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this may be better than filing a cue for me

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mos1833

Question

hi 

my claim was denied in 1985 because they said i had a defect in my back.

that law changed with a decesion in 82-90 a new law . from the last decision

that would ((i think )) would change their decision.

so now iam thinking of asking them to recall the last decesion 

to reconsider and use 82-90

i just read the recall rules , that says its possible when the law changes.

ill try to post it and hope yall can open it 

 

thanks

 

 

a change thats good.rtf

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  • Content Curator/HadIt.com Elder

Check out Asknod's post regarding this for a better idea of how Bove v. Shinseki works:

http://asknod.org/2012/02/25/cavc-bove-v-shinseki-equitable-tolling/

"If it's stupid but works, then it isn't stupid."
- From Murphy's Laws of Combat

Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.

 

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  • Lead Moderator

You can try that, but that was a long time ago, unless you can show that VA held up the program, such as by not responding to your NOD with the required SOC.  

As an alternative, see if you submitted "new" evidence to reopen with 38 CFR 3.156 within the appeal period.  This will keep the claim open at least until:

1.  The VA decides if your new evidence is sufficient to reopen, if they do send you such a decision you can appeal that one.

2. The decision is subsumed by another decision.  

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  • Content Curator/HadIt.com Elder

Hey mos1833,
VAOPGCPREC 11-97 covers regulatory changes. Below is a brief overview of it:

Quote

The General Counsel of VA, in a precedent opinion, has held that the determination of whether an amended regulation is more beneficial to a claimant than the prior provisions must be made on a case-by-case basis.  VAOPGCPREC 11-97.  According to the cited opinion, when there is a pertinent change in a regulation while a claim is on appeal to the Board, the Board must take two sequential steps.  First, the Board must determine whether the amended regulation is more favorable to the claimant than the prior regulation.  Second, the Board must apply the more favorable provision to the facts of the case. 

 

"If it's stupid but works, then it isn't stupid."
- From Murphy's Laws of Combat

Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.

 

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