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

[mrsfootball]

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

[Berta]

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.

[mrsfootball]

berta the two letters are imo,s I will try to scan the letter i am sc for frostbite hands-feet and raynauds but not cts

[Berta]

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?

[mrsfootball]

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.

[mrsfootball]

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.