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

[Vync]

1 hour ago, Sgt. Wilky said:

...

"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.

Sgt. Wilky,
That was a great find! It is one of those "we will believe it when we see it" rules...

[broncovet]

Buck,

 

   CUE
Dont file a CUE

When a NOD will do

Dont give up BOD

That's exactly what VA wants you to do.

[Buck52]

What if the NOD was final and they still denied?

Does his mean the veteran must  apply for Re considerations of his claim? add new

& material evidence?

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.

[Guest]

51 minutes ago, Buck52 said:

What if the NOD was final and they still denied?

Does his mean the veteran must  apply for Re considerations of his claim? add new

& material evidence?

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.

Buck, I am not sure if I am following you.  If a veteran fails to file a timely NOD, the veteran can file a CUE Claim.  Remember that a veteran can file a CUE Claim at any time.  If a veteran finds new and or material evidence the veteran can re-open his/her claim and if the claim is granted or denied with an incorrect effective date the veteran can file a NOD on the new decision. The underlined statement will most likely kill most to all CUE Claims.  IMHO, if a veteran is not familiar with CUE regulations than the veteran should avoid filing a claim for CUE or higher an attorney.  Also filing a CUE claim removes the benefit of doubt in the veteran's favor.

Here is the official definition of a CUE:

20.1403  Rule 1403. What constitutes clear and unmistakable error; what does not. 

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

 

 

 

[broncovet]

Buck,

    That is exactly what CUE is for, if you have gone a year and not appealed, and find an egregarious error 

that meets the CUE standard of review.  I think it helps to think of Cue as a standard of review, not as an "error".   While CUE is an error, there are all kinds of errors, spelling errors, math errors, legal errors, factual errors, errors of omission, etc.  

[ArNG11]

7 hours ago, Buck52 said:

What if the NOD was final and they still denied?

Does his mean the veteran must  apply for Re considerations of his claim? add new

& material evidence?

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.

Buck not to sound like a smart ass, but why give up BOD, it is a powerful regulation.  With CUE, although a win is possible as long as you dot every "i" and cross every "t"  you are held to a high hell of a standard with an organization that is a true manipulator of words and facts.

Also why go for reconsideration if the claim is still alive in the appeals bracket? I will say as long as you still meet the appeals deadlines in all parts of the claim then I don't think it is impossible to get a favorable outcome.  It may be that I'm putting too much faith in the favorable laws and regulations, but I think or at least believe sticking to the facts and the strengths of your medical evidence and medical opinions would be the course to stay on, especially if you have the regulations on your side.

This is just my two cents though.  There is a time to deploy this attack, however, if not needed why go there. Too soon may prove detrimental to a claim. Does that make sense?JMO