Cue And Benefit Of Doubt Regs

[Berta]

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 March 8, 2015 by Berta

[Philip Rogers]

Good post, Berta!!!

pr

[CBaker84]

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.

[Berta]

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.

[CBaker84]

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).

[Berta]

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

I don't live near Buffalo.

.

[Berta]

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 May 15, 2015 by Berta