Whatever Happened To

[mrsvet28]

WAS JUST THINKING -HAVENT HEARD MUCH LATELY ABOUT BENEFIT OF THE DOUBT -SEEMS LIKE IT VANISHED-- DOES IT STILL STAND IN APPEALS PROCESS- HAVENT READ THEM LATELY :)

[sixthscents]

good point, or ignore them...

[broncovet]

Mrs Vet:

The "benefit of the doubt" lies in the eyes of the beholder, and it is the RO who decides, and it takes a lot of time, and is not always successful for the Veteran to be given "the benefit of the doubt" upon appeal.

Example: A "close call" is denied by the RO. The Veteran waits more than 12 months to appeal, then appeals. The appeal will almost automatically be denied, based upon an "untimely appeal", that is, a NOD filed by the Veteran MORE than 12 months after the RO decision. This "close call" will not meet the strict CUE standard, as differences in judgement calls are specifically excluded from the possibility of CUE. End result to the Veteran: The "benefit of the doubt" is ruled against the Veteran. This is not an isolated incident, and, the VA wants to shorten the appeal period to 6 months or less so that even less Veterans get the "benefit of the doubt", because that goes out the window if the Veteran can not/does not timely appeal. It would not matter even if the Veteran was in the hospital, was mentally ill, or even in a coma the entire 12 months..even for SC conditions..his appeal is automatically thrown out if it is past the one year period and the case was decided on a "judgement call". The Veteran then has to try to prove the difficult "grave procedural error" that is, CUE, in order to win his claim and there is NO benefit of the doubt, in fact, in this example, for the Veteran.

Mentally ill, PTSD, or even comatose Veterans, along with other Veterans, are required to appeal within the 12 month period to get the benefit of the doubt. Since many are unable or unwilling to do that, they are, in fact, denied "benefit of the doubt". The VA uses the Veterans own disabilities against him as a lever to deny his claim.

Edited November 8, 2009 by broncovet

[broncovet]

Mrs. Vet:

I would like to suggest you use EXTREME caution in citing BVA decisions in your appeal, if you do it yourself. Your arguement will be weak, because the VA has many, many lawyers on staff (fighting against the Veteran) who will likely argue that the BVA decision is "non precedential", and they would be right. You might as well be telling them that your Uncle Charlie, who does not read or write, thinks you should get your benefits.

I recommend you stick with Precedential CASES, that is, the Federal Circuit court, or even the supreme court. Cite CAVC case law only if you are sure it is precedential. BVA cases are almost never precedential.

[mrsvet28]

Mrs Vet:

The "benefit of the doubt" lies in the eyes of the beholder, and it is the RO who decides, and it takes a lot of time, and is not always successful for the Veteran to be given "the benefit of the doubt" upon appeal.

Example: A "close call" is denied by the RO. The Veteran waits more than 12 months to appeal, then appeals. The appeal will almost automatically be denied, based upon an "untimely appeal", that is, a NOD filed by the Veteran MORE than 12 months after the RO decision. This "close call" will not meet the strict CUE standard, as differences in judgement calls are specifically excluded from the possibility of CUE. End result to the Veteran: The "benefit of the doubt" is ruled against the Veteran. This is not an isolated incident, and, the VA wants to shorten the appeal period to 6 months or less so that even less Veterans get the "benefit of the doubt", because that goes out the window if the Veteran can not/does not timely appeal. It would not matter even if the Veteran was in the hospital, was mentally ill, or even in a coma the entire 12 months..even for SC conditions..his appeal is automatically thrown out if it is past the one year period and the case was decided on a "judgement call". The Veteran then has to try to prove the difficult "grave procedural error" that is, CUE, in order to win his claim and there is NO benefit of the doubt, in fact, in this example, for the Veteran.

Mentally ill, PTSD, or even comatose Veterans, along with other Veterans, are required to appeal within the 12 month period to get the benefit of the doubt. Since many are unable or unwilling to do that, they are, in fact, denied "benefit of the doubt". The VA uses the Veterans own disabilities against him as a lever to deny his claim.

So is it wise to prepare to appeal again while you are in remand?or do they just need to connect the dots? The situation here is all of our appeals were timely since 1998--4037 days and counting....since first NOD...I believe there is CUE all over this-but hired a llawyer over 2 years ago..he is my thirdPOA and I'm letting them get headaches now...Thanks for your reply

[Vync]

What about benefit of the doubt in this link?

[broncovet]

Mrs. Vet,

I do recommend you do something to ease your mind. If that something is preparing another appeal while you are in remand, and that makes you feel better and better prepared, far be it from me to tell you differently.

I doubt that you will be upset if you win..that you did all this work to appeal needlessly. However, if you loose, then you will have the appeal ready to go, except the parts that are specific to the newest decision.