Violet Cox Case

[deltaj]

I haven't been able to find the actual case, but have found a reference to the case in DAV's March April 2008 magazine. Simply do a search online under Violet Cox AND decision. What I found most interesting about the article is that it appears that in the Violet Cox case a court disagreed with V.A.'s presumption of regularity, V.A.'s practice of presuming that a notification letter was sent to a veteran even though no of a notification letter was found in a veteran's file. Essentially Violet Cox got DIC because her husband wasn't notified of the reduction of his 100% rating to 70% based on one V.A. examination.

[akwidow]

bump

[pacmanx1]

Can't find the court case but here is the DAV article.

http://magazine.dav.org/library/article/2008_01_03.pdf

[Wings]

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Search BVA and COAVC for "presumption of regularity" and/or "rebut the presumption of regularity". I'll give it a go ... ~Wings

USCAVC http://search.uscourts.cavc.gov/search/ Your search for ""rebut the presumption of regularity"" found 822 hits in 137 documents. (0.10 seconds)

EXAMPLE #1

Therefore, on consideration of the foregoing, the Court finds that

the evidence herein is sufficient to rebut the presumption of regularity,

and holds that the Secretary failed to comply with the provisions of

38 U.S.C. 4004(e) which requires the Board to "promptly mail a copy of its

written decision to the claimant and the claimant's authorized

representative (if any) at the last known address of the claimant and at

the last known address of such representative (if any)."

Because the Secretary has failed to comply with the provisions of 38

U.S.C. 4004(e), the veteran's 120 day filing period has not yet begun

to run. See 38 U.S.C. 4066(a) (1988) (notice of appeal must be filed

within 120 days after the date on which notice of the decision is mailed

pursuant to section 4004(e)). Even though the NOA filed by appellant

might be considered a premature NOA, this Court concludes, on the

particular facts here, that appellant's appeal was timely filed. It is,

therefore,

ORDERED that appellant's motion for review is granted and the Court's

order of February 26, 1991, is vacated.

UNITED STATES COURT OF VETERANS APPEALS, No. 90-1468

MELVIN D. CHUTE, Appellant, v. EDWARD J. DERWINSKI, Secretary Of Veterans Affairs, Appellee.

Edited May 10, 2010 by Wings