If you spend any time reading VA case law you’ll come across the phrase less likely, more likely than not and so on. In the VA Clinicians Guide for Disability Examination it lays out how these are weighted.
Independent Medical Opinions by Your Private Physician
An Independent Medical Opinion (IMO) from a treating physician is in many instances a critical part of a veteran’s disability compensation claim. An IMO may sway the “benefit of the doubt” in favor of a veteran’s claim, or it may actually be the missing ‘link’ or nexus in a claim. When a veteran asks his or her physician to compose an IMO, there are a couple of things that should be noted in it. One of most important things that should be done and mentioned in the IMO is that the medical professional has reviewed the entire medical record including the veteran’s SMR’s. The medical professional should also state his or her area of expertise and additional training. For example, if the doctor is board certified in radiology, they should state that; especially when rending any comments in regards to radiological film studies. Also, it is very important that the physician give their rational as to why they have come to a certain conclusion. The physician, when giving his/her rational, should also cite any relevant medical literature that may support the findings. By doing all of this, the IMO becomes probative. There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”
- “is due to” (100% sure)
- “more likely than not” (greater than 50%)
- “at least as likely as not” (equal to or greater than 50%)
- “not at least as likely as not” (less than 50%)
- “is not due to” (0%)
The phrase “at least as likely as not” is the legal phrase that is needed for VA to award service-connection for a particular disability based on the “Benefit of the Doubt” when an IMO should be the deciding factor in the evidence of record.
Note: You shouldn’t send your regional office any medical articles printed from the internet. They only pertain to the general population and aren’t afforded very much weight when they are being evaluated by the decision maker. The VA needs something from a doctor that states your disability(ies) are related to your service, not something meant for the general public.
Reasonable Doubt Rule
The Reasonable Doubt rule is one of the most important liberalizing rules that VA uses to grant veterans benefits and is defined under 38 CFR, §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, that the claimant be awarded there claim. This is just like in baseball as the “tie goes to the runner.” Keep in mind this doesn’t mean that just because there is ten pieces of evidence for your claim and 10 against that you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence and in their judgment there is an equal balance, then they must resolve reasonable doubt in the claimants favor. It also doesn’t mean that if, for example, there is 5 pieces of evidence in favor of a claim and only one against, that a claim will automatically be granted because there is a preponderance of evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.
Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.