Whatever Happened To, BENEFIT OF THE DOUBT? Options

[mrsvet28]

Mrs. Vet,
I do recommend you do something to ease your mind. If that something is preparing another appeal while you are in remand, and that makes you feel better and better prepared, far be it from me to tell you differently.
I doubt that you will be upset if you win..that you did all this work to appeal needlessly. However, if you loose, then you will have the appeal ready to go, except the parts that are specific to the newest decision.

Broncovet,

I'm not very upset, I just always am waiting for something to be screwed up again, or missing and try to stay one step ahead of them, because this whole process makes yo u bitter and suspicious when it goes on and on over the sameol' crap and you submit and resubmit and fax and mail --and I do believe it is at the end/with confirmed stressors-3 postive IMO-a solid cp diagnosis finally- with no loopholes in it-they were cued by my first POA on "duty to assist "in 5 issues-it took 7 yrs to verify stressors or even recognize them-his first diagnosis was in 70 when they called it "anxiety" and gave him librium-
if you knew the whole claim u would know why I feel this way-and of course with it all ending I'll probably burst into tears-but day by day Mrvet gets older and sicker-and this will all be for naught to not have him by my side to burst into tears with, the lawyers have it now and they feel very positive....

[sixthscents]

Sure exclusion of evidence is a CUE. Aain a "procedural" error. But this has nothing to do with any doubt or judgement right?

So once the CUE is awarded they will have to reweigh the issue with the new evidence include. If they decide against you then you can still appeal this new decison, just like it was a new claim... instead of an old one that was reopened. Further if your appeal wins the effective date of claim goes back to the original date of the first claim that led to the CUE. Understand?

So yes if they left out evidence which could effect the outcome of the decision then thats a procedural error and clearly a CUE. Yes they will have to reweigh, and if they determine against, its just like it was the first denial, so I'd file a NOD and appeal with more evidence etc... you know the deal. You can bump it to BVA etc. Also, the VA might attempt to say that the excluded evidence would have made not difference in the decision, if the do that then they can try to deny the CUE... I'd kick that to the BVA on appeal if they did. However we still are not arguing the claim or compensation, just if there was a CUE and should the claim be reopened and rexamined... I would ask BVA to examine the issue if they decide in favor of the CUE, that way you'd save the time in having the whole issue being remanded back down, etc.


This post has been edited by sixthscents: Nov 9 2009, 08:28 PM

[Pete53]

Use the BVA winners to quote the CFR;s and precedent, It works

[john999]

Pete

Maybe your raters were not up on the fact that BVA decision don't set precedents. As long as you won that is all that counts. Winning is not the main thing, it is the only thing. You probably just drowned them in evidence.

[Pete53]

Using BVA decisions helped me win my claim.

[john999]

My understanding is if the VA were to exclude evidence form a rating that might be a CUE. The resolution of the CUE would be to force the VA to reweigh all the evidence and come to a new decision. You could very will still lose based on a new reweighing of evidence . If that were to happen could you go forward with an appeal of this new decison? I have a CUE claim based on exclusion of evidence that my lawyer believes would have resulted in a much higher rating. If the VA grants the CUE the VA will have to reweigh the evidence and come to a new decision. I am worried because I think the VA will just come up with the same rating, so what do I do then? Get me? It is going to the BVA. If we fail at the BVA then I guess it is the court if the lawyer wants to pursue it which he probably won't. My claim is not based on reweighing evidence. It is based on exclusion of evidence that would likely have resulted in a different decision.

[sixthscents]

Again the point you seem to be missing is that a CUE claim is NOT an ordinary appeal. As such there is no conflict. If there is any doubt that there might be a CUE, then by definition it will be denied since it is NOT a CUE.

A lot of people seem to be under the impression that if the VA makes a mistake, then that is a CUE. This is simply not true. Only if the VA makes a mistake in which there is no doubt they did... is a CUE claim relevant. So the whole idea of "benefit of the doubt" simply does not apply.

A CUE claim is not where the rater make a poor decision, nor when the made a biased one, nor when they did not grant reasonable doubt. A CUE claim is where the VA CLEARLY without a doubt makes a mistake, and its normally a procedural one, not a resolution of if something meets a certain standard of acceptance as being either for or against the veteran.

For example: a veteran who's rating was based upon evidence which the rater weighed incorrectly, based upon their opinion... (the rater's opinion that is) well thats not a CUE claim. That an appeal issue.

A rater who fails to consider a claimed condition for rating, yet mentions it in their final decison... well that is a CUE since they failed to even rate the condition - now this does not mean the vet will get a favorable rating, but that the claim must be reviewed and the missed claimed illness or injury included.

The whole idea behind a CUE is that there really can be no doubt, at all, whatsoever, that the rating authority made an error. Normally the fail to consider some evidence, or fail to rate a claimed illness etc. So even if a veteran gets the VA to admit a CUE is valid, then mostly all they can do is get the VA to actually consider the evidence in relation to the original claim, or the claimed illness they missed.

I simply dont know how I can make this any clearer.... a CUE is a CLEAR and UNMISTAKEABLE ERROR on the part of the VA. Period. Many people say that the VA made a CUE because they misunderstand that the definition of a CUE is so very very narrow. There can be no reasonable doubt in anyones mind that an error was made... thats a CUE. Simply making a poor judgement, thats still wrong but if the vet files a CUE claim it will be denied, and the rating authority may or may not go ahead and rule on the issue as a normal appeal. They are supposed to, but sometimes they do and sometimes they dont. So a vet can file a CUE claim and waste 2 years.

Literally if the error is so obvious - glaringly obvious - that all of us would shake our heads and all of us would agree an error had been made, well thats a CUE.
Otherwise a normal appeal should be filed.

It also seems you are saying that a CUE is when a veteran files beyond their one year mark, and it's not. Maybe I misunderstood what you wrote, but a CUE claim has nothing to do with filing after the one year mark - except if you can PROVE that a CUE occured in the original claim, you can argue for an appeal based upon the CUE and a benefit date back to the original claim date. If the CUE is upheld the original claim date will be the one applied, not the date of appeal and CUE claim.

CUE's have nothing to do with reasonable doubt. If there is any doubt it AINT A CUE.

I just don't know how to make this any clearer... and there seems to be a lot of confusion on the subject.

Bob Smith

This post has been edited by sixthscents: Nov 9 2009, 08:26 AM

[broncovet]

Bob Smith
Precisely. "Benefit of the doubt" and CUE rules are in conflict with one another.

If you read the following opinion by two VA lawyers, offered at http://www.vawatchdog.org/09/nf09/nfnov09/nf110909-3.htm
you will agree that the Supreme court has ruled ALL reasonable doubt be resolved in favor of the claimant, and makes NO exceptions for when the Veteran appeals beyond the one year period (CUE).

The Supreme Court observed that claimants had numerous
rights while pursuing a claim, including the right to a hearing, 30 ex parte
proceedings, with no opposition by a government official,31 assistance
25 38 U.S.C. § 211(a) (1982); see also Walters, 473 U.S. at 307 (the Court, citing to Johnson
v. Robison, 415 U.S. 361 (1974), acknowledged that an exception to the general preclusion
of judicial review was a constitutional challenge).
26 Nat’l Ass’n of Radiation Survivors, 589 F. Supp. at 1305.
27 38 U.S.C. § 3405 (1982).
28 See, e.g., Walters, 473 U.S. at 309; see also The Avalon Project at Yale Law School,
http://www.yale.edu/lawweb/avalon/presiden...ug/lincoln2.htm (last visited Sept. 1, 2008).
29 Walters, 473 U.S. at 309.
30 38 C.F.R. § 3.103© (1984).
31 Id. § 3.103(a).
8
by the rating board in developing facts pertinent to the claim,32 and
consideration of all evidence offered by the claimant.33 Further, the
Supreme Court pointed out that all reasonable doubts had to be resolved
in favor of the claimant.34 Finally, the Supreme Court observed that BVA
hearings were subject to the same rules as local agency hearings and
were likewise ex parte, with no formal questioning or cross examination,
and no formal rules of evidence applying.35

This post has been edited by broncovet: Nov 9 2009, 07:20 AM

[sixthscents]

Broncovet,
I... well I am speechless at your posts here. First and foremost, since when does a CUE have ANYTHING to do with "benefit of the doubt"... A CUE, by its very definition is CLEAR and UNMISTAKEABLE, there can be no doubt or there is no CUE. A CUE is a very special and very narrowly defined instance. Now I'm no cheerleader for the VA, but stating that since they don't allow the application of "benefit of the doubt" to lie in favor of a veteran in a CUE case is... well absurd.

Again just to make sure we all understand... a CUE claim is a CLEAR AND UNMISTAKEABLE ERROR... this means that any person looking at the facts inherent to the claim would judge that an error had been made. It must be a glaring error, obvious to anyone who looks at the case and is knowlegeable of VA law. There can be no "doubt" about a CUE... or it is NOT a CUE...

I have filed and won a CUE claim, and seen many sink beneath the waves because they followed the same sort of logic here. Not every error made by the VA is a CUE error.. thats just a fact. In those the benefit of the doubt may come into play, but not in a CUE claim.

Again... Clear and Unmistakeable... the title gives it away I think.

Bob Smith

This post has been edited by sixthscents: Nov 8 2009, 11:42 PM

[broncovet]

Mrs. Vet,
I do recommend you do something to ease your mind. If that something is preparing another appeal while you are in remand, and that makes you feel better and better prepared, far be it from me to tell you differently.
I doubt that you will be upset if you win..that you did all this work to appeal needlessly. However, if you loose, then you will have the appeal ready to go, except the parts that are specific to the newest decision.

[Vync]

What about benefit of the doubt in this link?

[mrsvet28]

Mrs Vet:
The "benefit of the doubt" lies in the eyes of the beholder, and it is the RO who decides, and it takes a lot of time, and is not always successful for the Veteran to be given "the benefit of the doubt" upon appeal.
Example: A "close call" is denied by the RO. The Veteran waits more than 12 months to appeal, then appeals. The appeal will almost automatically be denied, based upon an "untimely appeal", that is, a NOD filed by the Veteran MORE than 12 months after the RO decision. This "close call" will not meet the strict CUE standard, as differences in judgement calls are specifically excluded from the possibility of CUE. End result to the Veteran: The "benefit of the doubt" is ruled against the Veteran. This is not an isolated incident, and, the VA wants to shorten the appeal period to 6 months or less so that even less Veterans get the "benefit of the doubt", because that goes out the window if the Veteran can not/does not timely appeal. It would not matter even if the Veteran was in the hospital, was mentally ill, or even in a coma the entire 12 months..even for SC conditions..his appeal is automatically thrown out if it is past the one year period and the case was decided on a "judgement call". The Veteran then has to try to prove the difficult "grave procedural error" that is, CUE, in order to win his claim and there is NO benefit of the doubt, in fact, in this example, for the Veteran.
Mentally ill, PTSD, or even comatose Veterans, along with other Veterans, are required to appeal within the 12 month period to get the benefit of the doubt. Since many are unable or unwilling to do that, they are, in fact, denied "benefit of the doubt". The VA uses the Veterans own disabilities against him as a lever to deny his claim.

So is it wise to prepare to appeal again while you are in remand?or do they just need to connect the dots? The situation here is all of our appeals were timely since 1998--4037 days and counting....since first NOD...I believe there is CUE all over this-but hired a llawyer over 2 years ago..he is my thirdPOA and I'm letting them get headaches now...Thanks for your reply

[broncovet]

Mrs. Vet:
I would like to suggest you use EXTREME caution in citing BVA decisions in your appeal, if you do it yourself. Your arguement will be weak, because the VA has many, many lawyers on staff (fighting against the Veteran) who will likely argue that the BVA decision is "non precedential", and they would be right. You might as well be telling them that your Uncle Charlie, who does not read or write, thinks you should get your benefits.
I recommend you stick with Precedential CASES, that is, the Federal Circuit court, or even the supreme court. Cite CAVC case law only if you are sure it is precedential. BVA cases are almost never precedential.

[broncovet]

Mrs Vet:
The "benefit of the doubt" lies in the eyes of the beholder, and it is the RO who decides, and it takes a lot of time, and is not always successful for the Veteran to be given "the benefit of the doubt" upon appeal.
Example: A "close call" is denied by the RO. The Veteran waits more than 12 months to appeal, then appeals. The appeal will almost automatically be denied, based upon an "untimely appeal", that is, a NOD filed by the Veteran MORE than 12 months after the RO decision. This "close call" will not meet the strict CUE standard, as differences in judgement calls are specifically excluded from the possibility of CUE. End result to the Veteran: The "benefit of the doubt" is ruled against the Veteran. This is not an isolated incident, and, the VA wants to shorten the appeal period to 6 months or less so that even less Veterans get the "benefit of the doubt", because that goes out the window if the Veteran can not/does not timely appeal. It would not matter even if the Veteran was in the hospital, was mentally ill, or even in a coma the entire 12 months..even for SC conditions..his appeal is automatically thrown out if it is past the one year period and the case was decided on a "judgement call". The Veteran then has to try to prove the difficult "grave procedural error" that is, CUE, in order to win his claim and there is NO benefit of the doubt, in fact, in this example, for the Veteran.
Mentally ill, PTSD, or even comatose Veterans, along with other Veterans, are required to appeal within the 12 month period to get the benefit of the doubt. Since many are unable or unwilling to do that, they are, in fact, denied "benefit of the doubt". The VA uses the Veterans own disabilities against him as a lever to deny his claim.

This post has been edited by broncovet: Nov 8 2009, 11:09 AM

[sixthscents]

good point, or ignore them...

[mrsvet28]

while I agree with carlie..

benefit of doubt went out and "trust but verify" went in....

though how you could trust someone and feel the need to fact check them is beyond me... its seems to be a contradiction.. but the so much of what the VA does is.

Bob

and dont forget fact check and then loose the facts!

[sixthscents]

while I agree with carlie..

benefit of doubt went out and "trust but verify" went in....

though how you could trust someone and feel the need to fact check them is beyond me... its seems to be a contradiction.. but the so much of what the VA does is.

Bob

[mrsvet28]

mrsvet,
Here's a copy and paste of a 2009 BVA decision that shows
application and definition of the benefit of the doubt rule
in a very clear way.

carlie


The evidence shows that the Veteran served as a tank crewman,
light truck driver and a construction foreman in service.
Based on his military occupational specialties, the Veteran
was clearly exposed to excessive noise throughout his time in
service from tanks, artillery, military trucks and
construction, and this has in fact been conceded. The Board
notes that the Veteran also claims to have been in combat as
a tank operator in Germany. The evidence of record is
consistent with the Veteran's reports. However, as noise
exposure has already been conceded, application of the combat
presumption set forth in 38 U.S.C.A. § 1154((IMG:http://www.hadit.com/forums/style_emoticons/default/cool.gif) is moot.

There is also no dispute that the Veteran currently has
tinnitus. Thus, the only remaining question is whether the
Veteran's current bilateral tinnitus is related to the noise
exposure incurred in service.

The Veteran had a VA examination in November 2007 at which he
reported both military and civilian occupational noise
exposure. He reported a bilateral buzzing tinnitus, which
does not interfere with sleep, left greater than right.
However, the examiner indicated in the examination report
that the Veteran did not know the date and circumstances of
its onset. The examiner also noted the report of a recent
private audiological exam that showed high-frequency hearing
loss bilaterally, but the presence tinnitus was not noted.
Based on the Veteran's lack of knowledge as to the onset of
his present tinnitus and the private audiological exam report
that failed to show a report of tinnitus, the examiner opined
that the Veteran's tinnitus is not the result of acoustic
trauma incurred during military service because noise-induced
tinnitus occurs at the time of the exposure, not after the
noise has ceased.

Although the VA examiner gave a negative nexus opinion, after
considering all the evidence, the Board finds that the
evidence is at least in equipoise as to whether the Veteran's
present tinnitus is related to in-service or post-service
noise exposure. In response to the VA examination report,
the Veteran stated that, although he was unable to report the
exact date that his tinnitus began, he did tell the examiner
that he cannot remember a time since the war that this
buzzing was not present. Thus, there is contradictory
evidence as to the onset of the Veteran's present tinnitus.

Further, although in-service noise exposure has been
conceded, the evidence also shows that the Veteran had
civilian occupational noise exposure as a truck driver and a
police officer for at least 53 years. Thus, it is unclear
whether the Veteran's tinnitus is related to military noise
exposure or civilian occupational noise exposure.

Finally, although the VA examiner rested her negative nexus
opinion on the fact that the Veteran could not pinpoint the
exact time of the onset of his tinnitus, the Board notes that
the Veteran was 81 years old at the time of the VA
examination, meaning he was discharged from service more than
60 years before that. In addition, it appears the Veteran
was exposed to a multitude of instances of acoustic trauma in
service (as indicated by his military occupational
specialties). Thus, the examiner's reliance on the fact the
Veteran was not able to pinpoint an exact time or
circumstance of the onset of his tinnitus is questionable.
In addition, the Veteran's response that he told the examiner
that he does not remember a time without tinnitus since the
war sets forth a continuity of symptomatology that the
evidence of record does not contradict. Furthermore, the
private audiological exam report is insufficient for purposes
of rebuttal evidence because it is a form and does not
contain a place where a complaint of tinnitus could be noted.
Thus, the fact that it does not note a complaint of tinnitus
cannot be negative evidence against the Veteran's claim.
Moreover, the Board notes that the Veteran's report of his
tinnitus being worse on the left than the right is consistent
with the Veteran's bilateral hearing loss, which is the same
as set forth by the audiological findings. Thus, the Board
finds the VA examiner's opinion has little to no probative
value.

Based upon the above, the Board finds that the evidence is in
equipoise and a reasonable doubt exists as to whether the
Veteran's current bilateral tinnitus is related to his
military noise exposure. When, after considering all the
evidence, a reasonable doubt arises regarding a determinative
issue, the benefit of the doubt shall be given to the
claimant. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App 49, 55-57 (1990). Giving the benefit of the doubt to the
Veteran, therefore, service connection for bilateral tinnitus
is granted.

Thanks Carlie

[mrsvet28]

I see a big light at the end of your tunnel, MrsVet....Best wishes..

will the light be my maker? or a final decision? (IMG:http://www.hadit.com/forums/style_emoticons/default/biggrin.gif)

[carlie]

mrsvet,
Here's a copy and paste of a 2009 BVA decision that shows
application and definition of the benefit of the doubt rule
in a very clear way.

carlie


The evidence shows that the Veteran served as a tank crewman,
light truck driver and a construction foreman in service.
Based on his military occupational specialties, the Veteran
was clearly exposed to excessive noise throughout his time in
service from tanks, artillery, military trucks and
construction, and this has in fact been conceded. The Board
notes that the Veteran also claims to have been in combat as
a tank operator in Germany. The evidence of record is
consistent with the Veteran's reports. However, as noise
exposure has already been conceded, application of the combat
presumption set forth in 38 U.S.C.A. § 1154(b) is moot.

There is also no dispute that the Veteran currently has
tinnitus. Thus, the only remaining question is whether the
Veteran's current bilateral tinnitus is related to the noise
exposure incurred in service.

The Veteran had a VA examination in November 2007 at which he
reported both military and civilian occupational noise
exposure. He reported a bilateral buzzing tinnitus, which
does not interfere with sleep, left greater than right.
However, the examiner indicated in the examination report
that the Veteran did not know the date and circumstances of
its onset. The examiner also noted the report of a recent
private audiological exam that showed high-frequency hearing
loss bilaterally, but the presence tinnitus was not noted.
Based on the Veteran's lack of knowledge as to the onset of
his present tinnitus and the private audiological exam report
that failed to show a report of tinnitus, the examiner opined
that the Veteran's tinnitus is not the result of acoustic
trauma incurred during military service because noise-induced
tinnitus occurs at the time of the exposure, not after the
noise has ceased.

Although the VA examiner gave a negative nexus opinion, after
considering all the evidence, the Board finds that the
evidence is at least in equipoise as to whether the Veteran's
present tinnitus is related to in-service or post-service
noise exposure. In response to the VA examination report,
the Veteran stated that, although he was unable to report the
exact date that his tinnitus began, he did tell the examiner
that he cannot remember a time since the war that this
buzzing was not present. Thus, there is contradictory
evidence as to the onset of the Veteran's present tinnitus.

Further, although in-service noise exposure has been
conceded, the evidence also shows that the Veteran had
civilian occupational noise exposure as a truck driver and a
police officer for at least 53 years. Thus, it is unclear
whether the Veteran's tinnitus is related to military noise
exposure or civilian occupational noise exposure.

Finally, although the VA examiner rested her negative nexus
opinion on the fact that the Veteran could not pinpoint the
exact time of the onset of his tinnitus, the Board notes that
the Veteran was 81 years old at the time of the VA
examination, meaning he was discharged from service more than
60 years before that. In addition, it appears the Veteran
was exposed to a multitude of instances of acoustic trauma in
service (as indicated by his military occupational
specialties). Thus, the examiner's reliance on the fact the
Veteran was not able to pinpoint an exact time or
circumstance of the onset of his tinnitus is questionable.
In addition, the Veteran's response that he told the examiner
that he does not remember a time without tinnitus since the
war sets forth a continuity of symptomatology that the
evidence of record does not contradict. Furthermore, the
private audiological exam report is insufficient for purposes
of rebuttal evidence because it is a form and does not
contain a place where a complaint of tinnitus could be noted.
Thus, the fact that it does not note a complaint of tinnitus
cannot be negative evidence against the Veteran's claim.
Moreover, the Board notes that the Veteran's report of his
tinnitus being worse on the left than the right is consistent
with the Veteran's bilateral hearing loss, which is the same
as set forth by the audiological findings. Thus, the Board
finds the VA examiner's opinion has little to no probative
value.

Based upon the above, the Board finds that the evidence is in
equipoise and a reasonable doubt exists as to whether the
Veteran's current bilateral tinnitus is related to his
military noise exposure. When, after considering all the
evidence, a reasonable doubt arises regarding a determinative
issue, the benefit of the doubt shall be given to the
claimant. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App 49, 55-57 (1990). Giving the benefit of the doubt to the
Veteran, therefore, service connection for bilateral tinnitus
is granted.

[Commander Bob]

Hoppy,
Same here with Mrvets claim -- after the remand -it took them a year to schedule a CP exam because the IMO(favorable) and the VA CP differentiated in the PTSD diagnosis-then they put it in a "special handing place "for 150 days(whever that was) they said they couldnt schedule anything until the 150 period expried-then it had to wait another 120 days before anexam could be scheduled-the remand warrented the new CP exam to find a PTSD diagnosis of 50 % or greater- because originally it said based upon the evidence of record the regional office would permit finding of service-connection, because of the differnce of opinions between the IMO's and the VA- it stalled it for 3yearstotal--now the AUG CP was favorable-and it was supoosed to be afforded "expeditious treatment"the folder didnt get back to the DRO till Oct 1--the whole month of Sept went by-it is now Nov./and they never recognized he has been on SS for PTSD-and a NSC pension since 03' because he can't work and we had no income-but it doesnt seem to matter-/when I called they told me it is on the DRO desk-so I put some heat on the attys. to speed this up-this is the only diagnosis we needed to settle the claim-they already verified the stressors/ and the SS IMO and 3 private IMO-and 3 VA exams !!! We have been stuck in the wheel for 12 years--Take Care MrsVet

I see a big light at the end of your tunnel, MrsVet....Best wishes..

This post has been edited by Commander Bob: Nov 3 2009, 01:35 PM

[mrsvet28]

The reason it gets overlooked is because there are too many dots to connect. Your average undertrained RO raters don't seem to be able to figure it out. I have two claims that were awarded by DRO's who weighed the evidence for the claim with the evidence against the claim applied the benefit of the doubt rule.

At the time I was represented by a service officer who had been a veteran's rating specialist for the VA for 20 years prior to becoming a service officer. Due to well-planned stall tactics and idiotic denials It took many years for me to get to the DRO. My service officer and I used to argue as to why a slamdunk claim was taking so long. The RO claimed that there was evidence against my claim when in fact the evidence could not be substantiated. Years later I was awarded based on the benefit of the doubt as applied by a DRO. However, I always thought that the DRO used the benefit of the doubt rule to cover up the absolute absurdity that the RO thought there was evidence against my claim.


In the arguments I had with my X. rating specialist now service officer representative I took the position that the raters were corrupt, grossly incompetent or had just committed fraud. My service officer would take the position that the raters were so undertrained that is why he jumped sides and became a service officer. He just couldn't take working with all these undertrained rating specialist. I'm sure we might have a couple rating specialist on the board who would take offense to my position. However, it took me eight and a half years to get what should've been a slamdunk award for a life-threatening vascular disease. My employer who was city government terminated my employment and then determine that could not participate in vocational rehabilitation because an independent rehabilitation specialist hired to defend an ADA claim determined that there was no way to safely accommodate my disease. Equal opportunity employment commission agreed with the independent rehabilitation specialist and I was out on the street. During which time I had to file bankruptcy, became homeless and otherwise not a happy camper.

From time to time I have gone on this rant here on hadit over the last 13 years. Something for any defenders of rating specialist to chew on it is that my claims were awarded by the DRO with no new evidence.The delays and stall tactics resulted in an award of 6 1/2 years of retro-with no CUE'S or other misapplication's of law.


What is even sicker is that I'm now representing another veteran whereby the rater has taken a position against the claim based on diagnostic tools that were so unreliable they were considered in applicable for continued use and replaced. The rater also stated in direct conflict with the medical evidence that the veteran had not been treated post service for the condition which he sought to have service connected. These are the same type of tactics they used in delaying and denying my claim. The raters just like to make decisions playing Dr. rather than get an opinion from a Dr. One of the reasons my claim took so long was that they refused to schedule a C&P exam and also defended my claim by citing evidence-based the same broken, unreliable, obsolete and otherwise discarded diagnostic tools that they used and are continuing to use against veterans 10 years later.

Hoppy,
Same here with Mrvets claim -- after the remand -it took them a year to schedule a CP exam because the IMO(favorable) and the VA CP differentiated in the PTSD diagnosis-then they put it in a "special handing place "for 150 days(whever that was) they said they couldnt schedule anything until the 150 period expried-then it had to wait another 120 days before anexam could be scheduled-the remand warrented the new CP exam to find a PTSD diagnosis of 50 % or greater- because originally it said based upon the evidence of record the regional office would permit finding of service-connection, because of the differnce of opinions between the IMO's and the VA- it stalled it for 3yearstotal--now the AUG CP was favorable-and it was supoosed to be afforded "expeditious treatment"the folder didnt get back to the DRO till Oct 1--the whole month of Sept went by-it is now Nov./and they never recognized he has been on SS for PTSD-and a NSC pension since 03' because he can't work and we had no income-but it doesnt seem to matter-/when I called they told me it is on the DRO desk-so I put some heat on the attys. to speed this up-this is the only diagnosis we needed to settle the claim-they already verified the stressors/ and the SS IMO and 3 private IMO-and 3 VA exams !!! We have been stuck in the wheel for 12 years--Take Care MrsVet

[Jayg]

I know you don't want to depend on benefit of the doubt. You want there to be no doubt. You want to just put so much evidence on your side the scale hits the ground.
The only time the VA has mentioned benefit of doubt is when they deny me.

Having evidence on your side don' mean nuttin' when all they have to do is lie or falsify the record. As just one example in my case they took a mildly supportive statement by my primary care physician, mildly mind, not even a strong one, and said that the doctor did not enter it into the record. They said the statement was "made by a- get this-- physician's- assistant-- student--- and that it was "erroneously perpetuated throughout the record." Funny. (as in 'strange' most certainly not 'funny- ha ha') That's not what my copy of the records show... (IMG:http://www.hadit.com/forums/style_emoticons/default/dry.gif)

as for my doctor's IMO, their physician's assistant said "it is not medically feasible..." Now who can argue with that?

Hoppy, I am really glad you got yours. I'm only on 5 years and counting. I have had to go bankrupt but still have my family and home. (so far) and not so serious health problems (mine are crippling but not life threatening).
In my case, they're not so much denying my claim as refusing to look at it. My claim is sitting with the superviser who is supposed to assign it to a rater. And it has been sitting with this superviser who so far hasn't demonstrated any interest in assigning it to (another) rater who can make a decision.

So absolutely nothing is happening.

I'm about at the point where I would almost welcome another denial just so's I can go on to the next step... (IMG:http://www.hadit.com/forums/style_emoticons/default/mad.gif)

[kw34]

Sorry to hear about the melanoma, kw34... Congratulations on the VA ruling in your favor.. Like Philip Rogers posted, your claim was so well grounded that there was no need to invoke the "benefit of the doubt rule". I see you are listing a 10% disability , Is that all???


Off topic...You have an outstanding SAC avatar, kw34. I lived on Clark Air Base, Philippines, when my dad was still in the USAF, back in the 1950's... I find that patch very nostalgic. This photo was taken from Clark AFB before the volcano buried it. Again Congratulations on the win...

Commander Bob,
KC-135 and KC-10 in the eighties a SAC trained killer we used to say. Yes 10% is low thats the VA way the NOD is in I am in wait mode again now.

[cowgirl]

Not sure if this is 'benefit of the doubt'. What'dya think? One paragraph shows examiners' opinions 'con / pro' for unemployable due to sc conditions. The other said "all reasonable doubt has been resolved in your favor and entitlement to iu is granted because...". This was a NOD.

Hope this helps~!

This is what was stated in my decision letter "As the preponderance of the evidence of record provides a positive link between your diagnosis of melanoma and your exposure in service, service connection is warranted".

I have not been able to figure out if it was benefit of doubt or if the evidence was so overwhelming. I have to agree they will figure out how to screw you.

[Commander Bob]

This is what was stated in my decision letter "As the preponderance of the evidence of record provides a positive link between your diagnosis of melanoma and your exposure in service, service connection is warranted".

Sorry to hear about the melanoma, kw34... Congratulations on the VA ruling in your favor.. Like Philip Rogers posted, your claim was so well grounded that there was no need to invoke the "benefit of the doubt rule". I see you are listing a 10% disability , Is that all???


Off topic...You have an outstanding SAC avatar, kw34. I lived on Clark Air Base, Philippines, when my dad was still in the USAF, back in the 1950's... I find that patch very nostalgic. This photo was taken from Clark AFB before the volcano buried it. Again Congratulations on the win...

This post has been edited by Commander Bob: Nov 2 2009, 01:53 PM

Attached File(s)

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[Philip Rogers]

That meant your evidence was more than 50% positive, so there was no need to invoke the benefit of the doubt. It doesn't mean that your evidence was "overwhelming," but it was enough to rule in your favor.

pr

This is what was stated in my decision letter "As the preponderance of the evidence of record provides a positive link between your diagnosis of melanoma and your exposure in service, service connection is warranted".

I have not been able to figure out if it was benefit of doubt or if the evidence was so overwhelming. I have to agree they will figure out how to screw you.

[MikeR]

I have seen it used, but typically when the VET has multiple IMO's and they cannot find a reason to deny, they like to pretend they are being so generous.

[john999]

I know you don't want to depend on benefit of the doubt. You want there to be no doubt. You want to just put so much evidence on your side the scale hits the ground.
The only time the VA has mentioned benefit of doubt is when they deny me.

[kw34]

This is what was stated in my decision letter "As the preponderance of the evidence of record provides a positive link between your diagnosis of melanoma and your exposure in service, service connection is warranted".

I have not been able to figure out if it was benefit of doubt or if the evidence was so overwhelming. I have to agree they will figure out how to screw you.

[broncovet]

The VA has replaced a few of the letters to the benefit of the doubt doctrine.
It is supposed to read, "when in doubt FAVOR the Veteran. "
It now says, "When in doubt FU** The Vetran"

[Philip Rogers]

I believe the benefit of doubt is only given given when the evidence is relatively equipose or equal. Understand that we are working with a very flawed system. Everything can be there and they still deny . . . and get away with it. I know it's very frustrating. It took me 10yrs, even tho all the evidence and all my doctors stated I was unemployable. It is what it is and we just have to keep plugging along, doing our best.

pr

This post has been edited by Philip Rogers: Nov 2 2009, 06:56 AM

[Testvet]

The VA has their thumb on the scale.

are you sure it's their thumb I think it's their small organ brain

[Testvet]

WAS JUST THINKING -HAVENT HEARD MUCH LATELY ABOUT BENEFIT OF THE DOUBT -SEEMS LIKE IT VANISHED-- DOES IT STILL STAND IN APPEALS PROCESS- HAVENT READ THEM LATELY (IMG:http://www.hadit.com/forums/style_emoticons/default/dry.gif)

The Judge in my BVA case plainly stated that my IMOs versus the VA doctors statements left my case in relative equipose and he decided the case in my favor I would imagine that would be giving me the benefit of the doubt the fact all of my doctors were board certified cardiologists and one psychiatrist a retired Army Colonel and the quacks the VA used were not board certified cardiologists not one of the 4 C&P exams were done by a cardiac doctor......

but reasonable doubt at the VARO level is non-existent I think they operate on the basis that all claims are fraudulent until proven otherwise

[Wings]

The reason it gets overlooked is because there are too many dots to connect. Your average undertrained RO raters don't seem to be able to figure it out. I have two claims that were awarded by DRO’s who weighed the evidence for the claim with the evidence against the claim applied the benefit of the doubt rule.

At the time I was represented by a service officer who had been a veteran's rating specialist for the VA for 20 years prior to becoming a service officer. Due to well-planned stall tactics and idiotic denials It took many years for me to get to the DRO. My service officer and I used to argue as to why a slamdunk claim was taking so long. The RO claimed that there was evidence against my claim when in fact the evidence could not be substantiated. Years later I was awarded based on the benefit of the doubt as applied by a DRO. However, I always thought that the DRO used the benefit of the doubt rule to cover up the absolute absurdity that the RO thought there was evidence against my claim.


In the arguments I had with my X. rating specialist now service officer representative I took the position that the raters were corrupt, grossly incompetent or had just committed fraud. My service officer would take the position that the raters were so undertrained that is why he jumped sides and became a service officer. He just couldn't take working with all these undertrained rating specialist. I'm sure we might have a couple rating specialist on the board who would take offense to my position. However, it took me eight and a half years to get what should've been a slamdunk award for a life-threatening vascular disease. My employer who was city government terminated my employment and then determine that could not participate in vocational rehabilitation because an independent rehabilitation specialist hired to defend an ADA claim determined that there was no way to safely accommodate my disease. Equal opportunity employment commission agreed with the independent rehabilitation specialist and I was out on the street. During which time I had to file bankruptcy, became homeless and otherwise not a happy camper.

From time to time I have gone on this rant here on hadit over the last 13 years. Something for any defenders of rating specialist to chew on it is that my claims were awarded by the DRO with no new evidence.The delays and stall tactics resulted in an award of 6 1/2 years of retro-with no CUE’S or other misapplication's of law.


What is even sicker is that I'm now representing another veteran whereby the rater has taken a position against the claim based on diagnostic tools that were so unreliable they were considered in applicable for continued use and replaced. The rater also stated --in direct conflict with the medical evidence-- that the veteran had not been treated post service for the condition which he sought to have service connected. These are the same type of tactics they used in delaying and denying my claim. The raters just like to make decisions playing Dr. rather than get an opinion from a Dr. One of the reasons my claim took so long was that they refused to schedule a C&P exam and also defended my claim by citing evidence-based the same broken, unreliable, obsolete and otherwise discarded diagnostic tools that they used and are continuing to use against veterans 10 years later.

x
x
x

This is a good rant Hoppy!! Have you found any contemporary case law (other than VCAA) that authorizes C&P Exams in the first instance of claim? I looked and looked, but other than citing the VCAA (codified law yr 2000), I could not find VA regulations for C&P's outside of certain implicit health directives. Hope you are feeling confident about kicking some butt. Keep up the good work! ~Wings

[halos2]

Whatcha mean peeples?? The VA always replys with the Benefit of Doubt Rule, yesum it doubts that the Veteran will ever be given the benefit of doubt on the 1st, 2nd, 3rd...try when submitting his/her claim. The rule they believe is meant to be broken ALL of the time by the raters, with their constant denials.
Hoppy you are so on the top of this one with your educated responses, and validated personal experiences. I too am so damn sick and tired of some flunky dening my Dr's statements...WTF when did they go to medical school?? NOT!! Yet they can get by with a system so corrupt to screw the vet and give bonus's to those who do the most screwing.
These are peoples lives, not game playing. If I was healthier I would try for one of these positions...BTW I never see them posted...seems they always go to family members or friends who work there too.

[john999]

The VA has their thumb on the scale.

[Hoppy]

The reason it gets overlooked is because there are too many dots to connect. Your average undertrained RO raters don't seem to be able to figure it out. I have two claims that were awarded by DRO’s who weighed the evidence for the claim with the evidence against the claim applied the benefit of the doubt rule.

At the time I was represented by a service officer who had been a veteran's rating specialist for the VA for 20 years prior to becoming a service officer. Due to well-planned stall tactics and idiotic denials It took many years for me to get to the DRO. My service officer and I used to argue as to why a slamdunk claim was taking so long. The RO claimed that there was evidence against my claim when in fact the evidence could not be substantiated. Years later I was awarded based on the benefit of the doubt as applied by a DRO. However, I always thought that the DRO used the benefit of the doubt rule to cover up the absolute absurdity that the RO thought there was evidence against my claim.


In the arguments I had with my X. rating specialist now service officer representative I took the position that the raters were corrupt, grossly incompetent or had just committed fraud. My service officer would take the position that the raters were so undertrained that is why he jumped sides and became a service officer. He just couldn't take working with all these undertrained rating specialist. I'm sure we might have a couple rating specialist on the board who would take offense to my position. However, it took me eight and a half years to get what should've been a slamdunk award for a life-threatening vascular disease. My employer who was city government terminated my employment and then determine that could not participate in vocational rehabilitation because an independent rehabilitation specialist hired to defend an ADA claim determined that there was no way to safely accommodate my disease. Equal opportunity employment commission agreed with the independent rehabilitation specialist and I was out on the street. During which time I had to file bankruptcy, became homeless and otherwise not a happy camper.

From time to time I have gone on this rant here on hadit over the last 13 years. Something for any defenders of rating specialist to chew on it is that my claims were awarded by the DRO with no new evidence.The delays and stall tactics resulted in an award of 6 1/2 years of retro-with no CUE’S or other misapplication's of law.


What is even sicker is that I'm now representing another veteran whereby the rater has taken a position against the claim based on diagnostic tools that were so unreliable they were considered in applicable for continued use and replaced. The rater also stated in direct conflict with the medical evidence that the veteran had not been treated post service for the condition which he sought to have service connected. These are the same type of tactics they used in delaying and denying my claim. The raters just like to make decisions playing Dr. rather than get an opinion from a Dr. One of the reasons my claim took so long was that they refused to schedule a C&P exam and also defended my claim by citing evidence-based the same broken, unreliable, obsolete and otherwise discarded diagnostic tools that they used and are continuing to use against veterans 10 years later.

This post has been edited by Hoppy: Nov 1 2009, 09:38 PM

[jbasser]

Yes it still applies. It gets over looked often.

J

[mrsvet28]

WAS JUST THINKING -HAVENT HEARD MUCH LATELY ABOUT BENEFIT OF THE DOUBT -SEEMS LIKE IT VANISHED-- DOES IT STILL STAND IN APPEALS PROCESS- HAVENT READ THEM LATELY (IMG:http://www.hadit.com/forums/style_emoticons/default/dry.gif)