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

[Berta]

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.

[mrsfootball]

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

[john999]

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