://www.hadit.com/forums/index.php?showtopic=23658

[carlie]

Kelly,

Thanks.

carlie

[akwidow]

and what Kelly found and posted is exactly what just happened to me, among other things, in my denial.