Va Must Consider All Evidence

[broncovet]

I am including the regulations requiring the VA consider all evidence, to cite, if necessary to win your claim. This would apply to "shredded evidence", because, if evidence were shredded, then the VA would not consider it. This is from Nova vs VA Secretary decided May, 2003

We conclude that § 3.304(f) does not conflict with 38 U.S.C. § 5107( . Section 5107( ;) , entitled "Claimant responsibility; benefit of the doubt," provides:

( :o Benefit of the Doubt.—The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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.

38 U.S.C. § 5107( :P (emphasis added). Section 5107( :D provides that the VA must consider all information and lay and medical evidence of record in adjudicating a claim for veterans benefits and that "[w]hen 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." Id.; see 38 C.F.R. § 3.102 (2002) ("The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions . . . .").

Edited November 9, 2009 by broncovet

[carlie]

To anyone researching "Benefit of Doubt".

Please remember that there are many, many situations when

"lay" evidence won't be considered one little bit.

Example: Lay evidence

My wife wrote the VA a letter stating that ever since I felt I

had broken my toe in AIT - I have walked with an abnormal gait.

This Lay evidence,on it's own, more likely than not, will not be

afforded any consideration in the rating decision.

In some situations,there is specific medical evidence,

that will not be afforded any consideration as evidence, in the rating decision.

Example: Medical evidence

My new PCP wrote in a progress note, that I have a Hearing Loss

and bilateral Tinnitus that is related to noise exposure and acoustic trauma

from active duty.

This Medical evidence, on it's own, more likely than not, will not be

afforded any consideration in the rating decision.

It should be enough to help get you a C&P examination from Audiology.

I feel the most important factor to be considered, for the VBA

to apply the Benefit of the Doubt reg is that the evidence must

reach a state of relative equipoise.

If this occurs, then the benefit of the doubt rule should be applied.

It is important to study what type of information and from whom,

will actually even be considered as legitimate evidence that will be

afforded some weight by the VBA.

I have seen some VA claimant's work hard on obtaining evidence that in the end,

when it got to the decision maker, did not even begin to count as probable

or credible evidence, and did not have any weight afforded to it during the rating

process.

jmho,

carlie

[Vync]

Bronchovet,

Check out the claim that was awarded in my topic. You'll really find it interesting because there is practically no evidence of a problem at all, but the SC was granted based on benefit of the doubt.

[john999]

I filed a claim for TMJ. My service records were "silent" on the subject. I did not get the benefit of doubt since there was no evidence to say I did or did not have TMJ. Should I have been awared SC for this? I think so because the army dentist falsified my records, but I can't prove that 40 years later.

[jbasser]

Too often is the value of evidence tipped on the favor of the VA in order to deny a claim. Dr Shopping is common place when looking for negative opinions. That is why there are leading questions from the VA to the C and P examiners.

This hapopens every day.

J

[Vync]

I filed a claim for TMJ. My service records were "silent" on the subject. I did not get the benefit of doubt since there was no evidence to say I did or did not have TMJ. Should I have been awared SC for this? I think so because the army dentist falsified my records, but I can't prove that 40 years later.

John,

My Army records never said I had TMJ. I'm SC for TMJ, but getting it was not a walk in the park. It took about five years to get it, but did not have an IMO either. I only had about three service medical record entries for it, which were related to when the Army removed my wisdom teeth and the severe pain and swelling afterwards. Apparently, they dislocated my jaw during the surgery.

The VA sent me their initial rubber-stamp denial. I appealed. C&P said I was normal. Denied. Appealed. Went before the board in Montgomery. Asked for another C&P because I was on medication during the first C&P. Granted second C&P. For two weeks prior, I was off my pain/inflammation meds. Head felt like it was in a vice. Had second C&P. They also did an arthogram (x-ray where they inject contrast into the joint) and a CAT scan. My TMJ cartlage was completely dislodged. SC granted.

I have limited range of motion and am actually thinking of filing for an increase because my range of motion has decreased quite a bit over the past few years.

Btw... how did the Army dentist falsify your dental records?

[john999]

The army dentist falisifed my record by not entering a DX in my record. He told me I had TMJ, but that is was incurable. He said they would have to put bolts in my jaw and I would look like Frankenstein. In the record he only wrote "examination". He lied to me because he knew I was on a levy for Vietnam. Treatment would have delayed me getting to Nam on time. I was 19 and believed that doctors would not lie. How wrong could I be?