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Cue And Benefit Of Doubt Regs


Berta

Question

We all know that CUEs cannot be filed against denials that do not extend the provisions of BOD (Relative Equipoise ) because they almost always involve argument over medical opinions. The decision will say why they didnt apply BOD.:

"4.3 Resolution of reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See § 3.102 of this chapter.
[40 FR 42535, Sept. 15, 1975]" 38 CFR 4.3

However a violation of the above regulation can be filed as CUE this way.....


If the VA defies the proper application of the above regulation, as cited in M21-1MR, that is a CUE:

"a. Notifying the Claimant That the Benefit-of-the-Doubt Rule Was Considered
Whenever a claim is awarded on the basis of the benefit-of-the-doubt rule, or is supported by significant favorable evidence but nevertheless denied, in the notification letter

·54 include a discussion of the benefit-of-the-doubt rule, and
·55 describe and weigh the positive and negative evidence.

Note: If the claim is denied, it is sufficient to include a statement similar to the following: “The benefit-of-the-doubt rule does not apply because the preponderance of evidence is unfavorable.”

Reference: For more information on applying the benefit-of-the-doubt rule, see
·56 M21-1MR, Part III, Subpart iv, 2.B.6.c, and
·57 M21-1MR, Part III, Subpart iv, 2.B.7.h.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCYQFjAB&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch02%2Fch02_seca.doc&ei=ahP8VKbLOpPIsQSdpIGoAg&usg=AFQjCNGV8G-GMQt-jG9b03N563I6912Lvg&bvm=bv.87611401,d.cWc"

In my Absurd 1151 denial post, the VA ,in the decision never made any statement whatsoever that complies with anything above in M21-1MR.

I had preponderance of evidence, from VACO Cardio doctor that was part of my FTCA settlement award.
It fully stated that the VA had caused my husband's HBP to contribute to his death , due to an inappropriate prescribed medication (sudafed) in addition to an inappropriate dose of lisinopril.

The VA could have easily awarded me the 1151 claim under BOD regs above.

I have nothing in the decision to indicate that any VA medical professional even prepared the opinion they referred to.

My point is that, if you have preponderant probative evidence or even equal evidence for your claims, and VA denies , they MUST make a statement as found within M21-1MR above.

This is one of 3 CUEs so far I am asking them to CUE themselves on.

They violated (a), 54,55,56, and 57 of the above M21-1MR citation.

I have never seen any decision like this before whereby the claimant's evidence is cited, and is highly probative, ( I won a FTCA settlement due in part to this VACO report, yet they did not even refer to and cite Benefit of Doubt.
and why they did not apply it in the denial I got Saturday.

I have found 3 CUEs so far in their decision.

They cited a medical opinion, but never said who did this opinion and what their qualifications were.

It isnt even written like hundreds of VA opinions I have read over the years and is not a post humous C & P exam ( I got many of them in the past) and the VA put the doctor's name in those C & P exams in the SOCs.

I will ask the director Monday when I attach my CUE Yourself VA claim in email to her, (and to Ms Hickey)that I need a copy of the opinion and the name and qualifications of whoever prepared it.

Because I am sure the General Counsel will want to know that Buffalo has a medical entity (?)who

attempted to overrule a VACO opinion, ordered by the GC lawyer I dealt with years ago,

with a ridiculous medical rationale.

Not one single sentence in it is correct, based on the established medical and legal record VA has.

I LOLLed at one statement.

They said the veteran only had a sudafed prescription filled once by VA ( VA filled it every month by mail, (as VACO and OGC knew) and had "pre existing HBP ".

The coroner was even aware of it.

Yeah it 'pre -existed 'his death by 6 years because the VA caused the HBP...... As my evidence from VACO revealed.

I hope no one here ever had a violation of the M21-1mr application of BOD regs as I did.

I have never seen any RO do that before, here or in any BVA decision., in over 20 years as a veteran's advocate.

And I have never seen any RO opinion outweigh a VACO opinion.in this manner.

They have to award me under Relative Equipoise (BOD)

Edited by Berta (see edit history)
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I like this post. I wish we could compile all these little gems lol.

The VA did not apply the proper burden in my case. I had two IMO's (anaise / bush), dbq, medical screening all done, 15 lay statements in direct support, my statement, 15 medical treatise supporting my position, my statements and the VA found more pursuasive their one (3) paragraph, no-patient contact - remote exam, more persuasive and to have a better medical rationale; the rationale said that because the illness was complained about in service, that the "reasonable medical conclusion is that it did not exist."


I'm slowly making my evernote notebook on this very useful.


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Fight back all of the above.

That is the only way I succeeded in my claims.

As I told the Undersecretary , I never received an initial valid decision from my RO in over 20 years.

The director of the Buffalo VA got the CUE I fiiled on their denial of my 1151 claim that I received on Saturday.

She verified that in email she sent me last night. I was asleep when it came in.

Her solution is in the Update Absurd etc I posted this AM.

She is sending both of my claims to VA Central Office.

That is a very unusual tactic for VA to use.

These claims were filed in Fall 2012 and were only read 2 weeks ago because I contacted the Under Secretary.

I only got one of the Denials Saturday , responded that they must CUE the denial and I gave legal evidence why, and already they want to send them to VA Central????

We can help more if we know what your claims were about.

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Fight back all of the above.

That is the only way I succeeded in my claims.

As I told the Undersecretary , I never received an initial valid decision from my RO in over 20 years.

The director of the Buffalo VA got the CUE I fiiled on their denial of my 1151 claim that I received on Saturday.

She verified that in email she sent me last night. I was asleep when it came in.

Her solution is in the Update Absurd etc I posted this AM.

She is sending both of my claims to VA Central Office.

That is a very unusual tactic for VA to use.

These claims were filed in Fall 2012 and were only read 2 weeks ago because I contacted the Under Secretary.

I only got one of the Denials Saturday , responded that they must CUE the denial and I gave legal evidence why, and already they want to send them to VA Central????

We can help more if we know what your claims were about.

Any chance that you are going to the townhall in Buffalo this month? (looking at your profile, assuming that you live in that area).

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Does it have anything to do with problems veterans are having with the Buffalo VARO?

I don't live near Buffalo.

.

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PS, I won those Claims in April but they still dont want to pay me what they owe me.....but they WILL

They reversed both denials as I found 4 CUES in each denial and I immediately raised Hell.

Bumping it up for someone here.

Edited by Berta (see edit history)
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berta I really look forward to reading your posts.i may have posted something like this about a denial of a claim based on"at the time of the injury a test for the depth of the cold injury was not taken".at the time of the injury the army doctor said I had two sprained ankles because they were purple.five days latter while on leave was admitted for frostbite.the ro used no evidence as evidence even though I had a nexus letter and now sent another nexus letter.do you think the ro will admit mistake or send it bva for another 2yr wait

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If you sent them evidence and have a proof of mailing it to them, and that evidence is probative and critical to your claim (which certainly seems to be the case here, and if they completely ignore that evidence they have committed a CUE due to their violation of 38 CFR 4.6.

I am not sure what you mean as a 'nexus letter'.

Do you have documented ratable frostbite residuals since the cold injury occurred?

Do you mean instead an IMO nexus letter?

I have learned that the VA will not admit to any mistakes they make on any decision unless we raise some legal hell with them (such as filing CUE under 38 CFR 4.6)

I filed a CUE under IRIS complaint in 2005 and got a fast double DRO review.

But it was the same DRO who did the other review and she still didnt know how to read. That is the DMII AO claim and that claim took 8 years.

I made sure I emailed Sec Bob and Ms. Hickey with the fact that ROs have caused the backlog by pulling this crap. We claimants have Not caused it. We have been victimized by the very system that is supposed to serve us.

Can you scan and attach here their last denial?

(Cover C file number, name, address prior to scanning it.)

They refused to read any of my IMOs for my 2003 claim but the BVA read them.




That regulation is basic VA 101.

My VARO acts like they never heard of it and every denial I ever got contained a violation of that regulation.

I gave House VAC testimony on how they refused to acknowledge 53 submissions of my evidence from 1995 up to ,at that point, whenever Shreddergate occurred.

Unfortunately I just kept sending it in and the BVA awarded my DMII AO claim in 2009 because they saw it all in my C file.

These days however, I am quick to use 38 CFR 4.6 against them and any other refgulation they broke (like in my SMC CUE award)

because it sure beats being on the appeals hamster wheel and makes them, at some point, learn to apply the regulations....if they in fact are capable of even reading them.

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Good.... IMOs....if they follow the IMO criteria here they should be fine.

"i am sc for frostbite hands-feet and raynauds but not cts"

so they did not service connect the CTS and that is what you want them to do?

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berta when my daughter gets hm I will scan and send it my argument is the va used the fact a cold injury test wasnt performed as evidence against my doctors evidence that its more likely than not the cold injury caused cts.i got a 2nd imo and he stated the same fact.

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berta I just typed the va opinion "we received an opinion from ne orthopedics stating that your physician felt your cold injury,which occurred in the military,was most likely the the cause of your cts." your va exam dated 3-22-2011,showed you had a diagnosis of bilateral cts.the examiner opined that it was less likely than not your cts was a result of your cold injurys.the rational that the examiner provided was although cts can be caused by cold injuries,it is generally proportional to the depth of the cold penetration and tissue damage at the time of the injury.he noted that your service treatment rec.did not contain evidence of any treatment for cold injury to your hands while in the military.as well the records do not show the evidence of the depth of you cold injury,or tissue damage.although the medical evidence shows that you have been diag. with bilateral cts and you provided a imo we found that the medical opinion we recived from the va medical center was more persuasive than your phy.opinion because it was based on your military rec.based on the toltality of the evidence,service conn.for bilateral cps secondary to residuals of frostbite of the hands is denied because we did not find that your ser-conn disability either caused or aggravated your additional disability.of bilateral cts.as well,your claim is denied on a direct basis as there is no evidence showing that your disability neither occurred in nor was caused by your military service. I also sent a 2nd imo to them.also I stated before at the time of the injury I was diag. with two sprained ankles. five days latter admitted to navel hospital in boston.

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Was the second IMO from a different doctor?

As I mentioned before they MUST make a BOD statement even if they deny a claim:

Note: If the claim is denied, it is sufficient to include a statement similar to the following: “The benefit-of-the-doubt rule does not apply because the preponderance of evidence is unfavorable.”

Reference: For more information on applying the benefit-of-the-doubt rule, see
·56 M21-1MR, Part III, Subpart iv, 2.B.6.c, and
·57 M21-1MR, Part III, Subpart iv, 2.B.7.h.

http://www.google.co...87611401,d.cWc"

In my Absurd 1151 denial post, the VA ,in the decision never made any statement whatsoever that complies with anything above in M21-1MR.

That denial actually contained 4 CUEs. They reversed and awarded but said due to the other 100% award under CUE they didnt owe me any money.

That would be correct, if they had done the first CUE claim correctly.

The director apologized for 2 of their CUEs and the lack of the BOD statement was one of her apologys.

Did the VA make a BOD statement at all in this decision?

I assume they had the records from Boston, because they did award for the frostbite residuals.

But did they have those records????

Did your IMO doctors provide any abstraccts or medical treatise that supported their opinions?

What type of medical person did the C & P and do the qualifications of your IMO doctors outweigh them?

The first time I ever read this regulation was circa early 1988.when I was on Vet Link.(modem to modem but the beginning of public veterans forums on line pre Internet..

I envisioned the statue of Blind Justice holding the two scales.

But by the end of 1988 I imagined the VA kicking her in the knee to make sure the scales weighed in their favor.

(Because on Christmas Eve 1988 my husband got a proposed reduction letter...which they reversed in about 8 months)

This is our Benefit of Doubt regulation:

"4.3 Resolution of reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See § 3.102 of this chapter.
[40 FR 42535, Sept. 15, 1975]" 38 CFR 4.3

One lousy C & P against and one strong IMO for equals Benefit of Doubt and an award.

This might have satisfied the BOD statement requirement...but I am not sure it does...

"we found that the medical opinion we recived from the va medical center was more persuasive than your phy.opinion because it was based on your military rec.based on the toltality of the evidence,service conn.for bilateral cps secondary to residuals of frostbite of the hands is denied because we did not find that your ser-conn disability either caused or...."

after reqarding this again they are saying the VA examiner had your SMRs and the IMO doctor apparently didnt.

As within the IMO criteria here at hadit, that is an important point, yet my IMO doctor didnt even need my husband's SMRs because his conditions were presumptive. ( for my AO DMII claim)

When there is the question of a secondary disability due to an already established SC, I dont think the VA should have used that as a reason to go against the claim...if your IMO doctor didnt not have the SMRs. and that is a BIG point you should make to them.

I sure hope the second IMO might turn the tide.

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berta no bod rule was applied they based there decision on the fact no test was done at the time of injury.i was admitted for 2nd degree or even 3rd degree frostbite.the 2nd doctor opinion-different doc-the combination of cold injury and raynauds most definatly caused the cts.the frostbite sc goes back to 1969

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  • HadIt.com Elder

Berta

If VA makes a decision and then sends the decision along with the appeal rights to the wrong address and you miss the one year time limit to file a NOD is that grounds for a CUE do you think? My lawyer has the evidence that VA did send my decision and appeal rights to the wrong address and never notified me of my decision or appeal rights. This is part of the CUE I filed 9 years ago. This aspect of the CUE was never raised in my lawyer's argument. He is raising it now, but it may be too late. This was my initial SC claim back in 1972. I lost my CUE on the fact all my positive evidence was not before the rater at federal court. You talk about a kangaroo court. Just because it is a federal court does not mean they are right or just. Before the Civil War the Chief Justice of the Supreme Court said that slaves and black people, in general, were just livestock and could never be considered citizens. Even the Supremes are wrong often as not.

John

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