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Rebut "presumption Of Regularity" Impossible?


Quint7
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Before my claim for an EED goes before the BVA my rep requested a supplemental statement of the case. It arrived yesterday and while it incorporated the reasons listed in my denial, it also said the main basis for denial is (get ready) even though there is no proof that I was EVER notified of the result of my original claims in 1994 as there is no letter in my cfile OR no returned letter containing notification, the "presumption of regularity" allows VA TO ASSUME THAT THERE HAD BEEN A LETTER AND THAT IT WAS SENT.

What? I could see the whole mail delivery thing...... but to assume under the same idea that a letter WAS EVEN TYPED UP sounds like bs to me. How is this not a violation of due process? I have read about denials due to exams being missed and VA using that claim to rebut the "I never got a notice" , but for an initial decision? Immediately after my enlistment ended? I posted in the thread aboutbenefit of the doubt but how could anything trump something like this? To assume a document was generated (back in 1994-5, pre automated leters I assume) and sent with 0 proof seems like a bit of a stretch.

Any opinions?

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My opinion is that it wont make a lot of difference to your case whether or not you received the decision. Reason:

EED's are usually reviewed under the "CUE" standard of review anyway, which requires you to prove your case "undebatebly".

Since you did not recieve the decision, and the one year appeal period expired, you have to appeal using the CUE standard.

So, it wont really matter which part of your claim requires the "CUE" standard...you are likely going to have to prove your case "undebatebly".

Now, for the good news. According to the Chief Justice of the Supreme Court, Roberts, the VA takes a position against the Veteran that is "substantially unjustified" about 70% of the time. (I have supplied the link where he made that quote in the past and wont do it again here) This basically means the VA knows their case against you is bogus, and, about 2/3 of the time Veterans cases are awarded or remanded.

I recommend you do try to rebut the presumption of regularity using the VA's own documents. For example, is their ANY reference to this mysteriously disappearing decision in any of their other decisions? Did they supply you a copy of it? If not, why not? What were the reasons and bases for denial in the mystery decision? It amounts to a "deemed denial", and, yes, you can challenge "deemed denials" on the basis that that you need to be reasonbly able to conclude your claim has been denied. Sometimes the VA "throws you a curve ball" like this trying to get you to not think of the real reasons you should win your claim. Remember, the hundreds of lawyers working for the VA have to have something to do, even if its wrong.

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Is the actual 1994 claim still in the C file????

How much time lapsed when you filed the 1994 claim and realized you had heard nothing from the VA?

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EED's are usually reviewed under the "CUE" standard of review anyway, which requires you to prove your case "undebatebly".

The above is not true.

Effective dates go strictly by 38 CFR 3.400 - General.

http://edocket.access.gpo.gov/cfr_2009/julqtr/38cfr3.400.htm

A claim for CUE that is granted can certainly provide an earlier effective date

but this does not at all mean that if you file a NOD on an effective date, that the

decision maker,DRO or BVA, has to review it under the same standards as a CUE.

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All of the original paperwork from the claim is in there as it was filed as part of my end of enlistment process. I filed it, never heard anything back and honestly forgot about it. When I filed in 2006 they said "you have been rated at 0% since discharge, this is now a request for increase". I asked repeatedly when was I told I was 0% and was told Jan 1995 and that the 0% was strictly due to failure to appear for an exam (another issue about the exam notice being returned for some reason). I have repeatedly said that my condition, now 20%, is the exact same as in 1994 so I should have that as my effective date as VA made absolutely no attempt to contact me other than the returned exam notice.

I looked at CUE, the DRo who is a lawyer said it didn't meet CUE so I dropped it. He then said that so long as the decision wasn't in my file it was an open claim and could be decided retroactively. He then wrote a decision stating that but claimed that unfortunately the claim had been closed in 2006 when I failed to appear for an exam (VA called a 15 year old phone # and never mailed a notice. Guy in California told em to F off so they assumed that was me (in NY) and closed the claim. That he said, even if it was a screwup by VA, closed the claim as far as the openendedness from 1994.

Yesterday the SSOC said all of that but then tossed in the stuff about Presumption of Regularity being a reason to "assume" that the decision letter had been generated and mailed even though there was 0 proof of it.

My Cfile has all kinds of proof that I could and did receive mail during all of this time in 1994 from other divisions of VA and that it is my fault for not keeping them informed of my address (who knew in 1994 they were all seperate? I collected GI Bill for 5 years!).

I read a Dec 2010 decision about this that said P.O.R. can be used to deny when it is claimed that an exam notice never arrived, but again, how could this apply to an initial decision? There is paperwork from my initial decision in the Cfile, but no cover letter, just pages 2 and on.

I just don't see how it is possible to rebut a hypothetical.

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In 1973 I got a decision from the VA. I never got appeal rights. That is not a CUE according to the rules since it fall under "duty to assist" so says the BVA. I guess that not sending you a decision also falls under "duty to assist" since you can't appeal what you never got. It seems an incredible lack of due process. They don't say that CUE's are rare for no reason. The VA makes them rare.

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So does anyone have any idea what could possibly be presented that would provide "clear evidence to the contrary" to rebut the 'presumption of regularity"?

In the reasons and bases they site "YT v Brown, 9 Vet App 195, 199 (1996)", "Mindenhall v Brown 7 Vet App 271" and my old favorite, "Hyson v Brown 5 Vet App 262, 264-65 1993".

I have read Hyson many times and I cited it to THEM in that there was absolutely no attempt made to track me down in 1994 even though I know I read some friggin where that if it is an original claim immediately post discharge the VA is expected to do more diligence in finding out why you are a no show for an exam.

I just don't get how "Due Process" can be trumped by "presuming" a document that they or I can't prove existed ever was made and mailed out.

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