Was "reasonable Doubt" Specifically Addressed In Your Decision?

[tssnave]

I have been reading through the great book that Betrayed suggested we get (The Veteran's Survival Guide: How to File and Collect on VA Claims, Second Edition (Paperback) by John D. Roche) and it states that there should be a statement that the VA looked the claim over under the doctrine of reasonable doubt.

I just checked my Decision and nowhere in there is anything about Reasonable Doubt.

For those of you who have a Decision (or multiple Decisions), please check them and tell me if there is a sentence in them that addresses Reasonable Doubt in any way and if so, please post the exact wording used in your Decision regarding Reasonable Doubt.

Thanks,

TS Snave

[cowgirl]

Tss, I will scan my Decisions; but wonder a couple of things. WHEN did Reasonable Doubt become necessary as part of decision, law and date? WHAT are the ramifications the book identifies? Cliffhanger here wanting to know how 'reasonable doubt' ends (or begins again?) smile, cg

I have been reading through the great book that Betrayed suggested we get (The Veteran's Survival Guide: How to File and Collect on VA Claims, Second Edition (Paperback) by John D. Roche) and it states that there should be a statement that the VA looked the claim over under the doctrine of reasonable doubt.

I just checked my Decision and nowhere in there is anything about Reasonable Doubt.

For those of you who have a Decision (or multiple Decisions), please check them and tell me if there is a sentence in them that addresses Reasonable Doubt in any way and if so, please post the exact wording used in your Decision regarding Reasonable Doubt.

Thanks,

TS Snave

[tssnave]

John - I assume by your "one particular situation" comment where BoD is applied you meant when the evidence is in equipose. If this is not correct, please clarify and include a link to the other threads you are referring to.

Cowgirl/John - I am quoting, for critical article and review purposes, out of Chapter 13 Doctrine of Reasonable Doubt in "The Veteran's Survival Guide: How to File and Collect on VA Claims" Second Edition (2006) by John D. Roche. This is the information that prompted me to write this thread because reasonable doubt was not mentioned in my first Decision which denied service connection nor was it mentioned in my second Decision which granted 50%. I have submitted a NOD on the 50% requesting 100% IU P&T and am interested in anything that I can use to help my claim (and I-9 if it comes to that) since the VA seems intent on ignoring the evidence, to include the very favorable comments from the C&P exam.

Chapter 13 Doctrine of Reasonable Doubt

paragraph 1 -"The last statement added to every rating decision by the rating board is a certification that the Doctrine of Reasonable Doubt was considered in deciding the issues of the claim. This is without a doubt one of the most important concepts written into the law governing veterans benefits. Failure of a rating board to correctly apply this provision of the law when rating a claim is grounds for remand or reversal on appeal. A claimant or advocate needs to understand this concept to ensure that benefits justified are benefits granted.

paragraph 4 - "........It must explain exactly what evidence tipped the scales against the claim. It cannot simply say, "Granting of the benefits sought due to resonable doubt under 38 CFR $3.102 was considered, but the rating board concluded that the fair preponderance of the evidence was not in the veteran's favor and the rule had no application" If your claim is denied and the only reference to the Doctrine of REasonable Doubt is ambiguous, appeal the denial. the law requires the VA to give detailed reasons and bases for any action it takes."

I have not read the entire chapter or book so I may not be fully understanding this which is part of why I started the thread. So far I have really enjoyed reading this book and have ordered his next one about VA appeals (which is where I am in my claim). The author was a military pilot, VA rater, and then VA VSO advocate (with the hightest win rate in his area) so he's got credibility. Plus, because Betrayed recommended the author I was interested in reading it. Betrayed fought long and hard to get his claim properly adjudicated and I respect his suggestions. He recently suggested having your spouse send in statements and quoted this book. Several other members wrote to say spouse statements helped their claim so I wanted to get the book that he referenced.

Plus, it is because of hadit and reading Berta's posts that I have come to understand and appreciate how important VCAA letters are which I didn't know before I came onboard here and I wondered if perhaps this wasn't something along that lines - an important part of claims processing that I simply wasn't aware of.

John - if hadit has covered this before (and it could have been before I joined or during my frequent times of being too depressed to be on the board and then too overwhelmed to fully read all the back posts from my absence) please post a link to those threads. I am especially interested in how VAROs around the country have addressed this Doctrine of Reasonable Doubt in their Decisions.

Cowgirl - as always, good luck with your claim. I'm right there with ya.

Everyone - Comments, ideas, suggestions? I'm still hoping someone will post what their Decision stated about Doctrine of Reasonable Doubt so I can see what the VA is actually doing about this.

Thanks,

TS Snave

Edited November 7, 2007 by tssnave

[cloudcroft]

tssnave,

1. Yes, you are correct: The evidence must be in a state "of relative equipoise" before the "Benefit of Doubt" rule can be applied. If there is NO MENTION of this rule of BoD being applied in your decision letter, then it wasn't...because it WOULD have been stated (at least the BVA would state it but perhaps the VARO is not as thorough, I don't know). But anyway, if it wasn't mentioned, the preponderance of the evidence must have been either for you (if you won) or against you (if you lost)...there was no balance of evidence existing and so BoD does not apply.

If you think the evidence WAS/IS balanced -- neither tilting one way or the other -- then put together a rebuttal explaining why...unless you believe the evidence tilts in your favor. In that case, you can't ask/argue that BoD applies because it doesn't.

2. I don't have the links, they need to looked up.

3. It might be more productive researching BVA cases for such keywords as "reasonable doubt" and "benefit of doubt" instead of looking up VARO decisions...IF you even can find them. Searching CVA cases for those keywords would be the best as they are legal precedent, whereas BVA cases are not (but BVA cases are still VERY useful).

Good luck,

-- John D.

Edited November 8, 2007 by cloudcroft

[Berta]

You guys are correct-

the Benefit of doubt (called Reasonable doubt sometimes)is only invoked when the evidence is in Relative Equipoise.

This is why a veteran who gets an opinion from some C & P doctor or so-called VA expert-that goes against their claim must take action in the NOD to combat the negatives with positives.

Unfortunately things have changed so much within the VA these days that it often takes an independent medical opinion-from a real doctor to do this because the VA seems to disregard any veteran's medical statements that are based on fact.

Also the VA owns the scale of Justice that they use to weigh evidence-

and I think they kick Blind Justice in the knee sometimes to make sure the scale tips in their favor.

Still- many vets succeed under the BOD regs:

http://www.va.gov/vetapp07/files1/0704418.txt

This vet could not support in increase for his initial PTSD rating but did succeed in getting a better EED for his March 2003 rating:

"Resolving the benefit of doubt in the veteran's favor, the

Board finds that the veteran's PTSD, prior to March 24, 2003,

warrants a 50 percent disability rating under Diagnostic Code

9411 and no more.

As the preponderance of the evidence is against the veteran's

claim for an initial rating in excess of 50 percent, the

"benefit-of-the-doubt" rule is not applicable, and the Board

must deny the claim. See 38 U.S.C.A. § 5107(:D; Gilbert,

supra."

In the first situation- the evidence was equally for and against- so he succeeded in BOD-

but the preponderance of evidence was against a claim for higher rating

of the initial award.

If the VA fails to consider ALL of your evidence and fails to apply BOD regs- they have committed a prejudicial error.(Caffrey V Brown, Gilbert V Derwinski)

The veteran-or widow -in my opinion- (been there done that) has to continually fight them via a Reconsideration request, or the NOD and resubmit the evidence they have ignored- citing all of the evidentiary regs within 38 CFR and M21-1.

I saw a case at the BVA last year that just overwhelmed me-

The VARO- had ignored not one but FOUR probative independent medical opinions in the veterans file -in support of the claim.

Of course the BVA awarded the claim.

But this is unconscionable.And it shows that -if the VARO ignores your medical evidence- you can wait it out until the BVA sees it or keep hammering the RO with it until they finally read it.