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Benefit Of The Doubt Rule Must Be Applied

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

retired,

Actually when reviewing all the evidence of record it would be quite

easy to prove. It could be done by a VSR,VSO,DRO,Judge etc....

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Carlos, my evidence is tipped my way by well over half. My claim involves failure to notify me of decisions, failure to notify me of exams, failure of VA employees to follow their own rules about these notifications, etc.

My rep made it pretty clear that it comes down to nobody at the VARO being willing to put their own ne k on the line when "a judge can make that ruling". I even included the recent Fast Letter about how VA employees are denying claims due to failure to appear when the reason the vet was a no show was because VA screwed up. That massive document (it was some 50+ pages) states in it that VAROs can and should correct these.

VAs biggest problem is that they don't follow their own rules or guidelines. But everyone here knows that already.

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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)

Quint,

It may have been just lip service because if the DRO truly felt this way, the DRO has fully authority to grant what ever was in question

and that would have been the end of it right then and there.

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Carlos, my evidence is tipped my way by well over half. My claim involves failure to notify me of decisions, failure to notify me of exams, failure of VA employees to follow their own rules about these notifications, etc.

My rep made it pretty clear that it comes down to nobody at the VARO being willing to put their own ne k on the line when "a judge can make that ruling". I even included the recent Fast Letter about how VA employees are denying claims due to failure to appear when the reason the vet was a no show was because VA screwed up. That massive document (it was some 50+ pages) states in it that VAROs can and should correct these.

VAs biggest problem is that they don't follow their own rules or guidelines. But everyone here knows that already.

This seems more like due process and duty to assist issues versus relative equipoise

and benefit of the doubt.

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shouldn't this benefit of doubt rule apply when the C+P examiner states that a condition is :

at least as likely as not due to service -connection.

I had a claim denied despite this , now long wait for BVA.

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