Balance Of Positive And Negative Evidence (Relative Equipoise)

[Tbird]

BALANCE OF POSITIVE AND NEGATIVE EVIDENCE (RELATIVE EQUIPOISE)

§ “When after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.” 38 U.S.C.A. § 5107(b) (West 1995).

38 USC 5107

NB: This unofficial compilation of the U.S. Code is current as of Jan. 5, 2009 (see http://www.law.cornell.edu/uscode/uscprint.html).

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TITLE 38 - VETERANS BENEFITS

PART IV - GENERAL ADMINISTRATIVE PROVISIONS

CHAPTER 51 - CLAIMS, EFFECTIVE DATES, AND PAYMENTS

SUBCHAPTER I - CLAIMS

§ 5107. Claimant responsibility; benefit of the doubt

(a) Claimant Responsibility.— Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.

(b) Benefit of the Doubt.— The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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.

(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4106, § 3007; renumbered

§ 5107 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub.

L. 102–83, § 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 106–398, § 1 [[div.

A], title XVI, § 1611(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–359; Pub. L. 106–419, title I, § 104©(2),

Nov. 1, 2000, 114 Stat. 1828; Pub. L. 106–475, § 4, Nov. 9, 2000, 114 Stat. 2098.)

Amendments

2000—Pub. L. 106–475 substituted “Claimant responsibility; benefit of the doubt” for “Burden of proof; benefit of the doubt” in section catchline and amended text generally. Prior to amendment, text read as follows:

“(a) Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. Such assistance shall include requesting information as described in section 5106 of this title.

“(b) When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each

such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section.”

Pub. L. 106–398, § 1 [[div. A], title XVI, § 1611(a)], directed the general amendment of the section catchline and text.

Pub. L. 106–419, § 104©(2), provided that, as of the enactment of Pub. L. 106–419, the amendment made by Pub.

L. 106–398, § 1 [[div. A], title XVI, § 1611(a)], was deemed for all purposes not to have taken effect and that Pub. L.

106–398, § 1 [[div. A], title XVI, § 1611(a)], ceased to be in effect.

1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3007 of this title as this section.

Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places.

Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’Administration”.

Pub. L. 102–40, § 402(d)(1), substituted “5106” for “3006”.

Subsec. (b). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” before “the burden”.

Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’

Administration”.

Effective Date of 2000 Amendment

Pub. L. 106–475, § 7, Nov. 9, 2000, 114 Stat. 2099, provided that:38 USC 5107

NB: This unofficial compilation of the U.S. Code is current as of Jan. 5, 2009 (see http://www.law.cornell.edu/uscode/uscprint.html).

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“(a) In General.—Except as specifically provided otherwise, the provisions of section 5107 of title 38, United States Code, as amended by section 4 of this Act, apply to any claim—

“(1) filed on or after the date of the enactment of this Act [Nov. 9, 2000]; or

“(2) filed before the date of the enactment of this Act and not final as of that date.

“(b) Rule for Claims the Denial of Which Became Final After the Court of Appeals for Veterans Claims Decision in the Morton Case.—(1) In the case of a claim for benefits denied or dismissed as described in paragraph (2), the Secretary of Veterans Affairs shall, upon the request of the claimant or on the Secretary’s own motion, order the claim

readjudicated under chapter 51 of such title, as amended by this Act, as if the denial or dismissal had not been made.

“(2) A denial or dismissal described in this paragraph is a denial or dismissal of a claim for a benefit under the laws

administered by the Secretary of Veterans Affairs that—

“(A) became final during the period beginning on July 14, 1999, and ending on the date of the enactment of this Act; and

“(B) was issued by the Secretary of Veterans Affairs or a court because the claim was not well grounded (as that term

was used in section 5107 (a) of title 38, United States Code, as in effect during that period).

“(3) A claim may not be readjudicated under this subsection unless a request for readjudication is filed by the claimant,or a motion is made by the Secretary, not later than 2 years after the date of the enactment of this Act.

“(4) In the absence of a timely request of a claimant under paragraph (3), nothing in this Act [see Short Title of 2000

Amendments note set out under section 101 of this title] shall be construed as establishing a duty on the part of the Secretary of Veterans Affairs to locate and readjudicate a claim described in this subsection.”

Effective Date

Section effective Sept. 1, 1989, see section 401(a) of Pub. L. 100–687, set out as a note under section 7251 of this title.

Source: http://www.law.cornell.edu/uscode/pdf/uscode38/lii_usc_TI_38_PA_IV_CH_51_SC_I_SE_5107.pdf

[broncovet]

IMHO the reason the "doctrine of equipose" does not work at the VA is because the VA choses not to apply it because every Veteran is assumed to be "guilty" of not deserving his benefits. In other words until/unless he can "prove" otherwise, he gets no benefits. No Veteran is ever paid any compensation until/unless he can "prove" he is entitled to benefits.

In law, that would be like throwing someone in jail until they can prove innocence.

So thats like saying, "Ok we are holding you in jail until you can prove your innocence, but if you can at least prove that you are "at least as likely as not" innocent, we will let you go on bail. We will use the 50/50 standard.

The problem with this is how do you prove you did NOT kill someone...well lets see...I dont own a gun...gee yes, I could have borrowed one..but he was my friend so I had no reason to kill him...I tried to find witnesses to prove I was NOT there, but I was asleep at the time, and living in a different country.....oh, I know, I would have had to have flown there, shot him, then retruned and there are no records of me flying...oh, yes, I guess I could have chartered a plane..but how would I have afforded that...Oh, how about DNA? Oh, right my absence of DNA does not prove I was NOT there, it just proves I did not leave any DNA on the scene...Wait a minute! This is America! Veterans fought so YOU HAVE TO PROVE my guilt..I dont have to prove my innocence! Well, that is, for everything EXCEPT Veterans benefits, and then its guilty until proven innocent.

[Berta]

In the 20 years plus I have been around the VA block, this regulations still remains as the ultimate essence of the VA claims process.

Even though we do not get the same rights as anyone in a Civil court of Law (I always feel the VA should honor the concept of Discovery when they prepare a decision.(Meaning let the veteran know of all negative evidence BEFORE they deny)

This is why it is imperative for a vet or widow to get those C & P results right away- as they can then begin preparing for any potential denia and start accessing more evidence.

Unlike a civil court of law-we do have this standard of Benefit of Doubt (Relative Equipoise) that ,in my opinion,is better than normal civil rights in court.

The Relative Equipoise standard is often not a difficult one for many many claims.Other claims need IMOs or other types of evidence that can be either costly or difficult to find.

I personally have always provided VA with a preponderance of evidence.When you start looking hard, it is amazing what you can find.Except for one claim I had denied years ago but they awarded the claim on a different basis.I didn't have enough evidence for that one.

But that old claim now has become the "denied" AO claim that will produce me retro under Nehmer.

One can never have enough evidence, in my opinion.

And what might seem like an obscure finding (I had this experience too overlooking a med term that I misnderstood) could potentially be the smoking gun.