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).

[broncovet]

The regulations contradict each other. As was pointed out, the regulations state the BOD is applied on "ANY" material issue, but, this is contradicted, because, for, example, BOD does not apply to CUE, and it also does not apply to establish eligibility. There, a much higher standard applies, "preponderance of evidence". In Cue, there is no "benefit of the doubt" but, instead, it has to be "undebateable".

As a result, the VA can often justify their decision either way.

On a more practical matter, however, there is a clear cut "pecking order" in the VA as there was in the military. We called it a "chain of command". There is not much doubt in my mind that "lower level" rating specialists do not want to "stick their neck out" and approve a large retro. Remember a large retro is essentially an admission of error. Why else could it possibly take, say, 10 years to process a claim (for a large retro)? There HAD to be errors or it would have been approved years ago.

So, does a rookie rating specialist want to risk his job by approving a large retro, when one of his peers has already denied it earlier? I dont think so. Even if they are a senior DRO rater, they are unlikely to "go against" their peers to approve a large retro that one of the others has already denied. For this reason, I think it is probably productive to "skip" the DRO review in large retros, and instead send it "uphill" to the BVA judge. The BVA judge has the undisputed authority to overturn DRO and rating specialists, and will do so if he feel it is justified.

Of course, the "hampster wheel" remand at the BVA creates a problem, where the BVA judge remands it to the RO, the ro denies, the Veteran appeals, the BVA remands it again, etc. The only way to get it off that hampster wheel is to:

1. Appeal the BVA remand and send it to the CAVC.

2. Try to make your claim "remand proof". This will take lots of preperation and research. You will have to find out what instances are remanded, find out which ones are not, and not leave your claim to chance about remand.