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Benefit Of The Doubt Rule Must Be Applied


carlie
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38 U.S.C.A. § 5107(b).

Section 5107(b) expressly provides that the benefit of the doubt rule must be applied to a claim when the evidence submitted in support of the claim is in relative equipoise. The evidence is in relative equipoise when there is an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. When the evidence is in relative equipoise, the reasonable doubt rule must be applied to the claim, and thus, the claim must be resolved in favor of the claimant. See Massey v. Brown, 7 Vet. App. 204, 206-207 (1994); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

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This regulation is the essence of the claims process.It is a Basic right as well as a regulation.

It always bears repeating how this works.

The evidence for the claim does not have to be overwhelming or in a "preponderance" in VA lingo--just enough to weigh the scales equally.

But VA owns the scale.

This is why the new PTSD regs have been challenged by a CAVC petition by numerous lawyers-

the new PTSD regs prohibit an independent medical opinion to support a PTSD diagnosis.

Any veteran coming under the new PTSD rules ,who VA will NOT diagnose with PTSD, is left without the ability to use this basic tenet of VA case law- 38 USC 5107 (b) in order to provide an IMO.

Thanks Carlie -this is important for all newbies to read and it goes for widows /widowers claims too.

Most claims are awarded under principles of Relative Equipoise.

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  • HadIt.com Elder

This regulation is the essence of the claims process.It is a Basic right as well as a regulation.

It always bears repeating how this works.

The evidence for the claim does not have to be overwhelming or in a "preponderance" in VA lingo--just enough to weigh the scales equally.

But VA owns the scale.

This is why the new PTSD regs have been challenged by a CAVC petition by numerous lawyers-

the new PTSD regs prohibit an independent medical opinion to support a PTSD diagnosis.

Any veteran coming under the new PTSD rules ,who VA will NOT diagnose with PTSD, is left without the ability to use this basic tenet of VA case law- 38 USC 5107 (b) in order to provide an IMO.

Thanks Carlie -this is important for all newbies to read and it goes for widows /widowers claims too.

Most claims are awarded under principles of Relative Equipoise.

Berta,

The VA has no problem diagnosing my PTSD, they just don't want to pay for it. If the CAVC judge finds in my favor, it may overturn the roadblocks for a lot of vets.

Mike

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"The VA has no problem diagnosing my PTSD, they just don't want to pay for it. If the CAVC judge finds in my favor, it may overturn the roadblocks for a lot of vets."

Have they questioned your stressor???

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I checked out your older posts Mike:

Posted 09 December 2008 - 02:37 PM

"Update, I sent got a copy of the JSRRC Verification of stressors that was sent to the VA. It only half verifies what was requested. The other parts they tell the VA that I need to provide the information.

So today I sent express mail/Certified a package to the AMC with everything and a cover letter explaining what it was. Hopefully they add it to the rest. I have included Military orders, copies of pictures, copies of LES's, copies of Medals statements,copies of certificates, Letters from Senior Officers, and write ups, copies of the manifest that were used for the medals. Just for fun I added my own research including a copy of the court records of an officer that was court martialed that explains the situation, as well as expedia, and other assorted articles. I hope they at least look at it. My situation was unorthodox, but well documented on my end."

Obviously you did a lot of leg work.

Has the VA acknowledged in any way that they have these documents?

The bad thing about the CAVC is that they do not consider new evidence and focus on what VA has in the record and they primarily look for any legal errors on BVA's part that were detrimental to the claim.

However if you have a lawyer who will fight for a joint remand this can open the door for new evidence or for old evidence they have still failed to acknowledge.

When VA diagnosed your PTSD what did they attribute it to-with full medical rationale if not the stressor you claimed?

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The VA's interpretation of the "benefit of the doubt" regulation:

They "Doubt" the Veteran is going to get any "benefits".

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I checked out your older posts Mike:

Posted 09 December 2008 - 02:37 PM

"Update, I sent got a copy of the JSRRC Verification of stressors that was sent to the VA. It only half verifies what was requested. The other parts they tell the VA that I need to provide the information.

So today I sent express mail/Certified a package to the AMC with everything and a cover letter explaining what it was. Hopefully they add it to the rest. I have included Military orders, copies of pictures, copies of LES's, copies of Medals statements,copies of certificates, Letters from Senior Officers, and write ups, copies of the manifest that were used for the medals. Just for fun I added my own research including a copy of the court records of an officer that was court martialed that explains the situation, as well as expedia, and other assorted articles. I hope they at least look at it. My situation was unorthodox, but well documented on my end."

Obviously you did a lot of leg work.

Has the VA acknowledged in any way that they have these documents?

The bad thing about the CAVC is that they do not consider new evidence and focus on what VA has in the record and they primarily look for any legal errors on BVA's part that were detrimental to the claim.

However if you have a lawyer who will fight for a joint remand this can open the door for new evidence or for old evidence they have still failed to acknowledge.

When VA diagnosed your PTSD what did they attribute it to-with full medical rationale if not the stressor you claimed?

I have a lawyer. He gets very angry with the VA and I have had to talk him down a couple of times. (The Meds are working) The VA diagnosed me with PTSD and the answer kept coming back that they cannot prove my stressors. This package is everything they have. They conveniently ignore a lot of my evidence. The Doctor was very concerned that I seek help and pronto, the VA docs have no doubt and at the time gave me a GAF of 45, which I am not proud of. Some of the stuff I have dealt with is still Classified TS, so I really cannot discuss them with anyone. I had one psychologist that dropped me as a client as my "issues" were giving him nightmares. So even talking about the things I can discuss is rather futile. I am with Chisholm, Chisholm, and Kilpatrick. So far they have been most helpful. In fact much of my case is based on what I have written to the VA. If it was not for the Meds I am pretty sure I would not be working right now, but I doubt that not having something to occupy my time would be of much help to me. I don't care if they give me a 0% rating on this. I just want them to admit it.

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