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 :)

[Pete53]

Use the BVA winners to quote the CFR;s and precedent, It works

[sixthscents]

Sure exclusion of evidence is a CUE. Aain a "procedural" error. But this has nothing to do with any doubt or judgement right?

So once the CUE is awarded they will have to reweigh the issue with the new evidence include. If they decide against you then you can still appeal this new decison, just like it was a new claim... instead of an old one that was reopened. Further if your appeal wins the effective date of claim goes back to the original date of the first claim that led to the CUE. Understand?

So yes if they left out evidence which could effect the outcome of the decision then thats a procedural error and clearly a CUE. Yes they will have to reweigh, and if they determine against, its just like it was the first denial, so I'd file a NOD and appeal with more evidence etc... you know the deal. You can bump it to BVA etc. Also, the VA might attempt to say that the excluded evidence would have made not difference in the decision, if the do that then they can try to deny the CUE... I'd kick that to the BVA on appeal if they did. However we still are not arguing the claim or compensation, just if there was a CUE and should the claim be reopened and rexamined... I would ask BVA to examine the issue if they decide in favor of the CUE, that way you'd save the time in having the whole issue being remanded back down, etc.

Edited November 10, 2009 by sixthscents

[mrsvet28]

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.

Broncovet,

I'm not very upset, I just always am waiting for something to be screwed up again, or missing and try to stay one step ahead of them, because this whole process makes yo u bitter and suspicious when it goes on and on over the sameol' crap and you submit and resubmit and fax and mail --and I do believe it is at the end/with confirmed stressors-3 postive IMO-a solid cp diagnosis finally- with no loopholes in it-they were cued by my first POA on "duty to assist "in 5 issues-it took 7 yrs to verify stressors or even recognize them-his first diagnosis was in 70 when they called it "anxiety" and gave him librium-

if you knew the whole claim u would know why I feel this way-and of course with it all ending I'll probably burst into tears-but day by day Mrvet gets older and sicker-and this will all be for naught to not have him by my side to burst into tears with, the lawyers have it now and they feel very positive....