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Barrett- Tolling On The 120 Day Cavc Limit




"4. Barrett v. Principi, 363 F.3d 1316 (Fed.Cir. 2004) (The Federal Circuit held that mental incapacity could be a basis to toll the 120-day time period for filing a Notice of Appeal at the CAVC following an adverse BVA decision. The Court stated that the veteran must establish that his psychological disability made him incapable of rational thought or deliberate decision making, or rendered him unable to function in society.).

Practice Note: Barrett is a very important case. Barrett stands for the broad proposition that any time period for filing a written submission (e.g. one-year period for filing a Notice of Disagreement) can be tolled or extended based upon a sufficient showing of the veteran’s psychological disability. "

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Thanks for posting this link, I especially like this part:

VAOPCGPREC 3-2003 (This opinion discusses whether a claimant is required to show that the disease or injury increased in severity during service before the presumption of aggravation applies. 38 U.S.C. § 1111 provides that a veteran will be presumed in sound condition if his entrance examination does not note any relevant defects, diseases or conditions. The statute further provides that this presumption may be rebutted by clear and unmistakable evidence of both 1) that the condition existed prior to service, and 2) that it was not aggravated by service. However, 38 C.F.R. § 3.306(:rolleyes: imposes an additional requirement on the claimant in order to receive the presumption in cases of aggravation. § 3.306(:unsure: requires the claimant to show that the pre-existing condition increased in severity during service. The General Counsel opinion determines that this part of the regulation is invalid, as it is inconsistent with 38 U.S.C. § 1111.)

Practice Note: VAOPCGPREC 3-2003 is a new General Counsel opinion, of which many of the regional offices may not be aware. Therefore, be on the look out for claims which have been denied on the basis that there was no evidence of increased disability during service. This showing is no longer required to obtain the favorable presumption.

For my 3 prior existing conditions, that I filed for and was turned down, it might just help me, on the next appeal, especially when 2 go back to 1971.

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Frosty -I use OG Pres ops to support claims when possible-

it sure pays to check them though-

Last week I gave a link on a BVA decision by Don corrected me that the regs had been overturned- nicotine addiction service connected -

However I am sure this opinion from 2003 still stands-

ALL- please correct me immediately like Don did-if I state a reg or something that has changed-

In my recent denial for a CUE on SMC

(Odd because my vet rep noticed the lack of SMC in 1998 but never advised me to pursue it-

only by being at hadit did I begin to understand they have committed a CUE in 1997)

they referred to a Gen COunsel Pres Op as an "internet print out" and ignored it-

It fully suppported that Sec 1151 vets can get SMC.

The decision was so deficient as to VA facts and case law I asked for a Reconsideration-

I griped about it in social-

My point-

when VA states it, and they document it, or publish it as reg or Pres op or if it is in M21-1 etc-

hold them to it-

And since they dont have the time to really work claims well- your point is valid- they probably dont have time to keep up with recent CAVC or OGC precedential decisions.

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