Benefit Of The Doubt Rule Must Be Applied

[carlie]

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).

[Quint7]

Every time I read about giving us the benefit of the doubt I laugh.

I was one of the PTSD vets who had to be humiliated by going through every detail I could remember about my combat time to "verify" I was there. Pictures, awards, medals etc. weren't good enough just a couple of years ago.

Today I am still waiting on an EED claim from 1994 and even though the last DRO said I tried to do everything right and VA dropped the ball multiple times (I wont bore anyone with details) I got a call from my rep last week suggesting that I not only remove my request for another DRO review but that I should also switch from a teleconference to a travel board as "everyone here at the RO (Buffalo) agrees with you, they just feel that they don't have the authority to approve the claim".

So it gets kicked up to BVA who will probably remand it back to Buffalo and I wait and wait and wait. All over $15000 or so in back pay. If nobody at the RO level can approve that then it is no wonder orders to give us the benefit of the doubt are ignored. Nobody wants to dare get their #$%& slapped for "giving away" money.

Sad.......

[Berta]

"I got a call from my rep last week suggesting that I not only remove my request for another DRO review but that I should also switch from a teleconference to a travel board as "everyone here at the RO (Buffalo) agrees with you, they just feel that they don't have the authority to approve the claim"."

Yeah right - I hope he isn't one of my former reps at Buffalo-

His idea would certainly string the claim out even more.

Quint you probably know the BVA awarded my AO death claim last year. The decision even states that Buffalo had multiple copies of 3 IMos and other evidence that they ignored for years.

Buffalo sent me the award letter and I actually got 3 because I questioned each one they sent- I was ready to send them another letter but the IHD regs came into play-and luckily my IHD claim went to the Nehmer people in Phila VARO.And that will resolve my issues I hope.

Buffalo refused to refund my FTCA offset.

I had to go not only over their head but over the Regional Counsel in Buffalo's head.

I got my money. Almost a year after my award- disgraceful.

You might consider preparing a letter for the OGC. Call them first to see who would be best staff attorney to direct it to.

Mike Daugherty used to handle claims questions.You can tell him I gave him your name for direction here but I think he might now have a different MOS with the OGC.

"everyone here at the RO (Buffalo) agrees with you, they just feel that they don't have the authority to approve the claim".

Is this statement documented by the VA?

There are individuals at Buffalo who are completely unable to make a decision that might cost VA some cash.That is why they ignored the regs that I sent to support my offset refund.

OGC didnt ignore them and ordered them to pay me.

If the RO doesnt have the authority to grant the claim-but they are agreeing with the claim- then you need to find someone who has authority and who can read at the VA.Their lawyers might be able to help.

Office of General COunsel 1-202=461-4900

Fax 1=202=273-6385

[Quint7]

Thanks Berta. Yep Buffalo is Buffalo. I talked to my rep there (who has finally agreed that my rep here does nothing so he is willing to talk directly instead of saying "call your rep in Rochester) and he used those words about his conversations with the DRO. I brought up that VARO has to have someone that can approve it and he said everyone there wants a judge to decide it. Ugh. He did say he would submit a request for a "statement of the case" which should list all reasons for/against in it and should be useful during the travel board. That is supposed to take less than a month he said.

I listened to Tammy Duckworth on NPR a week or two ago and she is so disconnected with reality it is sad. And I say that not as a knock against her, but she said flat out that VA changed to always give vets the benefit of the doubt or as she said the baserunner gets the call when there is a tie just like in baseball. Sure........

[carlie]

The BOD is only for application when the evidence is in relative equipoise.

[Berta]

Maybe they will commit a CUE in the SOC.

The dream of my life is to get the VAOIG into Buffalo VARO.

[retiredat44]

Thanks Berta. Yep Buffalo is Buffalo. I talked to my rep there (who has finally agreed that my rep here does nothing so he is willing to talk directly instead of saying "call your rep in Rochester) and he used those words about his conversations with the DRO. I brought up that VARO has to have someone that can approve it and he said everyone there wants a judge to decide it. Ugh. He did say he would submit a request for a "statement of the case" which should list all reasons for/against in it and should be useful during the travel board. That is supposed to take less than a month he said.

I listened to Tammy Duckworth on NPR a week or two ago and she is so disconnected with reality it is sad. And I say that not as a knock against her, but she said flat out that VA changed to always give vets the benefit of the doubt or as she said the baserunner gets the call when there is a tie just like in baseball. Sure........

how and who could prove that any rule of doubt was applied correctly? rhetorical...