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).

[carlie]

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.

mrp,

Start a new topic with your question in the Claims Benefits Forum.

Post the exact wording from the Reasons and Bases Section for the denial.

But to answer your question - no that alone does even begin to put the

evidence of record into relative equipoise - which is REQUIRED in order

for the application of the BOD.

[GuaymasJim]

I believe that we often lose sight of the actual wording of 38 U.S.C 5107, which includes:

"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." (My emphasis)

BOD doesn't just come into play at the end when a claim is award or denied; it is also supposed to be applied during all of the smaller decisions on individual pieces of evidence a rater makes leading up to the award or denial of a claim. The operative word is "any."

The ultimate award or denial of a claim is based on all of those individual smaller decisions. If the veteran was not afforded BOD on the preliminary decisions during adjudication, the veteran's evidence may never be viewed as being balanced between positive and negative when it actually is.

It almost goes without saying that if, as we see so often here on hadit, the veteran's evidence is completely ignored, then the veteran has suffered two distinct violations of the due process rights contained in 5107.

I agree wholeheartedly with Berta, Carlie, and others that the new PTSD regulations violate veterans' rights to due process. Hopefully, the court will agree.

[Berta]

"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."

MRP - can you scan and post the denial and attach here (cover Personal info)as to their Reasons and Bases?

Although the C & P doc said the magic words- as Carlie said-there is usually more to it then that- was it a question of no stressor verification?

Did the VA have medical records that contradicted the C & P findings?

[mrp]

thanks for you time to try to help me.

I will need some assistance to try to scan.

They posted the words of the C+P examiner which seemed supportive to me, especially since the issue seemed to be a medical opinion--

but denied by stating that my condition was "diagnosed" and not "undiagnosed illnesses" which would

qualify as presumptive due to Gulf War. I have Neuropathy which is Idiopathic ( that is , no known cause despite extensive testing).

I had a VA neurologist state that it could be due to exposure in Gulf War, and also had the statement from the C+P examiner -at least as likely as not.

I feel that the rater was making a medical opinion which was counter to the examiner.

[Berta]

We have a lot of info here in the GWV forum.

It has to be a "qualifying chronic disability" to include undiagnosed illnesses.

Did a rep help you ? Didn't the rep present the claim right?

We did some SVR shows available here too as to GWV claims.

And there is I believe a recent fast letter on them.

VA does not recognize Gulf War Syndrome as a disability it itself- what they recognize as GW illnesses can be confusing.

It pays to read over the regs very carefully to make sure the claim fits into their criteria.

[mrp]

I did use a rep ( state VSO). I have learned alot reading the GWV forum as well as the others.

The VSO said to me, and in writing in the appeal, that they just didn't understand why it was denied.

I believe that the raters were confused about the GWI criteria. I even used a copy of the recent Training Letter ( 10-01)

to show that I met criteria, since this seemed to clarify what they missed the first time. It really came down to a medical opinion,

and it just seems that the medical opinion was completely ignored. It is now pending BVA. I suspect it will prevail , but someday in the far away future.