Ask Your VA Claims Question | Current Forum Posts | Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users
- 0
The Power Of 38 Cfr 4.6
Rate this question
Ask Your VA Claims Question | Current Forum Posts | Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users
Rate this question
Question
Berta
I mention here ,from time to time, the power of 38 CFR 4.6. I am putting this in the main forum because I think VA makes more CUEs regarding this regulation, then we know.
One of the first things vet reps should look for in a denial, is whether the VCAA letter was correct
(if that letter is detrimental to the claimant, it will surely become a lengthy BVA case, remand due to VCAA violation, ,and, back to BVA scenario )
VCAA letters are different fopr survivors then for veterans...I made that point here in past posts.
and then whether the decision contains a CUE......do most vet reps really check those important points?
“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6
A violation of this regulation can be a basis , within or out of the apellate period., for a valid CUE claim. I claimed CUE immediately under this regulation regarding my initial AO IHD decision and that CUE was fixed right away. The decision however contained another CUE which I have claim pending on.
I was going over my pending CUE based on this regulation, (38 CFR 4.6 ) I almost forgot I had cited a BVA decision that ,because it is a legal decision and not medical, and explains what I mean.Also theBVA decision cited VA case law that I didnt have to reiterate.
In part:
"The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been
manifestly different. Grover, supra.
This error is significantly more than a disagreement as to
how the facts were weighed or evaluated. Crippen, supra.
Rather, it was a denial of the existence of facts of record.
Moreover, a persuasive reason has been given as to why the
error manifestly changed the outcome. This reason is that
had the error not been made, a compensable rating for
irritable bowel syndrome would have made effective the day
following separation from active military service, rather
than the day that a VA outpatient treatment report noted
irritable bowel syndrome. This review for CUE is based
solely on the evidence of record at the time of the February
2000 rating decision. Russell, supra.
In conclusion, the veteran has shown that error occurred
based on the record and the law that existed at the time the
decision was made. After considering the evidence of record
at the time of the June 1989 rating decision as well as the
veteran's later testimony concerning VA's failure to observe
that evidence, the Board finds that the veteran has
demonstrated CUE in the February 2000 RO decision. An
earlier effective date of October 29, 1989, for a 30 percent
rating for irritable bowel syndrome must be granted."
CONCLUSIONS OF LAW
1. The criteria for a 30 percent schedular rating for
irritable bowel syndrome with gastroesophageal reflux are
met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10,
4.114, Diagnostic Code 7319 (2008)."
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp08/Files5/0844495.txt
Evidence in the record at time of the alleged CUE decision,
violation of basic VA case law,regarding evidence, in place at time of the past decision
proof of a ratable condition at time of the alleged CUE decision,
and a proven manifested and altered outcome...meaning more retro is due the vet (in this case back to the day after his discharge.....1989.
I am glad I found that I had used this decision in my pending claim because maybe it will help others to understand how I have been successful with both types of CUE claims.
But besides using this decision,in my claim, my evidence is relevant and probative and fits into the entire gamit of CUE regs, as above.
It is evidence that was in VA's possession at time of alleged CUE decision, and ignored completely by the VA.
The manifested outcome, I stated to VA, is 100% P & T ,1151for 16 additional months, due the veteran, plus one spouse, one child.Plus SMC S for those 16 months.
This is also an example of why every surviving spouse should substitute themselves ASAP for any claims the veteran had pending at death.
And aggressively fight over any decisions that contain CUE to their detriment.
Link to comment
Share on other sites
Top Posters For This Question
7
2
2
1
Popular Days
Feb 25
4
Apr 28
4
Jan 25
3
Apr 22
2
Top Posters For This Question
Berta 7 posts
Vync 2 posts
Galen Rogers 2 posts
K9MAL 1 post
Popular Days
Feb 25 2022
4 posts
Apr 28 2018
4 posts
Jan 25 2015
3 posts
Apr 22 2018
2 posts
Popular Posts
Berta
I mention here ,from time to time, the power of 38 CFR 4.6. I am putting this in the main forum because I think VA makes more CUEs regarding this regulation, then we know. One of the first things ve
Berta
Vync, you are a true Warrior on this stuff! "The list of applicable laws and regulations included 4.6: " Because you filed a CUE on it! - otherwise maybe the HLR would not have even picked u
K9MAL
Good info Berta!
Posted Images
16 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now