The Benefit Of Doubt

[Ruffcreek]

Hello and thanks to everyone who have answered my questions in the past.

I have filed a claim, went to the VA for the C & P exam, got a letter stating "at least as likely as not" from my specialist and one from my private Dr.

I am now writing my own statement to sent to the VARO along with the letters from the above doctors. I am hoping I get a favorable rating right off but of course I may not.

My question is: In my statement shall I refer to the "Benefit of Doubt Doctrine" or will they apply it automatically IF my claim is in a state of equipoise? Also if I should use it, what would be the correct wording?

Thanks,

Ruffcreek

[Ruffcreek]

Sorry I didn't make it clear but my Pulmonary Specialist who is also Board Certified in Internal Medicine, Pulmonary Medicine and Critical Care Medicine gave me the letter stating "at least as likely as not".

My private doctor also will give me a letter stating the same.

Berta--I am unemployed and have not formally applied for TDIU? Is this something I should do?

Thanks everyone for your responses!!

Ruffcreek

[john999]

Larry

You can beat them but you have to be persistent. Put them in your sights and keep your eye on the ball until you get P&T. Even after that keep documenting your claim every chance you get.

[kluender]

I have the same question as Ruffcreek(hope you don't mind Ruffcreek). I have an appeal that is currently awaiting review of medical records by the DRO. My C&P report states "at least as likely as not" just as Ruffcreek's does. Also, the examiner wrote a very thorough and favorable report stating that my disabilities are service connected. Is this report enough are do you think I should have had another exam by a private doctor?

[Ricky]

I have the same question as Ruffcreek(hope you don't mind Ruffcreek). I have an appeal that is currently awaiting review of medical records by the DRO. My C&P report states "at least as likely as not" just as Ruffcreek's does. Also, the examiner wrote a very thorough and favorable report stating that my disabilities are service connected. Is this report enough are do you think I should have had another exam by a private doctor?

In the cases provided by you and Ruff, it appears that this is all the evidence in support of the claim. If this is correct then the Relative Equipoise (benefit of the doubt) as Berta has provided does not exist for all evidence in support of the claim is favorable. The only time the benefit of the doubt comes into play is when there is a balance of evidence in support of and against a claim. In this situation the benefit of the doubt comes into play and the veteran is supposed to win all such claims.

Now - when such a claim is in front of the VA (RO level) it is to the veterans advantage to remind the VA of this law. Although the VA at all levels is supposed to automatically apply this law we all know that 99 percent of the time raters and DRO's do not comply with this and will deny your claim if there is even a hint of negative evidence available. You must also keep in mind what the term Relative Equipoise means. It does not mean the VA has two pieces of negative evidence and the veteran has two pieces of positive evidence. Relative Equipoise in VA terms (or legal terms) does not mean 2+2=4. It comes down to the weight that is applied to the evidence. This is where the problems begin and the system is fouled. The rater, a lay person just as you or I, is afforded the power to assign the weight to be applied to each piece of evidence. He/she can say that a 7 min visit with a 1 year resident or worse a 1st year Nurse Practioner far out weighs the IMO submitted by your 35 year board certified neuro doc and that is that - at least until you get to the BVA where common sense and law is actually used.

Bottom line to all of my ranting is that if you know the VA has negative evidence or evidence that could be considered negative then yes at the rater/DRO level I would remind them of the benefit of the doubt (more so with a DRO than a rater). However, don't let it blow your mind if you get back a decision that says benefit of the doubt does not apply. Just let it go and use a very strongly worded argument at the BVA level. The difference between the RO and the BVA is that at the BVA, the hearing officer is an attorney who is backed by a slew of support attorneys. These guys, good or bad, eat, breath and drink the law daily. The VA disability system is based upon law so it is right down their alley. Where as at the RO level you are stuck with lay people who are no better than you or I, however, they feel as though they are some kind of famous doclaws (doctors and lawyers combined).

Edited February 13, 2008 by Ricky

[kluender]

In the cases provided by you and Ruff, it appears that this is all the evidence in support of the claim. If this is correct then the Relative Equipoise (benefit of the doubt) as Berta has provided does not exist for all evidence in support of the claim is favorable. The only time the benefit of the doubt comes into play is when there is a balance of evidence in support of and against a claim. In this situation the benefit of the doubt comes into play and the veteran is supposed to win all such claims.

Now - when such a claim is in front of the VA (RO level) it is to the veterans advantage to remind the VA of this law. Although the VA at all levels is supposed to automatically apply this law we all know that 99 percent of the time raters and DRO's do not comply with this and will deny your claim if there is even a hint of negative evidence available. You must also keep in mind what the term Relative Equipoise means. It does not mean the VA has two pieces of negative evidence and the veteran has two pieces of positive evidence. Relative Equipoise in VA terms (or legal terms) does not mean 2+2=4. It comes down to the weight that is applied to the evidence. This is where the problems begin and the system is fouled. The rater, a lay person just as you or I, is afforded the power to assign the weight to be applied to each piece of evidence. He/she can say that a 7 min visit with a 1 year resident or worse a 1st year Nurse Practioner far out weighs the IMO submitted by your 35 year board certified neuro doc and that is that - at least until you get to the BVA where common sense and law is actually used.

Bottom line to all of my ranting is that if you know the VA has negative evidence or evidence that could be considered negative then yes at the rater/DRO level I would remind them of the benefit of the doubt (more so with a DRO than a rater). However, don't let it blow your mind if you get back a decision that says benefit of the doubt does not apply. Just let it go and use a very strongly worded argument at the BVA level. The difference between the RO and the BVA is that at the BVA, the hearing officer is an attorney who is backed by a slew of support attorneys. These guys, good or bad, eat, breath and drink the law daily. The VA disability system is based upon law so it is right down their alley. Where as at the RO level you are stuck with lay people who are no better than you or I, however, they feel as though they are some kind of famous doclaws (doctors and lawyers combined).

[kluender]

Thanks for clearing this up Ricky.

In the cases provided by you and Ruff, it appears that this is all the evidence in support of the claim. If this is correct then the Relative Equipoise (benefit of the doubt) as Berta has provided does not exist for all evidence in support of the claim is favorable. The only time the benefit of the doubt comes into play is when there is a balance of evidence in support of and against a claim. In this situation the benefit of the doubt comes into play and the veteran is supposed to win all such claims.

Now - when such a claim is in front of the VA (RO level) it is to the veterans advantage to remind the VA of this law. Although the VA at all levels is supposed to automatically apply this law we all know that 99 percent of the time raters and DRO's do not comply with this and will deny your claim if there is even a hint of negative evidence available. You must also keep in mind what the term Relative Equipoise means. It does not mean the VA has two pieces of negative evidence and the veteran has two pieces of positive evidence. Relative Equipoise in VA terms (or legal terms) does not mean 2+2=4. It comes down to the weight that is applied to the evidence. This is where the problems begin and the system is fouled. The rater, a lay person just as you or I, is afforded the power to assign the weight to be applied to each piece of evidence. He/she can say that a 7 min visit with a 1 year resident or worse a 1st year Nurse Practioner far out weighs the IMO submitted by your 35 year board certified neuro doc and that is that - at least until you get to the BVA where common sense and law is actually used.

Bottom line to all of my ranting is that if you know the VA has negative evidence or evidence that could be considered negative then yes at the rater/DRO level I would remind them of the benefit of the doubt (more so with a DRO than a rater). However, don't let it blow your mind if you get back a decision that says benefit of the doubt does not apply. Just let it go and use a very strongly worded argument at the BVA level. The difference between the RO and the BVA is that at the BVA, the hearing officer is an attorney who is backed by a slew of support attorneys. These guys, good or bad, eat, breath and drink the law daily. The VA disability system is based upon law so it is right down their alley. Where as at the RO level you are stuck with lay people who are no better than you or I, however, they feel as though they are some kind of famous doclaws (doctors and lawyers combined).