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CUE and Benefit of the Doubt Help

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Jamezam

Question

I've decided to take a crack at creating a CUE and Benefit of the Doubt failure for a claim that was originally denied in 1988, but finally approved in 2014. And, I currently have a pending NOD on the effective date of said claim.

I would be so grateful if anyone could view my CUE and original claim denial. My question is this, am I on the right track with my CUE? I have been developing my CUE using language based on an actual citation by the BVA awarding a CUE to a veteran for the same condition and circumstances in which mine was denied and quoting Title 38. It's so easy to get confused with all of the information out there.

So any advice will be greatly appreciated. I have uploaded my CUE in development phase and original claim denial.

 

 

Edited by Jamezam
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Remember the two ingredients- either the facts as they were known, were not before the rater (they were) or a legal statute or regulation was ignored or violated. 

Anyway, after doing some more research I came across this gem from a CAVC case, that doesn't help my case in the context of what evidence the RO did or did not review. 

Quote

However, the mere fact that the RO did not discuss [a specific] report in its decision or followup letter to the veteran does not make manifest that it did not consider it. Not until February 1990 were ROs required to include in their decisions "a summary of the evidence considered". 38 U.S.C. § 5104(b); see Veterans' Benefits Amendments of 1989, Pub.L. No. 101-237, § 115, 103 Stat. 2062, 2066 (1989). Hence, silence in a final RO decision made before February 1990 cannot be taken as showing a failure to consider evidence of record. 

I believe my CUE all comes down to whether or not the RO considered in-service aggravation of a preexisting congenital condition. Courts have held that that the presumption of soundness, which is currently set forth in 38 U.S.C.A. § 1111, requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner; Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). In sum, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service.

Berta, I'm not sure if 38 CFR 4.6 would even matter in my CUE. Because if I read the CAVC's opinion currently the RO prior to 1990, doesn't even have justify his decision. I.e., what evidence he did or did not consider?

 

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asknod,

Part of my reply disappeared. I thanked you for your reply and wisdom. And, I said I noticed you live just down the street from me. I'm in Olympia...

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8 minutes ago, Berta said:

I had an ad pop up into my reply and dont know if it is still visible or not to anyone and it seems to have disappeared

Berta, my replies have been weird too. As great as Hadit is, there is just way too many elements built into the site.

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38 CFR 4.6 has been around for decades .

The key points to that regulation are the words  "probative value".

I have a vet friend who is hinging his claim on an "element" that has no probative value whatsoever.

In other words it has nothing to do with his military service at all.It is a newspaper article.

The last time I used this reg for CUE was because VA had ignored a medical report from 1997 that had Significant probative value. It was the only piece of evidence I needed for the claim.

They denied with some medical BS and I asked them to CUE themselves as they had in their possession since 1997 and since my more recent submissions of it, a medical report from the top Cardiologist VA has at VACO. They immediately reversed and awarded. The report involved VA med recs back to 1988.

 

 

 

 

 

 

 

 

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1 minute ago, Berta said:

38 CFR 4.6 has been around for decades .

The key points to that regulation are the words  "probative value".

I guess it could be argued that even though the RO was not required to include in their decisions "a summary of the evidence considered" prior to 1990. That the probative value of 38 CFR 4.6 still applies as the RO did not consider Presumption of Soundness and Aggravation doctrine?

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This older CUE post I made contains a link to the BVA decision...... when I click on the BVA link a Facebook ad popped up and then I got the BVA web site.

Obviously it appeared that probative evidence was not considered.....but maybe not the best link....we have more successful CUEs here to go back decades.

I got another info ad this AM when I tried to post and the more recent one prevented me from replying so I got out of the site and came back and on the third try it went away.and it was from hadit...but for  some Microsoft stuff ...

I too have been frustrated by the site because I leave the site to search and then cant find where I wanted to post the reply....because it no longer is under unread, if I already had read it. These ads are irritating me as well when they pop up in the reply feature.

 

 

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