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BVA Denial letter


capitan
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Question

Just received a BVA denial letter. I would have bet the farm it was going to be approved. What are my options? The judge stated "Reasonable minds could disagree as to the ultimate determination. However, in the context of a severance case, VA is precluded from engaging in a weighing of facts. The proper remedy for the Veteran would be initiation of a new claim, not restoration of a properly severed benefit."  I thought I was making a new claim. Their decision was "The severance of service connection for squamous cell carcinoma was proper and the appeal is denied." They had granted me SC but then denied it for a CUE. Then I submitted the 3 elements of SC. The conclusion of law: "Service connection for squamous cell carcinoma (base of tongue) was properly severed, and the criteria for restoration of service connection for squamous cell carcinoma (base of tongue) have not been met." They appear to have made their decision based on weather or not the CUE was proper, not based on the new evidence contained in a direct basis, which was sufficient. I agree it was proper, they assumed my cancer was on the presumptive list. I knew it wasn't, but proved SC by direct basis. Evidently, they didn't even consider that, and of course I never got the benefit of the doubt applied. I had submitted numerous other cases, identical to mine, in which the BVA granted. Please help. I'm in shock, and don't know what to do. My American Legion rep's office is closed. I think the statement, "in the context of a severance case, VA is precluded from engaging in weighing of facts" says that by law they were not even allowed to look at the evidence, Then they say what I should do, start a new claim. I just waited 6 years and several months to get this news. Will I have to start over?

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22 minutes ago, capitan said:

Just received a BVA denial letter. I would have bet the farm it was going to be approved. What are my options? The judge stated "Reasonable minds could disagree as to the ultimate determination. However, in the context of a severance case, VA is precluded from engaging in a weighing of facts. The proper remedy for the Veteran would be initiation of a new claim, not restoration of a properly severed benefit."  I thought I was making a new claim. Their decision was "The severance of service connection for squamous cell carcinoma was proper and the appeal is denied." They had granted me SC but then denied it for a CUE. Then I submitted the 3 elements of SC. The conclusion of law: "Service connection for squamous cell carcinoma (base of tongue) was properly severed, and the criteria for restoration of service connection for squamous cell carcinoma (base of tongue) have not been met." They appear to have made their decision based on weather or not the CUE was proper, not based on the new evidence contained in a direct basis, which was sufficient. I agree it was proper, they assumed my cancer was on the presumptive list. I knew it wasn't, but proved SC by direct basis. Evidently, they didn't even consider that, and of course I never got the benefit of the doubt applied. I had submitted numerous other cases, identical to mine, in which the BVA granted. Please help. I'm in shock, and don't know what to do. My American Legion rep's office is closed. I think the statement, "in the context of a severance case, VA is precluded from engaging in weighing of facts" says that by law they were not even allowed to look at the evidence, Then they say what I should do, start a new claim. I just waited 6 years and several months to get this news. Will I have to start over?

I know you must be in pain, so I decided to reply as soon as I can. If I was in your position, I would look for legal representation.

See what various law firms have to say about your claim, and then make a decision. 
 

Known law firms:

Hill & Ponton

https://www.hillandponton.com/
 

CCK Law

https://cck-law.com/
 

Woods & Woods

https://www.woodslawyers.com/
 

Good luck.

 

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The RO granted service connection.  But they made a mistake. Error they call it. Clear Unmistakable Error, or CUE. They thought my cancer was on the presumptive list for Agent Orange caused cancers. So they severed service connection.  I have to pay for their mistake. 

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Capitan Better follow Hucast21 advise. There are many good lawyers out there, but his list is a good starting point. You need to do serious research on the legal part of this; that is what does precident say by the courts. Try https://www.va.gov/ogc/precedentopinions.asphttp://www.uscourts.cavc.gov/recent_decisions.php  And also BVA decisions as well. First thing you want to do is find out if you can appeal on the same claim, or have to start over., including time restraints.You aren't the first veteran this has happened to, but you obviously need to find out if those veterans that won their appeals did it by the appeals proceedure or because of (additional) evidence. Also, as an additional separate action, you also want to find out what is the procedure to get a full or partial waiver on the payback if that ends up what happens. Wish you well.

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