Where to find this VA mandate

[jamescripps2]

I am sure that I have read this either in the 38 C.F.R or the 38 U.S.C.   A  mandate, that where there is an option, or choice, the VA is to choose the most favorable option in the best interest  of the veteran. Where can I find this mandate? I am looking in the C.F.R but I have not found it yet.

Thanks

[Buck52]

broncovet

Were all in this together and any information that may help out a veteran with his/her claim

is beneficial to us all, your information is Great too buddy.

Possibly in James cripps2  case  the VA May have committed CUE when they chose not to rate the higher of the evaluation  between the heart disease and the kidney disease??

''My contention is, The rater was correct in assigning the loss of use x 2 as an "L" rating. The rater then had a a choice  to make as to whether to use the 100% Heart disease or the 100% Kidney Disease for the boost to "M".

Had the rater chosen the Kidney Disease, instead of the Heart Disease, for the Boost to "M" That would leave the Heart Disease as an unused 100%award to become a basis for the need for A&A. That scenario would have given the most favorable outcome to the veteran.

How can I support my contention, by statute, that the VA is mandated in every incident, to give to the veteran the most advantageous ruling where there is an option to consider?

I have another thread open, but here in this thread, I am looking for a matter of law to support my contention''.

asknod maybe?

 

seems to me James was lowballed...but I could be wrong  this is just my opinion  , Berta broncovet and asknod will know more about this.

 

...........Buck

[Sgt. Wilky]

24 minutes ago, broncovet said:

Great answer, Buck, yours was a better answer than mine.  This should be a new post titled "benefit of the doubt", so that other Veterans can find these tasty gems that could/should help them win.  The BOD arguement is so strong that many VSO's use it exclusively.  While I think that is a mistake, I wont disagree that many, many a Veteran has one his claim on BOD.  

I certainly do. Despite well documented evidence, the BVA used the term "equipoise" a few times in their decision. I even asked for BOD on my feet issues when a discrepancy arose in my SMRs. Naturally, back in 2009 the DRO still ignored the request and it took the BVA's decision to render equipoise and/or BOD.

"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."

Yea, riiiiiiiiight.

Edited January 20, 2016 by Sgt. Wilky

[Buck52]

Elements of CUE

In order to establish CUE and warrant revision of a prior final decision, a veteran must show: (1) either the facts known at the time of the decision being attacked on the basis for CUE were not before the adjudicator, or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different.

If it is not absolutely clear that a different result would have ensued, the error alleged is not clear and unmistakable. Examples of situations that are not clear and unmistakable error include a new medical diagnosis that “corrects” an earlier diagnosis considered in the decision, or disagreement as to how the facts were weighed or evaluated

[broncovet]

Agree.  If the truth were told, the regulation would state thusly:

"Whenever there is a benefit of the doubt, the claim will be denied.  Even if there is no BOD, the Rating specialist will "make up" a denial that sounds plausable that will fail in court but serve the VA's goals in increasing homeless Veterans, and delaying claims in order to facilitate hardworking VA executive bonuses.  This will also work great in political speeches, where politicians can get re elected as they have falsely claimed that benefits are delivered timely to Veterans, while the reality is that they are delayed as long as possible to save money."  

Edited January 20, 2016 by broncovet

[Buck52]

I agree with ya broncovet, but in most VA Claims if the veteran don't give up he/she will eventually win  and get a lot of retro, how would that be saving $$.  its like they won't pay now but will pay later.

..if they would approve more claims that would be saving $$$   vs paying years of retro  when all they should do is approve the first go around.  

jmo

 

................Buck

[ArNG11]

"Robbing Peter to pay Paul"  It makes perfect sense.  Thrown in how many claimants give up due to frustrations, health issues, and financial burdens to fight the injustice, I dare say it is a well constructed game.