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Benefit Of The Doubt Rule Must Be Applied


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#1 carlie

 
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Posted 05 January 2011 - 06:25 PM

38 U.S.C.A. 5107(b).
Section 5107(b) expressly provides that the benefit of the doubt rule must be applied to a claim when the evidence submitted in support of the claim is in relative equipoise. The evidence is in relative equipoise when there is an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. When the evidence is in relative equipoise, the reasonable doubt rule must be applied to the claim, and thus, the claim must be resolved in favor of the claimant. See Massey v. Brown, 7 Vet. App. 204, 206-207 (1994); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


#2 Berta

 
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Posted 06 January 2011 - 06:44 AM

This regulation is the essence of the claims process.It is a Basic right as well as a regulation.

It always bears repeating how this works.

The evidence for the claim does not have to be overwhelming or in a "preponderance" in VA lingo--just enough to weigh the scales equally.

But VA owns the scale.

This is why the new PTSD regs have been challenged by a CAVC petition by numerous lawyers-

the new PTSD regs prohibit an independent medical opinion to support a PTSD diagnosis.

Any veteran coming under the new PTSD rules ,who VA will NOT diagnose with PTSD, is left without the ability to use this basic tenet of VA case law- 38 USC 5107 (b) in order to provide an IMO.


Thanks Carlie -this is important for all newbies to read and it goes for widows /widowers claims too.

Most claims are awarded under principles of Relative Equipoise.

#3 MikeR

 
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Posted 06 January 2011 - 07:02 AM

This regulation is the essence of the claims process.It is a Basic right as well as a regulation.

It always bears repeating how this works.

The evidence for the claim does not have to be overwhelming or in a "preponderance" in VA lingo--just enough to weigh the scales equally.

But VA owns the scale.

This is why the new PTSD regs have been challenged by a CAVC petition by numerous lawyers-

the new PTSD regs prohibit an independent medical opinion to support a PTSD diagnosis.

Any veteran coming under the new PTSD rules ,who VA will NOT diagnose with PTSD, is left without the ability to use this basic tenet of VA case law- 38 USC 5107 (b) in order to provide an IMO.


Thanks Carlie -this is important for all newbies to read and it goes for widows /widowers claims too.

Most claims are awarded under principles of Relative Equipoise.


Berta,

The VA has no problem diagnosing my PTSD, they just don't want to pay for it. If the CAVC judge finds in my favor, it may overturn the roadblocks for a lot of vets.

Mike

#4 Berta

 
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Posted 06 January 2011 - 07:45 AM

"The VA has no problem diagnosing my PTSD, they just don't want to pay for it. If the CAVC judge finds in my favor, it may overturn the roadblocks for a lot of vets."



Have they questioned your stressor???

#5 Berta

 
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Posted 06 January 2011 - 08:00 AM

I checked out your older posts Mike:

Posted 09 December 2008 - 02:37 PM
"Update, I sent got a copy of the JSRRC Verification of stressors that was sent to the VA. It only half verifies what was requested. The other parts they tell the VA that I need to provide the information.
So today I sent express mail/Certified a package to the AMC with everything and a cover letter explaining what it was. Hopefully they add it to the rest. I have included Military orders, copies of pictures, copies of LES's, copies of Medals statements,copies of certificates, Letters from Senior Officers, and write ups, copies of the manifest that were used for the medals. Just for fun I added my own research including a copy of the court records of an officer that was court martialed that explains the situation, as well as expedia, and other assorted articles. I hope they at least look at it. My situation was unorthodox, but well documented on my end."

Obviously you did a lot of leg work.

Has the VA acknowledged in any way that they have these documents?

The bad thing about the CAVC is that they do not consider new evidence and focus on what VA has in the record and they primarily look for any legal errors on BVA's part that were detrimental to the claim.

However if you have a lawyer who will fight for a joint remand this can open the door for new evidence or for old evidence they have still failed to acknowledge.

When VA diagnosed your PTSD what did they attribute it to-with full medical rationale if not the stressor you claimed?

#6 broncovet

 
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Posted 06 January 2011 - 08:13 AM

The VA's interpretation of the "benefit of the doubt" regulation:


They "Doubt" the Veteran is going to get any "benefits".


#7 MikeR

 
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Posted 06 January 2011 - 02:12 PM

I checked out your older posts Mike:

Posted 09 December 2008 - 02:37 PM
"Update, I sent got a copy of the JSRRC Verification of stressors that was sent to the VA. It only half verifies what was requested. The other parts they tell the VA that I need to provide the information.
So today I sent express mail/Certified a package to the AMC with everything and a cover letter explaining what it was. Hopefully they add it to the rest. I have included Military orders, copies of pictures, copies of LES's, copies of Medals statements,copies of certificates, Letters from Senior Officers, and write ups, copies of the manifest that were used for the medals. Just for fun I added my own research including a copy of the court records of an officer that was court martialed that explains the situation, as well as expedia, and other assorted articles. I hope they at least look at it. My situation was unorthodox, but well documented on my end."

Obviously you did a lot of leg work.

Has the VA acknowledged in any way that they have these documents?

The bad thing about the CAVC is that they do not consider new evidence and focus on what VA has in the record and they primarily look for any legal errors on BVA's part that were detrimental to the claim.

However if you have a lawyer who will fight for a joint remand this can open the door for new evidence or for old evidence they have still failed to acknowledge.

When VA diagnosed your PTSD what did they attribute it to-with full medical rationale if not the stressor you claimed?


I have a lawyer. He gets very angry with the VA and I have had to talk him down a couple of times. (The Meds are working) The VA diagnosed me with PTSD and the answer kept coming back that they cannot prove my stressors. This package is everything they have. They conveniently ignore a lot of my evidence. The Doctor was very concerned that I seek help and pronto, the VA docs have no doubt and at the time gave me a GAF of 45, which I am not proud of. Some of the stuff I have dealt with is still Classified TS, so I really cannot discuss them with anyone. I had one psychologist that dropped me as a client as my "issues" were giving him nightmares. So even talking about the things I can discuss is rather futile. I am with Chisholm, Chisholm, and Kilpatrick. So far they have been most helpful. In fact much of my case is based on what I have written to the VA. If it was not for the Meds I am pretty sure I would not be working right now, but I doubt that not having something to occupy my time would be of much help to me. I don't care if they give me a 0% rating on this. I just want them to admit it.

#8 Quint7

 
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Posted 11 January 2011 - 11:14 PM

Every time I read about giving us the benefit of the doubt I laugh.
I was one of the PTSD vets who had to be humiliated by going through every detail I could remember about my combat time to "verify" I was there. Pictures, awards, medals etc. weren't good enough just a couple of years ago.
Today I am still waiting on an EED claim from 1994 and even though the last DRO said I tried to do everything right and VA dropped the ball multiple times (I wont bore anyone with details) I got a call from my rep last week suggesting that I not only remove my request for another DRO review but that I should also switch from a teleconference to a travel board as "everyone here at the RO (Buffalo) agrees with you, they just feel that they don't have the authority to approve the claim".
So it gets kicked up to BVA who will probably remand it back to Buffalo and I wait and wait and wait. All over $15000 or so in back pay. If nobody at the RO level can approve that then it is no wonder orders to give us the benefit of the doubt are ignored. Nobody wants to dare get their #$%& slapped for "giving away" money.
Sad.......

#9 Berta

 
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Posted 12 January 2011 - 09:21 AM

"I got a call from my rep last week suggesting that I not only remove my request for another DRO review but that I should also switch from a teleconference to a travel board as "everyone here at the RO (Buffalo) agrees with you, they just feel that they don't have the authority to approve the claim"."

Yeah right - I hope he isn't one of my former reps at Buffalo-

His idea would certainly string the claim out even more.

Quint you probably know the BVA awarded my AO death claim last year. The decision even states that Buffalo had multiple copies of 3 IMos and other evidence that they ignored for years.

Buffalo sent me the award letter and I actually got 3 because I questioned each one they sent- I was ready to send them another letter but the IHD regs came into play-and luckily my IHD claim went to the Nehmer people in Phila VARO.And that will resolve my issues I hope.

Buffalo refused to refund my FTCA offset.

I had to go not only over their head but over the Regional Counsel in Buffalo's head.

I got my money. Almost a year after my award- disgraceful.

You might consider preparing a letter for the OGC. Call them first to see who would be best staff attorney to direct it to.
Mike Daugherty used to handle claims questions.You can tell him I gave him your name for direction here but I think he might now have a different MOS with the OGC.

"everyone here at the RO (Buffalo) agrees with you, they just feel that they don't have the authority to approve the claim".

Is this statement documented by the VA?

There are individuals at Buffalo who are completely unable to make a decision that might cost VA some cash.That is why they ignored the regs that I sent to support my offset refund.
OGC didnt ignore them and ordered them to pay me.

If the RO doesnt have the authority to grant the claim-but they are agreeing with the claim- then you need to find someone who has authority and who can read at the VA.Their lawyers might be able to help.

Office of General COunsel 1-202=461-4900
Fax 1=202=273-6385

#10 Quint7

 
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Posted 12 January 2011 - 09:44 AM

Thanks Berta. Yep Buffalo is Buffalo. I talked to my rep there (who has finally agreed that my rep here does nothing so he is willing to talk directly instead of saying "call your rep in Rochester) and he used those words about his conversations with the DRO. I brought up that VARO has to have someone that can approve it and he said everyone there wants a judge to decide it. Ugh. He did say he would submit a request for a "statement of the case" which should list all reasons for/against in it and should be useful during the travel board. That is supposed to take less than a month he said.
I listened to Tammy Duckworth on NPR a week or two ago and she is so disconnected with reality it is sad. And I say that not as a knock against her, but she said flat out that VA changed to always give vets the benefit of the doubt or as she said the baserunner gets the call when there is a tie just like in baseball. Sure........

#11 carlie

 
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Posted 12 January 2011 - 09:53 AM

The BOD is only for application when the evidence is in relative equipoise.

#12 Berta

 
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Posted 12 January 2011 - 10:10 AM

Maybe they will commit a CUE in the SOC.

The dream of my life is to get the VAOIG into Buffalo VARO.

#13 retiredat44

 
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Posted 12 January 2011 - 10:49 AM

Thanks Berta. Yep Buffalo is Buffalo. I talked to my rep there (who has finally agreed that my rep here does nothing so he is willing to talk directly instead of saying "call your rep in Rochester) and he used those words about his conversations with the DRO. I brought up that VARO has to have someone that can approve it and he said everyone there wants a judge to decide it. Ugh. He did say he would submit a request for a "statement of the case" which should list all reasons for/against in it and should be useful during the travel board. That is supposed to take less than a month he said.
I listened to Tammy Duckworth on NPR a week or two ago and she is so disconnected with reality it is sad. And I say that not as a knock against her, but she said flat out that VA changed to always give vets the benefit of the doubt or as she said the baserunner gets the call when there is a tie just like in baseball. Sure........



how and who could prove that any rule of doubt was applied correctly? rhetorical...

#14 carlie

 
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Posted 12 January 2011 - 10:56 AM

how and who could prove that any rule of doubt was applied correctly? rhetorical...


retired,
Actually when reviewing all the evidence of record it would be quite
easy to prove. It could be done by a VSR,VSO,DRO,Judge etc....

#15 Quint7

 
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Posted 12 January 2011 - 01:12 PM

Carlos, my evidence is tipped my way by well over half. My claim involves failure to notify me of decisions, failure to notify me of exams, failure of VA employees to follow their own rules about these notifications, etc.
My rep made it pretty clear that it comes down to nobody at the VARO being willing to put their own ne k on the line when "a judge can make that ruling". I even included the recent Fast Letter about how VA employees are denying claims due to failure to appear when the reason the vet was a no show was because VA screwed up. That massive document (it was some 50+ pages) states in it that VAROs can and should correct these.
VAs biggest problem is that they don't follow their own rules or guidelines. But everyone here knows that already.

#16 Quint7

 
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Posted 12 January 2011 - 01:13 PM

Sorry Carlie, my stupid new phone has auto correct and seems to think Carlos is what I meant.

#17 carlie

 
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Posted 12 January 2011 - 01:42 PM

Today I am still waiting on an EED claim from 1994 and even though the last DRO said I tried to do everything right and VA dropped the ball multiple times (I wont bore anyone with details)


Quint,
It may have been just lip service because if the DRO truly felt this way, the DRO has fully authority to grant what ever was in question
and that would have been the end of it right then and there.

#18 carlie

 
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Posted 12 January 2011 - 01:44 PM

Carlos, my evidence is tipped my way by well over half. My claim involves failure to notify me of decisions, failure to notify me of exams, failure of VA employees to follow their own rules about these notifications, etc.
My rep made it pretty clear that it comes down to nobody at the VARO being willing to put their own ne k on the line when "a judge can make that ruling". I even included the recent Fast Letter about how VA employees are denying claims due to failure to appear when the reason the vet was a no show was because VA screwed up. That massive document (it was some 50+ pages) states in it that VAROs can and should correct these.
VAs biggest problem is that they don't follow their own rules or guidelines. But everyone here knows that already.


This seems more like due process and duty to assist issues versus relative equipoise
and benefit of the doubt.

#19 mrp

 
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Posted 12 January 2011 - 01:45 PM

shouldn't this benefit of doubt rule apply when the C+P examiner states that a condition is :
at least as likely as not due to service -connection.
I had a claim denied despite this , now long wait for BVA.



#20 carlie

 
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Posted 12 January 2011 - 01:53 PM

shouldn't this benefit of doubt rule apply when the C+P examiner states that a condition is :
at least as likely as not due to service -connection.
I had a claim denied despite this , now long wait for BVA.


mrp,
Start a new topic with your question in the Claims Benefits Forum.
Post the exact wording from the Reasons and Bases Section for the denial.

But to answer your question - no that alone does even begin to put the
evidence of record into relative equipoise - which is REQUIRED in order
for the application of the BOD.

#21 GuaymasJim

 
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Posted 12 January 2011 - 09:45 PM

I believe that we often lose sight of the actual wording of 38 U.S.C 5107, which includes:

"When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." (My emphasis)

BOD doesn't just come into play at the end when a claim is award or denied; it is also supposed to be applied during all of the smaller decisions on individual pieces of evidence a rater makes leading up to the award or denial of a claim. The operative word is "any."

The ultimate award or denial of a claim is based on all of those individual smaller decisions. If the veteran was not afforded BOD on the preliminary decisions during adjudication, the veteran's evidence may never be viewed as being balanced between positive and negative when it actually is.

It almost goes without saying that if, as we see so often here on hadit, the veteran's evidence is completely ignored, then the veteran has suffered two distinct violations of the due process rights contained in 5107.

I agree wholeheartedly with Berta, Carlie, and others that the new PTSD regulations violate veterans' rights to due process. Hopefully, the court will agree.


#22 Berta

 
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Posted 13 January 2011 - 07:22 AM

"shouldn't this benefit of doubt rule apply when the C+P examiner states that a condition is :
at least as likely as not due to service -connection.
I had a claim denied despite this , now long wait for BVA."

MRP - can you scan and post the denial and attach here (cover Personal info)as to their Reasons and Bases?

Although the C & P doc said the magic words- as Carlie said-there is usually more to it then that- was it a question of no stressor verification?
Did the VA have medical records that contradicted the C & P findings?

#23 mrp

 
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Posted 13 January 2011 - 09:51 AM

thanks for you time to try to help me.
I will need some assistance to try to scan.

They posted the words of the C+P examiner which seemed supportive to me, especially since the issue seemed to be a medical opinion--
but denied by stating that my condition was "diagnosed" and not "undiagnosed illnesses" which would
qualify as presumptive due to Gulf War. I have Neuropathy which is Idiopathic ( that is , no known cause despite extensive testing).
I had a VA neurologist state that it could be due to exposure in Gulf War, and also had the statement from the C+P examiner -at least as likely as not.
I feel that the rater was making a medical opinion which was counter to the examiner.

#24 Berta

 
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Posted 13 January 2011 - 10:19 AM

We have a lot of info here in the GWV forum.

It has to be a "qualifying chronic disability" to include undiagnosed illnesses.

Did a rep help you ? Didn't the rep present the claim right?

We did some SVR shows available here too as to GWV claims.

And there is I believe a recent fast letter on them.

VA does not recognize Gulf War Syndrome as a disability it itself- what they recognize as GW illnesses can be confusing.

It pays to read over the regs very carefully to make sure the claim fits into their criteria.

#25 mrp

 
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Posted 13 January 2011 - 10:47 AM

I did use a rep ( state VSO). I have learned alot reading the GWV forum as well as the others.
The VSO said to me, and in writing in the appeal, that they just didn't understand why it was denied.
I believe that the raters were confused about the GWI criteria. I even used a copy of the recent Training Letter ( 10-01)
to show that I met criteria, since this seemed to clarify what they missed the first time. It really came down to a medical opinion,
and it just seems that the medical opinion was completely ignored. It is now pending BVA. I suspect it will prevail , but someday in the far away future.

#26 broncovet

 
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Posted 13 January 2011 - 10:52 AM

The regulations contradict each other. As was pointed out, the regulations state the BOD is applied on "ANY" material issue, but, this is contradicted, because, for, example, BOD does not apply to CUE, and it also does not apply to establish eligibility. There, a much higher standard applies, "preponderance of evidence". In Cue, there is no "benefit of the doubt" but, instead, it has to be "undebateable".
As a result, the VA can often justify their decision either way.

On a more practical matter, however, there is a clear cut "pecking order" in the VA as there was in the military. We called it a "chain of command". There is not much doubt in my mind that "lower level" rating specialists do not want to "stick their neck out" and approve a large retro. Remember a large retro is essentially an admission of error. Why else could it possibly take, say, 10 years to process a claim (for a large retro)? There HAD to be errors or it would have been approved years ago.

So, does a rookie rating specialist want to risk his job by approving a large retro, when one of his peers has already denied it earlier? I dont think so. Even if they are a senior DRO rater, they are unlikely to "go against" their peers to approve a large retro that one of the others has already denied. For this reason, I think it is probably productive to "skip" the DRO review in large retros, and instead send it "uphill" to the BVA judge. The BVA judge has the undisputed authority to overturn DRO and rating specialists, and will do so if he feel it is justified.
Of course, the "hampster wheel" remand at the BVA creates a problem, where the BVA judge remands it to the RO, the ro denies, the Veteran appeals, the BVA remands it again, etc. The only way to get it off that hampster wheel is to:
1. Appeal the BVA remand and send it to the CAVC.
2. Try to make your claim "remand proof". This will take lots of preperation and research. You will have to find out what instances are remanded, find out which ones are not, and not leave your claim to chance about remand.