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

[Berta]

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

You bet!

It would help to attach to the 21-8940 TDIU form those statements from your docs as to the "at least as likely than not".

Ricky-that was an EXCELLENT explanation of Relative Equipoise-

My former rep said he was sure he would walk out of a DRO conference with an award for me under Relative Equipoise-

I had 2 IMos and the VA had one-

my main IMO considered ALL med recs-the VA IMO mention 3 or 4

My IMO stated with med citations that there was no other etiology but for SC condition

the VA IMO did not even address this issue

etc etc

But the rep never even gave this IMO to the doc- it completely disappeared-I still dont know if they have it- I re sent it many many times with another IMO too-

The VA said I did not raise to the level of Relative Equipoise as I had not presented any evidence in my favor nor did my POA.

SO Make SURE that the VA not only acknowledges these good med ops you have but also fully considers them.

I recently wrote to VA since this claim is in ratings again from the DRO that-if my 3 IMOS are again missing- just call the General COunsel and ask for Mr. XXXXX and he can fax them copies.

Ruffcreek I would certainly mention Relative Equipoise and 38 4.3 and 4.6 and the art of M21-1 that I have posted here many times before-

the evidence is "weighed" as Ricky said in many ways-

the docs credentials and expertise support their medical rationale-which they have to state fully-in an opinion-

My second IMO from Dr BAsh (I had a ridiculous VA op to go against by this time) started off by his stating that the medical opinion in my recent SSOC was "medically inaccurate"

and then he told them why-

and the 4th IMO I expect soon also supports my claim-

but if the VA or the MF (Mysterious force) keeps s--t canning them(my POAs cant anymore)then I cannot get RE or BOD.

I hope and do not foresee that you wont have these problems.

My problems started here when the VA said I didnt respond to the VCAA election Notice- (which they never sent to me so how could I respond)

I certainly responded without it-but it is the election notice that triggers them to actually read the evidence.

Dont forget all 2 PM this might be an issue addressed at this hearing today at the H VAC subcommittee on claims-

if not I will just keep on hammering a way until they fix the VCAA.

[Ricky]

Please also keep in mind that if they discount your evidence in favor of theirs they MUST explain why in the reasons and basis. Most of the time they do not but it is law.